Texas is scheduled to execute Alvin Braziel, Jr. on December 11, 2018, in what would be the state’s 13th execution of the year. Braziel was 18 years old in 1993 when he killed a man and sexually assaulted a woman after a failed robbery attempt. His age places him just above the legal boundary to be eligible for a death sentence, though recent neuroscience research on brain development indicates the deficits in judgment and impulse control that led the United States Court to exempt juveniles from capital punishment persist through an individual’s early 20s. As a result of that research, the American Bar Association adopted a resolution to bar the death penalty for offenders 21 and under, and a Kentucky trial court ruled that it would be unconstitutional to seek a death sentence against defendants who were under 21 at the time of their crime.
Braziel’s appeals presented evidence that his trial attorney was ineffective and failed to present significant mitigating evidence. His appellate attorneys said Braziel suffered brain damage from head injuries as a child that rendered him intellectually disabled and therefore ineligible for the death penalty. Braziel was also exposed to drugs and alcohol in utero, experienced abuse and homelessness as a child, and has a family history of mental illness. None of that evidence was offered to his jury, which, the defense argued, might have been persuaded to impose a lesser sentence.
Braziel would be the 13th person executed in Texas this year and the 24th in the U.S. The pharmacy that has provided lethal drugs to Texas has a record of safety violations, and five of the prisoners executed in the state this year have reported pain or burning as the execution drug was injected, which doctors have indicated may be a sign that the drugs are out of date or impure.
On December 10, 2018, the United Nations and other international organizations celebrated Human Rights Day, marking the 70th anniversary of the adoption of the Universal Declaration of Human Rights. The Declaration, which has served as a foundation for the UN’s efforts to abolish the death penalty, contains 30 articles stating universally applicable rights based on the “inherent dignity” and “equal and inalienable rights of all members of the human family.” Article 3 declares, “Everyone has the right to life, liberty and security of person,” and has provided the basis of UN treaties and resolutions against capital punishment, including the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, which, as of 2017, had been signed by 85 nations.
When the Universal Declaration of Human Rights was adopted in 1948, only 16 countries had abolished the death penalty. Today, 142 countries are abolitionist in law or practice. The Declaration was written in the wake of World War II and the Holocaust, and called for an end to torture, cruel punishments, and discrimination. It affirmed the rights to fair trials, asylum from persecution, and presumption of innocence. The Universal Declaration, along with the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights, comprise what has come to be known as the International Bill of Rights. Articles 6 and 7 of the ICCPR provide human rights safeguards against the improper use of capital punishment. Article 6 limits the circumstances in which the death penalty can be applied and provides: “Every human being has the inherent right to life. … No one shall be arbitrarily deprived of his life.” Article 7 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”
On the 70th anniversary of the Universal Declaration, a UN statement said, “Thanks to the Declaration, and States' commitments to its principles, the dignity of millions has been uplifted and the foundation for a more just world has been laid. While its promise is yet to be fully realized, the very fact that it has stood the test of time is testament to the enduring universality of its perennial values of equality, justice and human dignity.”
Tennessee executed David Earl Miller (pictured at age 24) in the state’s electric chair on December 6, 2018, after Governor Bill Haslam denied his application for clemency and the U.S. Supreme Court refused to address the denials of his challenges to the constitutionality of Tennessee’s execution methods. Miller, a 61-year-old man with a significant history of mental illness who experienced extensive sexual and physical abuse as a child, opted to be executed by electric chair after the Tennessee Supreme Court denied other prisoners’ challenges to a three-drug lethal-injection process that Miller and his lawyers believed would result in an extended torturous death.
