Is Racially Biased Testimony Wrongly Subjecting Intellectually Disabled Defendants to the Death Penalty?Posted: February 16, 2018
The U.S. Supreme Court's 2002 decision in Atkins v. Virginia categorically bars states from executing any person who has Intellectual Disability. (Daryl Atkins is pictured.) However, as reported in recent stories in Pacific Standard Magazine and the newspaper, The Atlanta Black Star, some states have attempted to circumvent the Atkins ruling by using social stereotypes and race as grounds to argue that defendants of color are not intellectually disabled. Prosecutors in at least eight states have presented opinions from expert witnesses that "ethnic adjustments" should be applied to IQ tests and tests of adaptive functioning that would deny an intellectual disability diagnosis to Black or Latino defendants who, if they were White, would be considered intellectually disabled and ineligible for the death penalty. "Ethnic adjustments" typically take one of two forms. One adjustment purports to compensate for perceived racial bias in IQ testing by boosting the defendant's IQ scores. A second form of adjustment is determining, based upon the expert witness's subjective views about a defendant's social conditions and culture, that impairments in day-to-day functioning that would be considered adaptive deficits for White defendants are not as rare for a person with the defendant's racial, ethnic, and socio-economic background, and so are not evidence of intellectual disability. Robert M. Sanger, a trial lawyer and professor of law and forensic science at Santa Barbara College of Law in California who wrote the 2015 law review article IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins called the use of these adjustments "outrageous." “What these so-called experts do," Sanger says, "is say that, because people of color are not as likely to score as well on IQ tests, you should, therefore, increase their IQ scores from 5 to 15 points to make up for some unknown or undescribed problem in the test.” Sanger has documented the use of ethnic adjustments by prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio. “The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound,” Sanger wrote. IQ scores, he says, are affected by a variety of environmental factors "such as childhood abuse, poverty, stress, and trauma[, that] can cause decreases in actual IQ scores." Because people who experience these environmental factors "disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death." Moreover, the courts have repeatedly rejected the adjusting of test scores on the basis of race in cases that would benefit racial minorities, Sanger said, most prominently in cases in which African-American applicants for police or firefighting jobs had alleged that cities were using racially discriminatory tests. Sanger says "it’s sort of outrageous that you can adjust scores upward so you can be killed, but not so you can get a job.” In 2011, the Texas State Board of Examiners of Psychologists reprimanded psychologist Dr. George Denkowski for his misuse of ethnic adjustments in death-penalty cases. As part of an agreement dismissing disciplinary charges against him, Denkowski—who testified against sixteen Texas death-row prisoners, several of whom have been executed—was fined $5,500 and agreed that he would never again conduct intellectual disability evaluations in criminal cases. On January 4, 2018, Philadelphia prosecutors, who had used Denkowski's ethnic adjustments as part their argument that Pennsylvania death-row prisoner Jose DeJesus was not intellectually disabled, agreed that DeJesus should be resentenced to life. Ethnic adjustments are only some of the non-scientific barriers states have erected to avoid compliance with Atkins. In 2014, the U.S. Supreme Court ruled in Hall v. Florida that Florida had unconstitutionally emplyed an IQ cut-off score to reject claims of intellectual disability. In 2017, in Moore v. Texas, the court rejected the state's use of a set of unscientific lay stereotypes to claim that a defendant did not have the adaptive deficits necessary to be considered intellectually disabled. The Court called Texas's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." Moore reiterated that a court’s determination of intellectual disability in a death-penalty case must be “informed by the medical community’s diagnostic framework."
