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Law Review: Article Tracks 400 Years of America's “Inglorious Experience” With the Death Penalty

Posted: September 19, 2018

A landmark article in the Northwestern Journal of Law & Social Policy provides a “compilation of milestones in the American experience with capital punishment,” tracking more than 400 years of the “inglorious experience with capital punishment” in what is now the United States. Authors Rob Warden (pictured, left), Executive Director Emeritus at Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, and Daniel Lennard (pictured, right), a lawyer at Kramer Levin Naftalis & Frankel LLP, tracked more than four centuries of capital punishment on what is now American soil. “As our milestones show,” they write, “capital punishment … has been plagued by racism, infliction of pain both intentional and unintentional, executions for crimes to which the death penalty no longer applies, for the imaginary crime of witchcraft, and, in two instances, murders that appear not to have occurred.” The authors present more than 300 chronological vignettes that depict endemic injustice in a death-penalty system they say has “claimed lives of the mentally ill, the severely intellectually handicapped or brain-damaged, juveniles, and thousands of prisoners executed in U.S. jurisdictions that have since abolished or suspended capital punishment.” Underscoring the dangers of capital punishment, the authors explain that “for every ten death row prisoners executed” under laws enacted after the U.S. Supreme Court struck down the nation’s capital punishment schemes in 1972 “more than one has been exonerated.” Moreover, death-row prisoners “in effect committ[ed] state-abetted suicide” in nearly ten percent of the executions during this period, undermining appellate safeguards by voluntarily abandoning discretionary appeals. Although three states have acknowledged having executed innocent defendants, Warden and Lennard present evidence that “untold numbers of others who likely were innocent” also have been executed. The authors ultimately conclude that maintaining capital punishment in the U.S. makes little sense “in light of its lack of a deterrent effect on crime, its racially discriminatory imposition, the risk of executing the innocent, and its obscenely high cost.” They say that while recent judicial appointments may have delayed death-penalty abolition, the trends against capital punishment “bode well” and “the outlook for abolition of the death penalty in the United States remains positive—even if it is likelier to come later than sooner.”

 

Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

Posted: September 18, 2018

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.

 

Jurors in Henry McCollum Case Reflect on How They Sentenced an Innocent Man to Death

Posted: September 17, 2018

Four years after intellectually disabled brothers Henry McCollum and Leon Brown were exonerated of the 1983 rape and murder of an 11-year-old girl in North Carolina, jurors in McCollum's case met with members of his defense team and reflected on how they sentenced an innocent man to death. In a September 6 op-ed in the Raleigh News & Observer, Kristin Collins—Associate Director of Public Information for North Carolina’s Center for Death Penalty Litigation and a former News & Observer reporter—writes that the jurors’ responses varied from relief, to shame, to fear of God’s wrath, to tears at he pain of even thinking about the case. “All [the jurors] were denied the information they needed to reach a fair verdict,” Collins observed. “I’ve been trying to figure out, where did we go wrong?,” one juror told Collins. “I feel like we got duped by the system,” he said. McCollum and Brown—age 19 and 15, respectively, at the time Sabrina Buie was raped and murdered—were convicted and condemned for her death in 1984. The main evidence against them were coerced confessions obtained during prolonged interrogations. Brown spent eight years on death row before the Supreme Court declared the death penalty unconstitutional for children under age 16, and his sentence was reduced to life imprisonment. But McCollum remained on North Carolina’s death row for more than 30 years, having lost of all his court appeals, until DNA evidence uncovered by the North Carolina Innocence Inquiry Commission disclosed that neither he nor Brown had raped and killed the young girl. At the time of his release in 2014, McCollum was North Carolina’s longest-serving death-row prisoner. The op-ed sheds light on how the gruesome facts of the case produced an unjust verdict and death sentence. Jurors recalled the graphic crime-scene photos and McCollum’s confession, which it turns out had been written by the police. “Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility,” Collins writes. One juror believed that if McCollum was on trial, he’d probably done it: “his biggest regret,” Collins wrote, “is that he trusted prosecutors to tell the truth.” And what the jury did not know was of overwhelming importance. “No one told the jury that another, almost identical crime was committed just a month after the girl’s murder — and that the culprit was not McCollum, but a man who lived by the field where her body was found,” Collins writes. “The jury didn’t know fingerprints were found at the scene, and that none of them were McCollum’s. They didn’t know the case against McCollum started with a rumor from a teenage girl, who later admitted she made it up.” Collins reports that the jurors “remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.” One seemed especially remorseful. “I should have followed my conscience,” she said. “I hope he can forgive me.”