The Tennessee prisoners challenged the state’s three-drug lethal-injection process, seeking to replace it with execution with a single barbiturate, pentobarbital. Miller presented evidence that the three-drug protocol would result in approximately 18 minutes of unnecessary pain and suffering. He submitted an affidavit from one of the nation’s leading anesthesiologists that Billy Ray Irick “was aware and sensate” during his lethal-injection execution on October 11, 2018 “and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” The prisoners’ challenge was rejected because Miller—prevented from obtaining critical information by Tennessee’s execution secrecy law—was unable to show that pentobarbital was readily available to the state. Miller elected to be executed in the electric chair, but argued that his choice of electrocution instead of lethal injection was coerced and that both methods were unconstitutionally cruel and unusual. The lower courts ruled that Miller had waived his challenge to constitutionality of the electric chair by choosing it over lethal injection, and the U.S. Supreme Court refused to intervene. In dissent, Justice Sonia Sotomayor wrote that “electrocution can be a dreadful way to die,” but there was “credible scientific evidence that lethal injection as currently practiced in Tennessee may well be even worse.” It was “perverse,” she said, to require prisoners to prove that an alternative method was available to kill them. “Such madness should not continue.”
Miller was charged with murdering his intellectually-disabled girlfriend, Lee Standifer, in May 1981. He was 24 years old at the time. Miller’s attorneys submitted an 89-page clemency petition to Tennessee Governor Bill Haslam detailing Miller’s upbringing and childhood abuse, including an instance in which Miller’s stepfather “knocked [Miller] out of a chair, hit him with a board, threw him into a refrigerator with such force it dented the refrigerator and bloodied [Miller’s] head, dragged him through the house by his hair, and twice ran [Miller’s] head through the wall.” Miller’s mother, who drank heavily while he was in utero, sexually abused Miller and forced him to have sex with her on at least three occasions. The document also noted that Miller attempted suicide two times before age ten. Governor Haslam denied the petition with a one-sentence statement: “After careful consideration of David Earl Miller’s clemency request, I am declining to intervene in this case.”
Following the execution, Miller’s lawyer Steve Kissinger said: “If any of you have been reading what we've been submitting to the governor, what we have been sending to the courts for the last 20 years you'll know that he cared deeply for Lee Standifer and she would be alive today if it weren't for a sadistic stepfather and a mother who violated every trust that a son should have. I came up here promising to tell you what we did here today, but I think maybe what I should be doing is ask you all that question. What is it that we did here today?”
Miller is the second death-row prisoner to be executed by electrocution in Tennessee this year. Edmund Zagorski, executed by electrocution on November 1, 2018, was the first. Miller’s last words were “beats being on death row.”
The execution process in Indiana and Missouri may become more transparent as a result of public-access lawsuits filed in the two states. In Indiana, a Marion County trial judge ruled on November 30, 2018 that the state must release pre-2017 records concerning the drugs obtained by the state for executions and the companies that produced them. Three days earlier, the ACLU of Missouri announced the settlement of a lawsuit filed on behalf of investigative journalist Chris McDaniel that ensured that the Missouri Department of Corrections could no longer retaliate against reporters or news outlets by excluding them from witnessing executions.
The Indiana ruling came in a public records suit brought by a lawyer, A. Katherine Toomey, in which Circuit Court Judge Sheryl Lynch had previously ordered the state to disclose documents on the details of Indiana’s execution protocol. To evade compliance with the court’s 2016 order, at 2 a.m. on the final day of the 2017 legislative session, the legislature inserted a two-page secrecy provision into the state 175-page budget bill. That provision exempted the records Toomey had sought from public disclosure. David Dickmeyer, arguing on behalf of the state, told Judge Lynch that the new law constituted a “special circumstance” requiring the court to change her prior ruling. The secrecy provision was necessary, he asserted, because releasing the records would subject the state’s drug supplier to “public shaming, public protests, hate mail and lawsuits.” Judge Lynch disagreed, writing, "The General Assembly may not change the result of [the public records] litigation. While other requests may be precluded by the Statute, blocking Toomey’s request after this Court had already ordered the Department to produce the documents violates ... Indiana’s Constitution.”