A bipartisan bill to abolish the death penalty in Washington passed the state Senate on February 14 on a 26-22 vote. SB 6052 now moves to the House of Representatives, where the chairwoman of the House Judiciary Committee has said it will be given a hearing. "Today, the Washington State Senate took an historic, bipartisan vote, passing Attorney General-requested legislation to eliminate the death penalty and replace it with life in prison without possibility of parole," said incumbent Democratic Attorney General Bob Ferguson. He, his Republican predecessor Rob McKenna, and Governor Jay Inslee had asked the legislature to take up the measure. The bill also received support from Republican King County prosecutor Dan Satterberg, and five Republican senators voted for its passage. During an emotional debate on the floor of the senate, Sen. Mark Miloscia (R - Federal Way) told lawmakers, "all people deserve to live." Miloscia, who is one of the bill's co-sponsors, said, "I'm here to ask for mercy, literally for the worst among us." Sen. Maureen Walsh (R - Walla Walla), another sponsor of the bill, said "We spend a lot of money, our tax money, appealing these decisions, and we have done this for many, many years. I have no sympathy for people that kill people, that's not why I'm doing this. I'm doing this maybe because I feel like it's somewhat our responsibility as legislators to vet these issues here in this forum, in this venue." A third co-sponsor, Sen. Reuven Carlyle (D - Seattle), raised ongoing concerns about the risk of executing innocent defendants. "You cannot read a front page story about DNA mistakes that has someone in jail for 35 years and not be jolted to the core," he said. "That has transformed the public's view of this issue." Governor Inslee, who imposed a moratorium on executions in 2014, described the vote as reflecting “an increasing recognition of the public that this is not an effective and certainly an unequal administration of justice and is no longer acceptable in the state of Washington.” "I hope Washington joins the growing number of states that are choosing to end the death penalty," he said. Before the final vote, Senators voted down two amendments that would have narrowed the death penalty, but not eliminated it, and a third amendment that would have put the issue to voters in a public initiative. Ferguson called on the House to join the Senate in passing the measure. The bill, he said, provided the House "the opportunity to abolish our broken death penalty."
Pentagon Fires War Court Official Who Was Attempting to Negotiate End to Guantánamo Death-Penalty TrialPosted: February 14, 2018
The sudden firing by U.S. Secretary of Defense Jim Mattis (left) of the Pentagon official who oversaw military commission trials at Guantánamo Bay has raised concerns of political interference in the already tumultuous legal proceedings in the death-penalty trials of the five men charged with plotting the 9/11 attacks on the United States. The New York Times reports that Mattis fired Harvey Rishikof (right), who served as the Convening Authority of the Guantánamo tribunals, as Rishikof was engaged in plea negotiations that would potentially have spared the Guantánamo defendants the death penalty in exchange for pleading guilty to the September 11 attacks. The Pentagon provided no explanation for the February 5 firing, and David Nevin—who represents accused attack-mastermind Khalid Shaikh Mohammed—told The Times that “[t]he firing fairly raises the question" of whether the Pentagon was attempting to unlawfully influence the convening authority. The Office of the Convening Authority is responsible for approving cases for trial, plea agreements, reviewing convictions and sentences, and providing resources to defense teams. Military law prohibits even the appearance of “unlawful command influence” over the handling of a case. Nevin said the defense has "an obligation to try to learn everything we can" about possible improper influence, and he has asked prosecutors to turn over information relating to Rishikof’s firing. At the same time Rishikof was dismissed, the Pentagon's acting general counsel, William S. Castle discharged Rishikof's legal advisor Gary Brown, also without explanation. Brown and Rishikof’s firings have focused renewed attention on the dysfunctional military tribunals at Guantánamo. The death-penalty trial of Abd al Rahim al Nashiri, accused of planning the bombing of the U.S.S. Cole in Yemen, was thrown into chaos in October 2017 when his entire civilian defense team resigned amid allegations that military officials had violated attorney-client privilege by eavesdropping on legal meetings at the Cuban facility. Rishikof intervened in that case after the judge, Air Force Colonel Vance Spath, held the chief defense counsel for the Military Commissions Defense Organization, Marine Brig. Gen. John Baker, in contempt for allowing the resignations. Spath has directed that proceedings in the U.S.S. Cole case continue without expert death-penalty counsel, even though the only remaining member of Nashiri's defense team, Lieutenant Alaric Piette, graduated law school in 2012, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” On February 5, Piette, who stayed on the case out of concern for his client’s rights, told The New York Times: “I don’t know if I’ve done the right thing, but I don’t think I really had a choice.” Piette “doesn’t come close to being qualified" to handle the case, according to Ellen Yaroshefsky, a professor of legal ethics at Hofstra University. “So a death penalty case is basically going forward without a lawyer. If that is what we think passes as a court system, we’re in big trouble,” she said.
