An attempt by Illinois Governor Bruce Rauner (pictured) to reinstate Illinois' death penalty by attaching it as an "amendatory veto" to proposed gun-control legislation has failed. Rather than accede to a plan that would condition stricter gun regulation upon reintroducing the death penalty for murders of police officers and any murder with more than a single victim, the state legislature rewrote the gun-control measure the governor had amended, dropping any mention of capital punishment. In May, Gov. Rauner used an amendatory veto—a power some governors are granted that permits them to amend legislation in lieu of an outright veto—to add death-penalty reinstatement to a bill that created a 72-hour waiting period for gun purchases. The governor's provisions would have created a new crime of "death penalty murder," potentially applicable whenever a police officer or more than one person was killed, subject to a "proof beyond all doubt." Rauner touted his changes, which also included additional gun control measures, as a comprehensive public-safety policy, but critics called it political grandstanding and state prosecutors objected to its adoption through the veto process without meaningful review and consideration. In a letter to the state House Judiciary-Criminal Committee, John Milhiser, the association's President, wrote: "there is no consensus of opinion on support for the death penalty" among Illinois prosecutors, but they agreed that the proposal "involves constitutional and legal concerns that cannot be evaluated in the brief time thus far allotted." Democratic state Rep. Jonathan Carroll, the gun-control bill's sponsor, said the governor had not consulted him about possible changes and had "hijacked my bill and put politics ahead of policy." The state house held a brief hearing on the bill on May 21, but did not act on it within the 15-day state constitutional window prescribed for consenting to an amendatory veto. On May 31, 2018, the final day of the legislative session, the legislature passed a clean version of the 72-hour waiting period bill, with no mention of the death-penalty proposal. Governor Rauner has 60 days from passage to take action on that bill.
In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."
A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.]
A gay man on death row in South Dakota has asked the U.S. Supreme Court to review his case and to rule that it is unconstitutional for jurors to impose the death penalty based upon anti-gay animus and stereotypes. Charles Rhines (pictured) argues that South Dakota’s courts improperly refused to consider evidence—including an affidavit from one of his jurors that the jury “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison”—showing that jurors in his case improperly based their death verdict on his sexual orientation. In 2017, in Buck v. Davis, U.S. Supreme Court Chief Justice Roberts wrote that “Our law punishes people for what they do, not who they are.” The Court said that a death sentence based on race would be “a disturbing departure from [that] basic premise of our criminal justice system” and ruled that Buck’s lawyer had been ineffective for presenting a witness whose testimony led to a death verdict based on “a noxious strain of racial prejudice.” The same year, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule [under a state rule of evidence] give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ petition asks the Court to rule that states may not refuse to consider evidence of juror animus based on sexual orientation and to declare that death sentences based upon prejudicial homophobic stereotypes are unconstitutional. An affidavit submitted by one of the jurors in Rhines’ case said that there had been “lots of discussion of homosexuality” during deliberations and “a lot of disgust.” While they were deliberating, jurors asked the court whether Rhines would be allowed to “mix with the general inmate population,” “create a group of followers or admirers,” “brag about his crime to other inmates, especially new and[/]or young men,” “marry or have conjugal visits,” or “have a cellmate.” According to an affidavit, one juror advocated against incarcerating Rhines with other men for life imprisonment without parole because it “would be sending him where he wants to go.” Quoting Buck, Rhines’ lawyers wrote, “To allow a juror to vote for a man’s death sentence on the basis of anti-gay animus and stereotypes unquestionably violates the Sixth and Fourteenth Amendments, along with the foundational principle that ‘[o]ur law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.’” South Dakota opposes Rhines’ request, arguing that the constitutional principles that prohibit inquiring into jury sentencing based on racial bias do not apply to “bias based on gender, alienage, or sexual orientation. ... No politician has ever proposed constructing a wall to keep homosexuals out of the country,” the state’s brief says. “No civil war has been fought over [sexual orientation]. No nationwide pogrom has been perpetrated for the enslavement or eradication of homosexuals.” The Court has scheduled a conference for June 14 on whether to review Rhines’ case. [UPDATE: On June 18, 2018, the U.S. Supreme Court denied Rhines’s petition for writ of certiorari, declining to review his case.]