The Missouri litigation challenged the state’s procedure for designating execution witnesses, which granted the director of the Department of Corrections sole discretion to select media witnesses. McDaniel—who as a reporter for St. Louis Public Radio and then BuzzFeed News had exposed questionable conduct by the Missouri Department of Corrections and reported that the state’s previously secret drug supplier had committed more than 1,800 health and safety violations—had applied to be a media witness for 17 executions. The corrections department ignored the applications and provided no reason for refusing to select McDaniel as a witness. In announcing the settlement, the ACLU of Missouri, which represented McDaniel, said: “The government cannot give or deny access to a reporter based on government officials’ feelings about an individual’s reporting.” Under the settlement, media witnesses will now include reporters designated by the Associated Press, the Missouri Broadcaster’s Association, and the Missouri Press Association, along with a fourth reporter from a local agency. “Executing inmates is the most serious power state governments have,” said McDaniel. “And the public has a right to know the details of how the government is using that power.”
An op-ed by Los Angeles Times opinion writer Scott Martelle took issue with the secrecy surrounding recent U.S. executions. “Secrecy advocates argue that the drugmakers must remain in the shadows to keep opponents of the death penalty from protesting them,” wrote Martelle. “In other words, if the states can’t conduct the people’s business in secret, the people might rise in opposition to the business the state is conducting. So much for open governments and public accountability.” The op-ed cited McDaniel’s investigation of the safety violations committed by the compounding pharmacy that produces Texas’s lethal-injection drugs and DPIC’s report on secrecy, Behind the Curtain: Secrecy and the Death Penalty in the United States. “Remember, executions are conducted in the name of the people, who have a right to know how the state performs the abominable act. This retreat into secrecy is an act of shame, not openness,” Martelle wrote.
In August 2018, Pope Francis promulgated a new Catholic Catechism that deemed the death penalty “inadmissible” in all cases and committed the Church to working to abolish capital punishment worldwide. Cardinal Blase Cupich, the ninth Bishop of the Archdiocese of Chicago, joined DPIC Executive Director Robert Dunham on the latest episode of the podcast Discussions with DPIC, to explore the implications of the new teachings and how they fit into the Church’s broader message on social justice and the sanctity of life. Saying “human dignity is at center of all we say and do,” Cardinal Cupich stressed that church leaders working to end capital punishment “have to make the case for human dignity just as forcefully as we do in other areas,” for the poor, for refugees, for the marginalized, and for the unborn. “All of the advocacy that we do for all of these people has to have a social or civic or political dimension to it,” the Cardinal explained. The continued use of the death penalty is “a stain on our country,” he said. “Let’s be honest. No life that was taken away can ever be replaced by taking away another life. We cannot teach that killing is wrong by killing.”
Texas plans to execute Joseph Garcia on December 4, 2018, for the murder of a police officer during a robbery in which Garcia neither killed anyone nor intended or expected that a killing would take place. His case renews questions about a Texas law called the “law of parties” that allows defendants to be sentenced to death based upon the actions and intent of others, if the defendant played even a small role in a crime that resulted in someone’s death.
Garcia was one of the “Texas 7,” a group of men who escaped from a maximum-security Texas prison on December 13, 2000. After escaping, the men robbed a sporting goods store, where some of the men were confronted by police officer Aubrey Hawkins. Garcia graphically described the robbery in a radio interview with David Martin Davies for the Texas Public Radio program, Texas Matters. Garcia admitted to participating in the escape and the robbery but insisted he never fired his gun and was still inside the store when he heard gunfire break out. He tried to stop the shooting, and during the confusion in which Officer Hawkins was killed, Garcia himself came under fire by others in the group. “I don't know what caused them to start firing at the officer. By the time I got out there on the back dock, it was over,” he said.
Under Texas’s law of parties, accomplices who participated in one felony can be held responsible for other felonies committed by other participants. Since Garcia participated in robbing the store, he was eligible to be charged with the capital murder of Officer Hawkins, whether or not he fired a gun. In the Texas Matters interview from death row, Garcia questioned the reasoning behind his death sentence. “Why am I here? Why am I on death row? You know, I don't get it,” Garcia said. “Why are you trying to kill me for the actions of somebody else?”