An analysis by the Utah Commission on Criminal and Juvenile Justice of the cost of capital punishment has found that cases in which prosecutors seek the death penalty are more costly than cases in which life without parole was the maximum sentence. The Commission's Death Penalty Working Group reviewed recent studies of death-penalty costs in Utah and across the country and found that, while there was disagreement about the magnitude of the cost difference, there was consensus that the death penalty was more expensive than non-capital alternatives. The two Utah studies included in the report were a 2012 analysis that estimated the death penalty added $1.6 million over the life of each case, compared to life without parole, and a 2017 study of the last 20 years that found that Utah spent about $40 million on 165 death-eligible cases, which resulted in just two death sentences. The report also reviewed recent public opinion data on the death penalty from polls administered both nationally and in Utah. Noting what it called "somewhat discrepant" results from recent Utah polls depending upon the questions respondents were asked, the report concluded "based on national data ... and consistently lower support from younger respondents in the Utah polls" that "public support for the death penalty in Utah is declining over previous highs." The working group also examined Utah's aggravating circumstances, which make cases eligible for the death penalty, and the impact of the death penalty on victims' familiy members (whom it called "covictims"), but did not draw any conclusions on either. The report did note that victims in non-capital cases have a greater opportunity to be heard because their non-testimonial statements to the court are not limited by the rules of evidence that apply to testimony in capital cases. It quoted the academic literature on the impact of capital prosecutions, saying that the assumption that the death penalty provides closure is "unproven ... The process of dealing with murder and capital punishment is different for every covictim" and there is no guarantee that the death penalty will enhance recovery. While the commission did not make any policy recommendations based on its findings, Utah Conservatives Concerned About the Death Penalty said the report points to the need for a reconsideration of Utah's death penalty. "This report should give pause to anyone who thought that because capital punishment is so rarely used in Utah that the cost of maintaining a death penalty would be negligible," said Kevin Greene, the group's director. "We have been spending tons of money without much in return and we hope lawmakers will closely examine the report and agree that the death penalty is anything but fiscally conservative."
Five prisoners on death row in Pennsylvania have filed a class-action lawsuit challenging the Commonwealth's policy mandating solitary confinement for all condemned prisoners. The five named plaintiffs have been held in solitary confinement between 16 and 27 years each, kept in cells the size of a parking space, allowed out for a maximum of two hours per day for exercise, and denied human contact with family members during prison visits. The prisoners, represented by the American Civil Liberties Union, the Abolitionist Law Center, and three law firms, call these conditions "degrading" and "inhumane" and say the "policy and practice of automatically and permanently placing all death-sentenced prisoners in solitary confinement" is unconstitutionally cruel and unusual punishment. David Fathi, director of the ACLU National Prison Project, said Pennsylvania's death-row solitary confinment "until either the prisoner is executed, or dies of natural causes, or has his death sentence overturned is very different from the way solitary confinement is used for all other prisoners. For all other prisoners, you earn your way in and you earn your way out. You serve your punishment, and, if you behave, you can come back to the general population.” While many states still keep death-row prisoners in solitary confinement, that practice is changing. At least eight states have recently allowed death-row prisoners more time outside their cells, including Arizona, which changed its policy in 2017 in response to a similar lawsuit. According to the Pennsylvania suit, however, about 80% of those currently on death row have been held in solitary confinement for more than ten years. The United Nations' Standard Minimum Rules for the Treatment of Prisoners prohibits solitary confinement for periods longer than 15 days. One of the named plaintiffs in the lawsuit who has been held in solitary confinement for 21 years "describe[d] his experience as ‘psychological torture,’ where prisoners are ‘treated like animals’ and forced to ‘depend on everybody for everything.'" The lawsuit says "[h]e feels ‘trapped in [his] cell’ – and his ‘mind is like a popcorn machine.’” Pennsylvania's death-row conditions were challenged in 1980, but upheld by a federal court. “In the intervening time, there has been a sea change in the scientific understanding of solitary confinement and increasing recognition by the courts that this crosses constitutional boundaries when it is prolonged,” said Bret Grote of the Abolitionist Law Center. Just last year, a federal court ordered Pennsylvania to end its practice of keeping prisoners in solitary confinement even after their death sentences had been vacated, until they were formally resentenced or released. The retrial or resentencing process often took many years and, in some cases, took decades.