Justice Sotomayor Criticizes Supreme Court For Failing to Intervene in Texas Death-Row Prisoner’s CasePosted: June 4, 2018
Over a strong dissent by Justice Sonia Sotomayor (pictured), the United States Supreme Court on June 4 declined to review the case of Texas condemned prisoner Carlos Trevino, who had argued that his lawyer was ineffective for failing to investigate and present mitigating evidence of Trevino’s brain damage and developmental delays from his extensive prenatal exposure to alcohol. Having failed to investigate, Trevino's lawyer presented only a single witness whom he met for the first time the day of the sentencing hearing. That witness, the defendant’s aunt, provided cursory testimony that Trevino was a high school drop out with an alcoholic mother who was on welfare. The Court’s denial of review let stand a split 2-1 decision of the U.S. Court of Appeals for the Fifth Circuit, which found counsel’s failure to present the fetal-alcohol-related evidence had not been not prejudicial because the “double-edged” character of the evidence could have led the jury to believe that Trevino would pose a continuing threat to society. Penning her sixth dissent this term in a death-penalty case the Court had declined to review, Justice Sotomayor—joined by Justice Ruth Bader Ginsburg—called the circuit court's decision “flagrant error.” The Court, she wrote, has “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” In May 2013, the Supreme Court had reversed a prior ruling of the Fifth Circuit that had refused to review Trevino’s ineffectiveness claim, and remanded his case to the lower federal court to review the issue. After being presented new mitigating evidence that Trevino had fetal alcohol spectrum disorder caused by his mother drinking 18 to 24 cans of beer daily while pregnant, that he weighed 4 pounds at birth, and that his developmental delays (including wearing diapers until he was 8 years old) and cognitive impairments left him functioning at the level of a person with intellectual disability, the circuit court rejected Trevino’s claim. That court dismissed the mitigating value of the evidence, writing that Trevino’s impairments had contributed to his violent history. Justice Sotomayor wrote that, while Trevino had a past history of violence, the prosecution had already presented that evidence at trial, and the new evidence relating to Trevino’s fetal alcohol spectrum disorder—which the sentencing jury had never heard—was important in contextualizing that behavior. A failure to intervene in this case, Sotomayor said, leaves Trevino “subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.’ The Court's refusal to intervene is even more “indefensible” in this case, she wrote, because it “sanctions the taking of a life by the state.”
The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good.
A federal district court has ordered the Alabama Department of Corrections to release its lethal-injection protocol and unseal transcripts and pleadings related to the failed execution of Doyle Hamm. In a May 30, 2018, order, Judge Karon Owen Bowdre, Chief Judge of the United States District Court for the Northern District of Alabama said "how Alabama carries out its executions" is "a matter of great public concern," and ruled that the public's "common law right of access to the sealed records relating to Alabama’s lethal injection protocol" outweighed arguments to keep the records secret. Doyle Hamm was scheduled to be executed in Alabama on February 22. Despite Hamm’s repeated warnings that his terminal illness would make it impossible to establish IV lines, and after an initial stay of execution issued by Judge Bowdre was overturned by the appellate courts, Alabama unsuccessfully tried for more than two hours to set an IV before calling off the execution. Hamm had filed suit against the state seeking to bar Alabama from making a second attempt to execute him. The parties reached a confidential settlement in which Alabama agreed it would not execute Hamm, leaving questions about Alabama's protocol and execution process unanswered. Three media outlets—the Associated Press, The Montgomery Advertiser, and the Alabama Media Group—intervened, seeking public release of the protocol and judicial records. Alabama argued that providing the records to the media would be improper because "the media attempts to gin up public scandal" about the death penalty. The court rejected that accusation as unsupported by any facts, emphasizing that "Public discussion is not the same as public scandal. The public," she wrote, "needs to know how the State administers its laws; without such knowledge, the public cannot form an educated opinion on this very important topic." The court's order allows the state to redact from the records information that could reveal the identities of the individuals who participated in the execution. State officials have not indicated whether they will appeal.
Facing an August 2018 expiration date for two of the drugs in Nebraska's experimental execution protocol, state Attorney General Douglas Peterson (pictured) has asked the Nebraska Supreme Court to expedite consideration of the prosecutor's request to set a July execution date for condemned prisoner Carey Dean Moore. The attorney general has petitioned the court to schedule Moore's execution for July 10 "or alternatively for a date in mid-July," despite the pendency of several lawsuits, which will not be resolved before August, that challenge various aspects of the state's authority and ability to carry out executions. Nebraska intends to use a four-drug execution protocol featuring three drugs—the opiod pain medication fentanyl, the sedative valium, and the paralytic drug cisatracurium—that have never before been used in an execution, followed by the heart-stopping drug potassium chloride. Potassium chloride has been described as feeling like liquid fire if administered to a person who has not been adequately anesthetized. Several challenges to the state's administration of the death penalty that have been filed by the ACLU of Nebraska are currently before the courts. These include a case on appeal before the Nebraska Supreme Court arguing that Governor Pete Ricketts and other state officials "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law enacted by the state legislature over the governor's veto in 2015; and a second lawsuit challenging the state's lack of transparency surrounding execution drugs and team members, which is currently awaiting a trial-court ruling. The state Department of Corrections recently released some documents regarding execution team training in response to a public records request by the ACLU, but refused to provide documents indicating whether and to what extent execution team members had specialized experience or training in intravenous-access procedures or any documents relating to correspondence with doctors or experts regarding lethal injection. ACLU of Nebraska Legal Director Amy Miller said that the documents released by the state provide "no adequate assurance that we would be looking at a smooth, well-conducted execution," and remarked that "[t]he veil of secrecy that has dropped on all matters relating to the death penalty is very concerning." Nebraska has never carried out an execution using lethal injection. Moore, who was sentenced to death in 1980, is Nebraska's longest incarcerated death-row prisoner. At trial, he waived his right to a jury and presented no evidence in his defense. He recently fired his current appointed counsel and has asked to be executed. In a statement released in April, ACLU of Nebraska's Executive Director Danielle Conrad said, "it is precisely because [Moore] is not fighting that our institutions bear extra responsibility to check themselves by ensuring that the laws are followed and that an unlawful and potentially cruel and unusual execution does not take place."