Texas Rep. Harold Dutton (D – Houston) has filed legislation to end the law of parties. “We shouldn’t use the law of parties to convict anybody of capital murder,” he said. “I think we ought to reserve that for the person who actually did the murder.” Garcia’s lawyers have challenged the constitutionality of executing a person who neither killed nor intended that a killing take place. Texas prosecutors have argued that the Supreme Court should not hear the issue because Garcia’s prior lawyers should have raised the issue years ago. Three of the Texas 7 have already been executed, and a fourth killed himself to avoid capture.
A three-judge panel of the United States Court of Appeals for the Fourth Circuit has unanimously overturned the death sentence imposed on Virginia death-row prisoner Mark E. Lawlor in 2011, ruling that the trial court had unconstitutionally prevented Lawlor from presenting expert mental health testimony that he posed a low risk of violence in prison if the jury spared his life. On November 27, 2018, the court reversed a decision of a Virginia federal district court that had upheld Lawlor’s conviction and sentence, ordering that he be granted a new sentencing hearing.
At trial, the judge prevented Lawlor’s defense team from calling a clinical psychologist—an expert in prison risk assessment and adaptation—who would have testified that Lawlor posed a very low risk of committing future acts of violence in prison. The testimony was offered both as mitigating evidence to support a sentence of life without parole and to rebut the prosecution’s aggravating circumstance that Lawlor “would constitute a continuing serious threat to society.” Writing for the unanimous court, Judge Stephanie D. Thacker said the state courts had disregarded clearly established U.S. Supreme Court law requiring that a capital defendant must be permitted to present and the sentencer must be permitted to consider “any admissible mitigating information in determining whether to assign the defendant a sentence less than death.” The court referenced the 1986 U.S. Supreme Court decision in Skipper v. South Carolina which specifically applied that constitutional requirement to evidence of post-arrest good conduct in prison.
In the mid-1990s, Virginia was one of only three states that offered juries a choice of sentencing a capital defendant to life without parole or death, but refused to inform the jury that a life sentence meant no possibility of parole. Death sentences dropped dramatically in Virginia after juries were truthfully instructed on their sentencing options. David Bruck, Clinical Professor of Law and Director of Virginia Capital Case Clearinghouse at Washington & Lee—who argued several of the U.S. Supreme Court cases requiring that juries be told about the life-without-parole option—said, “Virginia excludes evidence that every other death penalty state allows juries to have, so it’s not surprising that sooner or later the Virginia rule was going to be struck down by the federal courts. It’s always been illogical that the Virginia courts have restricted the evidence that juries can consider about whether an inmate would be nonviolent and well-behaved if sentenced to life without parole.”
Edward Ungvarsky, one of the lawyers who represented Lawlor, said Lawlor and his defense team were “grateful for the ruling. We thought there was nothing more important for jurors in making the decision about life in prison than to hear [whether] the person would be violent in prison. This court’s ruling brings Virginia into agreement with the entire rest of the country.” Lawlor was one of three men on Virginia’s death row, and his 2011 death sentence was the last one imposed in the state.
Twenty months after the Unites States Supreme Court unanimously struck down Texas’s non-scientific standard for evaluating intellectual disability in death penalty cases, the landmark case in which it made that decision is back before the Court. On December 7, 2018, the Court will conference Moore v. Texas, to decide if it will review whether the Texas Court of Criminal Appeals (CCA) once again unconstitutionally relied on lay stereotypes and non-clinical criteria in rejecting Bobby James Moore’s claim that he is not subject to the death penalty because he is intellectually disabled. A diverse group of prominent voices, including the district attorney’s office that originally prosecuted Moore, argue that Moore clearly satisfies the clinical definitions of intellectual disability and may not be executed.