Ohio Governor John Kasich (pictured, left) has granted a reprieve to Raymond Tibbetts (pictured, right), temporarily halting his execution to permit the Ohio Parole Board to consider a juror's plea for mercy in the case. In a February 8 letter to parole board Chairman Andre Imbrogno, the Governor requested that the Board convene a hearing to consider concerns about the case raised by Ross Geiger, one of the Tibbetts jurors. To facilitate that review, Kasich issued a temporary reprieve of Tibbetts’s execution, rescheduling it from February 13 to October 17, 2018, “unless further reprieve or clemency is granted.” On January 30, Kasich received a letter from Geiger alerting the Governor to Geiger’s “deep concerns about the trial and the way it transpired.” Geiger said the jury had never been given critical information from witnesses and institutional records that detailed Tibbetts's brutal upbringing, abandonment, and abuse in the foster care system and that “prosecutors got it wrong if not lied” to the jury about Tibbetts’s siblings having overcome that abuse to live normal lives. Geiger told the Governor “that the system was and seems to be today very flawed in this case.” He said, “if I had known all the facts, if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts’ severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death.” In the Governor’s letter to the Board, Kasich wrote: “Mr. Geiger claims that had he known then all of the information presented at Inmate Tibbetts’ 2017 clemency hearing, including the testimony of Inmate Tibbett’s sister, he would not have voted to recommend death back in 1997. Since this letter was received by me after the board's hearing and vote on Inmate Tibbetts’ case, I would like the board to review his case in light of this new information.” In a statement, Tibbetts’s attorney, Erin Barnhart, said that Geiger’s letter provided “incontrovertible proof that Mr. Tibbetts never would have ended up on death row had the system functioned properly” in his case. She praised Kasich for “act[ing] in the interests of fairness and justice” and said the Governor “has done our State a great service today by ensuring that careful consideration is given” to the new information from Geiger. Barnhart said the defense was “confident” that after considering Geiger's concerns, “the Board and the Governor will agree that clemency is appropriate to correct the failures in the legal process in this case.”
On February 5, the American Bar Association (ABA) House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." The ABA first opposed applying the death penalty against defendants younger than age 18 in a resolution adopted in 1983. In 1988, in Thompson v. Oklahoma, the U.S. Supreme Court cited that ABA resolution as part of the evidence that "it would offend civilized standards of decency to execute a person who was less than 16 years old at the time of his or her offense." Seventeen years later, in Roper v. Simmons (2005), the Court extended the prohibition against executing juveniles to include all defendants under age 18 when the offense occurred. The ABA's report says "[t]he ABA has been – and should continue to be – a leader in supporting developmentally appropriate and evidence-based solutions for the treatment of young people in our criminal justice system, including with respect to the imposition of the death penalty." It cites recent litigation challenging the death penalty for defendants under 21, including a ruling by a Kentucky trial court that said “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The report also highlights new research on the development of the adolescent brain and legislative trends affording juvenile status or similar protections to people in their early twenties. The report concludes, "this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders."