 

Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution

Posted: September 14, 2018

Billy Ray Irick (pictured) was tortured to death during his August 9, 2018 execution in Tennessee, according to one the nation's leading anesthesiologists. In an affidavit submitted to the Tennessee Supreme Court on September 6 as part of an appeal filed by state death-row prisoners challenging Tennessee’s execution process, anesthesiologist Dr. David Lubarsky, the Vice Chancellor for Human Health Sciences at the University of California-Davis Health, said Irick was not properly anesthetized during his execution and experienced the torturous effects of the second and third lethal-injection drugs while still conscious. Lubarsky, who previously testified during a lower court hearing on the prisoners’ lethal-injection challenge, examined witness descriptions of Irick's execution and concluded “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution 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.” Witnesses reported that Irick choked, moved his head, and strained his forearms against restraints, all of which, Dr. Lubarsky said, are signs that he was able to feel the effects of the drugs. Lubarsky also noted that prison officials taped Irick's hands—a step unnecessary to the execution because Irick’s wrists were already restrained—preventing witnesses from observing movements of the fingers and hands that would have been “a clear indicator” that he was not anesthetized. The second and third drugs used in Tennessee are known to be excruciatingly painful if a prisoner is not fully unconscious. A court pleading filed by Kelley Henry, an attorney representing Tennessee’s death-row prisoners in their legal challenge to the execution protocol, graphically described the execution process. “This case is about whether it is constitutional to inject a human with a small bottle of acid—which will destroy the lining of their lungs and cause them to drown in blood—and then to inject them with a paralytic that will leave them conscious but expressionless—unable to speak or scream—feeling as if they are buried alive, and finally to stop their heart with an injection that will, in their last minute of life, cause them to chemically burn alive.” Prior to Irick’s execution, U.S. Supreme Court Justice Sonia Sotomayor dissented from a denial of a stay, writing, “In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.” Records from Irick’s execution also indicate that the state violated its own execution protocol by failing to prepare an additional dose of midazolam, the drug used to sedate him. New filings in the lethal-injection suit said that the state’s actions showed that the “protocol is meaningless” and “creates a substantial risk of severe pain and suffering.” Tennessee prosecutors filed a response on September 13 asking the court not to consider Lubarsky's declaration, saying his opinion was based on hearsay and hadn't been subject to cross-examination. The Tennessee high court has removed the case from the state’s intermediate appellate court and set an expediting briefing schedule, an unusual move that Tennessee Supreme Court Justice Sharon Lee criticized as a “rocket docket” that undermines the possibility of meaningful appellate review. On September 14, the Tennessee Supreme Court issued an order deferring a ruling until after oral argument on the appeal of the lethal injection challenge on October 3.

 

New DPIC Podcast: Researcher Discusses Implications of Link Between Economic Threats and Support for Death Penalty

Posted: September 13, 2018

In the latest episode of our Discussions with DPIC  podcast, Keelah Williams (pictured), assistant professor of psychology at Hamilton College in New York, joins DPIC executive director Robert Dunham to discuss the implications of new research on the death penalty and resource scarcity. “Resource scarcity” is a concept from evolutionary psychology that examines individual and social responses to environmental conditions in which resources are limited. “[E]cological variables can affect our behavior in really striking ways, and this often is happening at an unconscious level," Williams said. She and an interdisciplinary team of researchers from Arizona State University (where Williams earned her Ph.D. and J.D.) thought the concept provided “an exciting opportunity to see whether environmental factors might also play a role in how people think and feel about the death penalty.” Williams describes the team’s findings that countries with greater resource scarcity and income inequality are more likely to have a death penalty. The team discovered a similar phenomenon in the U.S., finding that “states with lower life expectancy and lower per capita income were more likely to have the death penalty, and ... this relationship wasn’t explained by other variables like how politically conservative the states were or state murder rates.” Williams also discusses two experimental studies the team conducted to assess the extent to which perceptions of economic scarcity or abundance affect individuals’ views of capital punishment. That research found that study participants who had been shown information and images of economic hardship tended to be more supportive of the death penalty than those of the same political ideology and socioeconomic status who had been given information and images about economic prosperity. She explains the results, saying, “If your resources are limited, then you have to be more choosy in how you invest them. So, in the context of punishment decisions, we think this means you become less willing to risk repeated offending, and more favorable towards punishments that eliminate the threat.” Although the team‘s research focused on resource scarcity, Williams says it also has relevance in explaining how race may affect views of capital punishment. “We think that people are trying to figure out what the potential future value is of the offender because that’s the information that helps them to evaluate the costs and benefits of getting rid of someone versus keeping them around.” Race, and “whether someone is in your ‘in-group’ or your ‘out-group,’” she says, “can play a role in these kinds of calculations.” This, she believes, may lead to harsher punishment of individuals perceived as belonging to the out-group and discretionary acts of leniency that favor individuals who are members of the in-group, and may cause individuals to feel more threatened when a member of their favored group is killed. Williams says that perhaps “the most interesting take-away from our study is that these features of our environment really can influence the way that we feel and the way that we behave, and can do so in ways we are not necessarily consciously aware are happening.” This raises problematic constitutional and policy questions about the arbitrariness of the death penalty’s application across the United States. “If these extraneous factors, like the state of the economy, are influencing people’s attitudes about something as important as how they feel about the death penalty and their willingness to impose death over life,” Williams says, “[t]hat’s something we, as a society, need to consider if we’re comfortable with.”