Sentenced to death more than 38 years ago, Moore has a long history of intellectual and adaptive impairments that have been documented since his childhood, including IQ scores ranging from the low 50s to the low 70s. The American Psychological Association and American Bar Association filed briefs on November 7 supporting Moore’s claim and the urging the Supreme Court to again reverse the Texas court. They were joined by a group of prominent conservatives—including former Solicitor General Kenneth Starr, Congressman Bob Barr, conservative strategist Richard Viguerie, and David A. Keene, the longtime chair of the National Conservative Union, among others—whose brief, also filed November 7, described the Texas court’s decision as a threat to the integrity of the judicial process. They wrote: “Quoting a Supreme Court decision highlighting the errors made by the CCA in its previous review of this case, but proceeding to make those same errors on remand, is inimical to the rule of law.”
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, Texas trial court. Following contemporary medical diagnostic criteria, the court agreed that Moore was intellectual disabled and ruled that his death sentence should be vacated. However, the Texas Court of Criminal Appeals reversed, applying an idiosyncratic standard based on unscientific stereotypes, including the behavior of a fictional character from the novel Of Mice and Men. After the U.S. Supreme Court reversed and remanded for a new decision “informed by the medical community’s diagnostic framework,” the Harris County District Attorney’s office conceded that Moore qualified as intellectually disabled. Nonetheless, in a ruling three dissenters criticized as an “outlier,” a sharply divided (5-3) Texas Court of Criminal Appeals in June 2018 again upheld Moore’s death sentence.
In a November 28 op-ed in The Washington Post, Starr, who served as United States Solicitor General under President George H.W. Bush from 1989-1993, urged the Supreme Court to “save Bobby Moore from execution … again.” Starr wrote, “The job of a judge is to follow the law … [and] carefully apply the precedent of the Supreme Court. … If the system were working as it should, Moore’s case would have been a routine matter of the Texas court applying the Supreme Court’s decision and current medical standards as directed and prohibiting Moore’s execution.” Quoting then-U.S. appeals court Judge Brett M. Kavanaugh, Starr said: “As a lower court in a system of absolute vertical stare decisis headed by one Supreme Court, it is essential that we follow both the words and the music of Supreme Court decisions.”
Special Olympics Chairman Timothy Shriver also asked the Supreme Court to block Moore’s execution. In a November 19 op-ed in the Los Angeles Times, Shriver criticized the Texas court’s reasoning as “absurd, wrong and harmful.” “But most important,” Shriver wrote, the standard the court applied was “not how the medical community diagnoses intellectual disability…. Pervasive stereotypes about intellectual disability are inaccurate and harmful. In this Texas court case, they are a matter of life or death. Let’s finally recognize the complexity of people with intellectual disability,” Shriver said. “The world will be much richer for it.”
Investigation Reveals Texas Obtained Possibly Tainted Execution Drugs from Pharmacy With Tainted Safety RecordPosted: November 29, 2018
For the past three-and-a-half years, Texas has purchased execution drugs from a Houston-based compounding pharmacy that, BuzzFeed News reports, “has been cited for scores of safety violations” and whose license to operate is currently on probation. In an exclusive story by investigative reporter Chris McDaniel, BuzzFeed discovered that Texas secretly obtained execution drugs from the Greenpark Compounding Pharmacy, a pharmacy that the Texas State Board of Pharmacy has cited for 48 violations in the past eight years, including “keeping out-of-date drugs in stock, using improper procedures to prepare IV solutions, and inadequate cleaning of hands and gloves.” Greenpark’s license was put on probation in November 2016 after it botched a prescription for three children, sending one of them to the hospital for emergency care. Instead of providing the children lansoprazole, a drug to treat high levels of stomach acid, the pharmacy gave them lorazepam, an anti-anxiety drug similar to Xanax. A pharmacy technician was found to have forged quality-control documents relating to the incident. Two hundred compounding pharmacies are currently licensed in Texas, and Greenpark is one of only eight whose license is on probation or revoked.