Raymond Wallace Shuman (pictured), whose case led to a 1987 U.S. Supreme Court decision affirming the unconstitutionality of mandatory death sentences, has died in a Nevada prison at age 83. Shuman, one of the longest-incarcerated prisoners in Nevada history, was serving a life sentence for a 1958 murder when he was convicted of killing a fellow prisoner in 1973. At that time, Nevada law mandated the death penalty for life-sentenced prisoners convicted of another first-degree murder. Then, in 1976, the U.S. Supreme Court issued a series of decisions upholding the constitutionality of capital punishment, but overturning mandatory death-penalty statutes in North Carolina and Louisiana. The 1976 cases established an individualized-sentencing requirement pursuant to which no one could be sentenced to death without first having the opportunity to present reasons to spare his or her life. Shortly thereafter, Nevada repealed its mandatory death sentencing law. Shuman, who was the first prisoner to face execution in Nevada after the 1976 rulings, challenged the constitutionality of his sentence as violating the Eighth and Fourteenth Amendments. The Nevada Supreme Court upheld Shuman's death sentence. Shuman's lawyers then presented the issue to the Nevada federal courts, which declared the state's mandatory capital-punishment statute unconstitutional. The prosecution appealed, arguing that the Supreme Court's 1976 decisions had left open the question of whether the death penalty could be mandated in certain extremely narrow classes of cases such as prison killings by life-sentenced prisoners. The U.S. Supreme Court agreed to review the case and, in a 6-3 ruling in Sumner v. Shuman, issued on June 22, 1987, the Court declared the statute unconstitutional. In his opinion for the Court, Justice Harry Blackmun wrote: "Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence." That evidence included the nature of the defendant's prior conviction—Blackmun noted that Shuman had not been the triggerman in the 1958 murder—the defendant's background, life history, upbringing, and mental health, and any mitigating aspect of the circumstances of the offense. Shuman died around 2:25 p.m. on February 4 at the Carson Tahoe Regional Medical Center in Carson City, according to the Nevada Department of Corrections.
The latest effort by death-penalty proponents to reinstate the death penalty in New Mexico has died in a House committee. House Bill 155, which would have brought back the death penalty for murders of children, police officers, and corrections employees, was tabled by the House Consumer and Public Affairs Committee by a 3-2 vote following a Saturday hearing on the bill on February 3, 2018. The bill, introduced by Albuquerque Rep. Monica C. Youngblood, was the fifth and, according to news reports, likely the final attempt under Gov. Susana Martinez to bring back the death penalty in the state. Youngblood has sponsored or co-sponsored each of those bills. In October 2017, death-penalty proponents had attempted to make the restoration of the death penalty an election issue, introducing the bill during a special legislative session that had been called to address the state's budget crisis and holding a pre-dawn hearing on the bill with no advance public notice on October 5. That bill passed on a party-line vote in the House before dying in the Democratic-controlled State Senate. Then, in the November elections, death-penalty supporters lost control of the House. Media accounts reported that this time “a long line of opponents waited for their three minutes to oppose the bill” during the committee's public hearing, while only four speakers—two of whom worked for the Governor—advocated for the bill. Department of Public Safety Secretary Scott Weaver and Secretary of Corrections David Jablonski each argued that the death penalty was an important tool for law enforcement. Five religious leaders, including a representative of the New Mexico Council of Catholic Bishops, spoke against the bill. Bennett Bauer, the state’s chief public defender, argued that the death penalty was not a deterrent and would be applied unequally throughout the state. The bill's sponsors asserted that the murders it subjected to capital sanctions were limited to the "worst of the worst" cases. However, the bill defined “children” as any victim under age 18—which would have been the broadest definition of "child victim" in any death-penalty statute in the United States. According to a DPIC review of recent FBI Uniform Crime Statistics, that definition would have encompassed 8%-9% of all murders. A DPIC study of FBI annual data on Law Enforcement Officers Killed & Assaulted over the past twenty-nine years also indicated that having the death penalty did not make law enforcement officers safer. Describing the study's findings, DPIC executive director Robert Dunham said, “When you look at the officer-victim rate, you see—as we did with murders generally—that officers are disproportionately killed in states that have the death penalty, as compared to states that don't.” The DPIC data showed that “Eight of the nine safest states for police officers were states that either did not have the death penalty at any time in the study period or … states that recently abolished capital punishment. By contrast, death penalty states comprised 22 of the 25 states with the highest rates of officers murdered in the line of duty.” New Mexico’s high rate of law enforcement deaths was the exception. But the data showed the state’s significantly higher-than-average rate of violence against police officers long predated its abolition of the death penalty in 2009.