 

New UN High Commissioner for Human Rights Condemns Mass Death Sentences Imposed in Egypt

Posted: September 12, 2018

Incoming United Nations High Commissioner for Human Rights, Michelle Bachelet (pictured), has condemned the mass trial of more than 700 protesters in a Cairo, Egypt, criminal court, in which 75 defendants were sentenced to death. The court also imposed life sentences on 47 others on September 8 and sentenced another 612 defendants to prison terms of 15, 10, or 5 years. The defendants faced charges ranging from “illegal gathering” to murder and attempted murder arising from their involvement in a 2013 protest against the military overthrow of Egypt's first democratically elected president, Mohamed Morsi. Nearly 900 demonstrators, most unarmed, were killed by security forces who broke up the protest, in what Human Rights Watch has called the largest killing of demonstrators in a single day in recent history. No one has been charged in those killings, which Human Rights Watch have called “likely crimes against humanity.” In her statement opening the 39th session of the United Nations Human Rights Council in Geneva on September 10, the High Commissioner said she was “shocked” by the death sentences, describing them as the product of “another mass trial which failed to comply with international standards regarding due process guarantees.” Bachelet said the mass trial “contrasts sharply with a recent law that bestows immunity on senior members of the security forces for human rights violations which they may have committed.” On September 9, in her first public speech as Human Rights High Commissioner, Bachelet warned that the death sentences, if carried out, would amount to “a gross and irreversible miscarriage of justice.” Amnesty International also condemned the trial, calling it “a grotesque parody of justice.” Its North Africa Campaigns Director, Najia Bounaim, issued a statement denouncing the proceedings as “disgraceful. ... The fact that not a single police officer has been brought to account for the killing of at least 900 people in the Rabaa and Nahda protests shows what a mockery of justice this trial was.” Bachelet said “[t]he conduct of the trial in the Cairo Criminal Court has been widely criticised, and rightly so. The 739 people were tried en masse, and were not permitted individual legal representation before the court. In addition, the accused were not given the right to present evidence in their defence, and the prosecution did not provide sufficient evidence to prove individual guilt. The evident disregard of basic rights of the accused places the guilt of all those convicted in serious doubt.” The High Commissioner expressed “hope that the Egyptian Court of Appeal will review this verdict and ensure that international standards of justice are respected by setting it aside.”

 

Another Louisiana Capital Conviction Overturned for Lawyer Conceding Guilt Over Client’s Objection

Posted: September 11, 2018

The Louisiana Supreme Court has unanimously overturned the conviction of death-row prisoner Brian Douglas Horn (pictured), after Horn’s lawyer conceded—over Horn’s explicit objection—that his client had killed and also may have molested 12-year-old Justin Bloxom. The September 7, 2018 ruling is the latest fallout in Louisiana from the U.S. Supreme Court’s decision earlier this year in McCoy v. Louisiana, which declared that such concessions violate a defendant’s Sixth Amendment right to counsel. Prior to and during trial, Horn told his lawyer and filed motions with the court saying that he did not want to concede guilt or admit he committed the crime. Horn’s lawyer ignored his client’s objections, telling the jury during closing argument, “We know that Brian Horn killed Justin Bloxom.… I’m not asking you to let him walk the streets. I’m not asking you to find him ‘not guilty.’” Instead, counsel suggested that Horn was guilty of either second-degree murder or manslaughter, neither of which carry the death penalty as a possible punishment. Louisiana Chief Justice Bernette Johnson wrote that this concession denied Horn the assistance of counsel in his defense and was a “structural error” that required overturning the conviction. “While conceding guilt in the hope of avoiding a death sentence may be a reasonable strategic decision in some cases, the decision to do so belongs to the defendant,” she said. The ruling echoed the language of Justice Ruth Bader Ginsburg's 6-3 opinion for the Court in McCoy in which she stated, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In dissent, Justice Samuel Alito likened the issue to “a rare plant that blooms every decade or so. Having made its first appearance today, the right is unlikely to figure in another case for many years to come.” However, a friend-of-the-court brief filed by the Louisiana Association of Criminal Defense Lawyers in connection with McCoy’s case described a pattern of Louisiana state court rulings that have permitted capital defense counsel to concede guilt over their clients’ express objection or required capital defendants to represent themselves to avoid having their lawyer concede guilt. In a media statement at the time of the McCoy decision, his lawyer, Richard Bourke, said, “[w]hile rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.” On June 25, in another of those cases, the U.S. Supreme Court vacated the Louisiana Supreme Court’s decision upholding the conviction of death-row prisoner Jeffrey Clark and returned the case to the state court for reconsideration in light of McCoy. Prosecutors in Horn’s case must now decide whether to appeal the decision and whether to again seek the death penalty if they retry the case.