The discovery of Greenpark’s tainted safety history comes in the wake of suggestions by medical experts that the drugs used in recent Texas executions may have been outdated or impure. The last words of five of the eleven prisoners executed in Texas so far in 2018 indicated that they experienced burning after the execution drug, pentobarbital, was injected. Pentobarbital, an anesthetic, is intended to produce a painless execution. In January, as the state executed Anthony Shore, he called out, “I can feel that it does burn. Burning!” Juan Castillo, Troy Clark, Christopher Young, and Danny Bible all said the drug burned or hurt during their executions. A sixth prisoner, William Rayford, was observed writhing and shaking on the gurney after the drug injection. Dr. David Waisel, an anesthesiologist and Harvard Medical School professor, wrote in a 2016 affidavit, “Improper compounding and testing procedures may leave fine particles undetectable by the naked eye in the solution, or larger particles that would not be detected by an untrained eye. These particles can cause great irritation to the vein, resulting in extraordinary pain.”
Both Texas and Greenpark sought to keep the pharmacy’s identity secret, but BuzzFeed obtained documents showing that Texas sent the compounding pharmacy the raw ingredients for pentobarbital in April 2015 and February 2016. In June 2018, Greenpark submitted a declaration in a lethal-injection suit, using the pseudonym “Pharmacy X,” stating that its “decision to supply the Texas Department of Criminal Justice with lethal injection chemicals was and is contingent on Pharmacy X’s identity remaining secret.” The declaration asserted that “Pharmacy X will no longer conduct business with the Texas Department of Criminal Justice” if its identity is disclosed or revealed.
As federal prosecutors dropped the death penalty against a Navajo man accused of killing a police officer on Navajo land, the U.S. Supreme Court heard argument in a separate case on the status of a treaty establishing the borders of the Creek Nation reservation that could determine whether Oklahoma has jurisdiction to carry out the death penalty against a citizen of the Muscogee (Creek) tribe. The two cases highlight issues of Native American tribal sovereignty with potentially profound implications for the administration of capital punishment under state and federal death penalty laws.
On November 27, 2018, the U.S. Supreme Court heard oral argument in Carpenter v. Murphy, Oklahoma’s appeal of a lower federal court decision that overturned the conviction and death sentence of Patrick Murphy, a citizen of the Creek Nation, for a murder the federal court ruled was committed in Indian Country, on lands within the boundaries of the Creek Nation reservation established by treaty in 1866. The U.S. Court of Appeals for the Tenth Circuit ruled in August 2017 that because the homicide with which Murphy was charged “was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” Under the federal Major Crimes Act, the court said, Murphy could be prosecuted by federal authorities, but not by the state. Because of tribal opposition to the death penalty, Murphy would not face capital prosecution under the act. Muscogee (Creek) Nation Principal Chief James Floyd hailed the Circuit court’s decision as “affirm[ing] the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.”
In 1984, the U.S. Supreme Court ruled that only Congress had authority to disestablish or diminish an Indian reservation. Congress has never explicitly disestablished the Creek reservation. However, Oklahoma appealed the court’s ruling, arguing that the admission of Oklahoma into the Union in 1907 superseded the treaty and disestablished the reservation. Arguing for Murphy, Ian Gershengorn told the Court that the tribe has never ceded authority over the lands and “for the last 40 years, … when the Creek Nation adopted a constitution in 1979, they asserted political jurisdiction to the extent of their 1900 boundaries.” The Court’s decision in the case could affect criminal prosecutions in an 11-county region of eastern Oklahoma.
In New Mexico, federal prosecutors on November 19 withdrew their notice of intent to seek the death penalty against Kirby Cleveland in the killing of a tribal police officer. In January 2018, U.S. attorneys announced they would capitally prosecute Cleveland, prompting opposition from the Navajo Nation, which holds the official position that “capital punishment is not an acceptable form of punishment.” Navajo Nation Attorney General Ethel Branch stated in a letter, “The death penalty is counter to the cultural beliefs and traditions of the Navajo People who value life and place a great emphasis on the restoration of harmony through restoration and individual attention.” The U.S. Attorney’s Office had argued that because the murder involved the death of a police officer, the tribe’s position was not binding on the federal government. The case was further complicated by the fact that the state of New Mexico abolished the death penalty in 2009, so a death-penalty prosecution was counter to the policy of the state in which the crime took place.