A juror who served on the capital murder trial of Raymond Tibbetts (pictured) and voted to sentence Tibbetts to death has written to Ohio Governor John Kasich asking Kasich to halt Tibbetts’s scheduled February 13 execution and commute his sentence to life without parole. In a January 30 letter to Governor Kasich, juror Ross Geiger—who, at the time of trial, described himself as a conservative Republican—said after learning the “truly terrible conditions” in which Tibbetts was brought up and the role the prescription of opioid painkillers played in the murder, he had “deep concerns about the trial and the way it transpired.” Geiger told the Governor “that the system was and seems to be today very flawed in this case” and that, “[b]ased on what I know today, I would not have recommended the death penalty.” Geiger became interested in the status of Tibbetts’s case after reading a recent news story about a challenge to Ohio’s method of execution. Researching on his own, he learned of Tibbetts’s pending execution and saw links to the clemency materials filed in the case. “Imagine my anger,” he wrote, “when I was able to review the clemency [materials]” and found “[p]ages of relevant information” that were never provided to the jury detailing “the abandonment, foster abuse, and reabandonment” that Tibbetts had experienced “and that it began before Tibbets was even two years old.” At trial, Tibbetts’s lawyer presented a psychiatrist who provided anecdotal testimony about Tibbetts’s background, but provided the jury with no social service records or family witnesses supporting that testimony. Prosecutors, Geiger said, “dismantled” the defense evidence by arguing that “lots of people with troubled childhoods do not become murderers [and] strongly impl[ying] that Tibbets [sic] siblings turned out fine.” Geiger said his mind was changed when he learned of defense counsel’s ineptitude, that the defense had never asked Tibbetts’s sister to testify, and what he called “[t]he revelation that the prosecutors got it wrong if not lied about Tibbets [sic] siblings having normal lives.” Geiger said he was shocked to learn about the brutal conditions in the foster home in which Tibbetts and his brothers lived, including being tied to a bed, thrown down stairs, having their fingers burned and beaten, and not being fed properly. "In fact," Gieger wrote in an op-ed in the Cleveland Plain Dearer, "of Mr. Tibbetts' four siblings, one committed suicide, one also spent time in prison, one is essentially homeless and unemployed, and only his sister is now doing well, despite having had a very turbulent younger life." Also supporting his plea for mercy, Geiger said that he and his fellow jurors did know that Tibbetts had a history of drug abuse and they were “not aware of the very real problem of prescribing opioids to people with addictive behaviors.” Tibbetts never received mental health treatment for his traumatic childhood and turned to alcohol and drugs to dull the pain. Although he repeatedly tried to combat his addiction, and for several years seemed to have his life under control, he then suffered an on-the-job back injury, for which he was prescribed an opioid painkiller, causing him to relapse into addiction. In the months leading up to the crime, Tibbetts attempted suicide and tried to get into a treatment program, but was turned down. Tibbetts killed two people after a crack-related argument. Geiger told Associated Press that, at the time of trial, he believed the law required him to vote for death based on the evidence the jury had heard and that he now feels "duped by the system." He said, “The state asked me to carry the responsibility for such a decision but withheld information from me that was important.” Ohio prosecutors oppose clemency for Tibbetts, saying that his mitigating evidence does not outweigh the circumstances of the crime.