In his May 20 column in the Sunday New York Times, Pulitzer Prize winning columnist Nicholas Kristof (pictured, left) focused national attention on the troubling case of California death-row prisoner, Kevin Cooper (pictured, right) and the disturbing evidence suggesting that San Bernardino police planted blood and other evidence to frame him for murder. Kristof joined DPIC Executive Director Robert Dunham for a Discussions with DPIC podcast to talk about his recent column, Was Kevin Cooper Framed for Murder?, and how police came to focus on a 155-pound Black man as the sole suspect in a grizzly quadruple murder, despite physical and eyewitness evidence pointing to three white men, including one already convicted murderer, as the perpetrators. Kristof explained how an opinion by a federal judge led him to write about the case: "What really struck me about [Cooper's case] was that you had a number of federal judges who not only argued that there was doubt about his innocence, but simply argued that, look, he is innocent, he is framed by the sheriff's office. And one very well respected Ninth Circuit judge, William Fletcher, came out and said he is framed by the San Bernardino County Sheriff's Office, and wrote a hundred-page judicial opinion about that, and that just doesn't happen in the law." He says that his piece on Cooper, the longest column in New York Times history, was also inspired by his own failure, and that of the news media at large, to adequately cover the possible innocence of Texas prisoner Cameron Willingham, who was executed in 2004. Willingham's case garnered a great deal of media attention only after he was executed. "I think Kevin Cooper is innocent," Kristof said, and "I want to write while there's still time to affect the outcome." As he does in his column, Kristof describes the rampant irregularities in Cooper's case that led him to conclude that Cooper had been framed, but he also talks in the podcast about the broader systemic problems that lead to wrongful convictions, especially in cases involving defendants of color. Kristof pointed to the lack of accountability for official misconduct as one of most important systemic issues. "There have to be consequences for police or prosecutors when they engage in this kind of misconduct," he said. "Too often, there are no consequences. We understand that there have to be consequences for bank robbery or murder, but there also have to be consequences for police officers who perjure themselves or sheriff's deputies who plant evidence." Finally, he explains how Cooper's case is emblematic of other problems: "The reason I wrote about the Cooper case is not just because of the injustice, I believe, to one man, but more broadly, because it's a window into the way the criminal justice system is periodically just plain broken, especially with regard to defendants of color or indigent defendants in really sensational cases. Sometimes the system works and sometimes it doesn't, but it shouldn't be a game of lottery when people are arrested and charged with capital offenses."
Courts in Idaho and Indiana are grappling with how to respond to legal challenges to lethal-injection secrecy laws after corrections officials in both states refused to release execution information requested under state public records laws. In both states, officials refused to provide details about execution drugs and their sources, saying that state law insulates the information from public disclosure. In Idaho, Judge Lynn Norton ordered the Department of Corrections to release information about the two most recent executions in response to a public records request filed last year by University of Idaho law professor Aliza Cover seeking information on the state's execution drug purchases, expiration dates and other related information for a project researching the effects of lethal-injection secrecy. Judge Norton ruled that state officials could redact the identities of individuals involved in the executions, including correctional staff members, doctors, and witnesses. Jeff Zmuda, Deputy Director of the Department of Corrections, had argued against public disclosure, saying it endangered public safety and repeating an unsubstantiated claim made by other states that releasing the source of execution drugs would subject the provider to harassment. Judge Norton rejected the state's arguments, finding that revealing the information would not threaten public safety even if execution drugs became unavailable as a result. She said: "If all lethal injection chemicals are unavailable when an execution is scheduled, then such unavailability would not cause an inmate's release from prison. Most states wait for different chemicals to become available while some have adopted alternative forms of execution such as firing squad or electric chair. The court is not aware of any who just release death row inmates into the community." A hearing was held on May 15 in a similar case in Indiana, in which attorney A. Katherine Toomey requested lethal-injection records from the Department of Corrections in 2014. Toomey won a summary judgment in 2016, but the state legislature responded by passing a retroactive secrecy law in 2017, inserting it into a 175-page budget bill after midnight on the final day of the legislative session. The state attorney general's office has claimed that revealing the identities of "individuals who are involved in crafting public policy as it relates to the death penalty ... could subject them to harassment, public shaming and even violence from those who oppose the death penalty." However, Peter Racher, who is representing Toomey in the dispute, said DOC officials indicated during depositions that no one had received threats regarding implementation of the death penalty. Racher called the state's efforts to block the disclosure of execution documents, "insult upon insult to anyone who cares about transparency in government and openness in representative government." If the documents are released, he said, "the Indiana public will know more about one of the most consequential areas of decision making that the state of Indiana engages in.