 

Defense Moves to Bar Death Penalty in New York Bike-Path Killings, Citing “Nakedly Political” Tweets

Posted: September 10, 2018

Defense attorneys for Sayfullo Saipov (pictured), the man accused of killing eight people by driving a truck onto a Manhattan bike path on October 31, 2017, have asked a New York federal district court to bar the U.S. government from seeking the death penalty against Saipov. Arguing that President Donald Trump has unconstitutionally injected “nakedly political considerations” into the Department of Justice's charging decision, Saipov’s lawyers on September 6, 2018, filed a motion before Judge Vincent Broderick to preclude federal prosecutors from pursuing the death penalty or, alternatively, “to appoint an independent prosecutor to decide whether the death penalty should be pursued” in the case. The defense filing cites several tweets in which the President directly called for Saipov’s execution and another in which Mr. Trump ridiculed Attorney General Jeff Sessions, who is ultimately responsible for deciding whether to seek any federal death sentence, for moving forward with two prosecutions that could cost Republicans seats in the U.S. Congress. In separate tweets shortly after the truck attack, Trump used all capital letters to demand the death penalty for Saipov, exclaiming “SHOULD GET DEATH PENALTY!” and “Should move fast. DEATH PENALTY!” In a later tweet, he referred to Saipov as a “degenerate animal.” The motion further alleges that President Trump “has recently tweeted that he expects non-case related political considerations to govern Attorney General Sessions’ charging decisions,” pointing to a tweet that “excoriated” Sessions for the indictments of “two very popular Republican Congressmen ... just ahead of the Mid-Terms.” Trump derisively tweeted: “Two easy wins now in doubt because there is not enough time. Good job, Jeff.” Saipov’s lawyers note that this tweet attack on Attorney General Sessions comes at the same time that the President’s personal attorney, Rudolph Giuliani, ‘confirmed that he and Trump have discussed Sessions’ possible removal.’” The motion argues that “[t]he pressure from Mr. Trump’s intemperate demands are simply too great for Attorney General Sessions or anyone else who works for President Trump to appropriately exercise the fact-based, independent decision-making process required” in capital cases. This, they argue, creates an unconstitutional risk that any decision to seek death will be—or appear to be—the product of “President Trump’s arbitrary, uninformed and emotional impulses ... and/or his insistence that the Justice Department’s charging decisions should be controlled by political calculations.” There is no death penalty in New York state. Federal prosecutors have not yet announced whether they intend to seek a death sentence in the case.

 

Filming Underway for Movie Adaptation of ‘Just Mercy’

Posted: September 7, 2018

Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.

 

BOOK: Slavery and the Death Penalty

Posted: September 6, 2018

"It is widely recognized that capital punishment in the United States of America continues to be imbued with the legacy of slavery" and, to end it, American death-penalty abolitionists "should draw on the radicalism of [anti-slavery] abolitionists." So argues British death-penalty scholar and abolitionist Dr. Bharat Malkani, a Senior Lecturer at the Cardiff University School of Law and Politics, in his new book, Slavery and the Death Penalty: A Study in Abolition. Malkani's book explores the historical and conceptual links between slavery and capital punishment and the efforts of abolitionist to end both practices. His book contrasts the discourse of conservative and pragmatic anti-death penalty activists, which he says accepts the legitimacy of the institutional machinery of capital punishment and the moral values of harsh retributivism, with arguments that "emphasize the inherent dignity of the person facing execution." He says the lessons of history suggest that the latter, "expressly rooting anti-death penalty efforts in the idea of dignity," is more effective. Malkani looks closely at the practical and psychological links between slavery and capital punishment, which he finds to be clear and inescapable. "The imposition of death sentences discriminates along racial lines and is disproportionately imposed on the poor, just as slavery was marked by divisions over race and class. Executions have occurred mainly, albeit not exclusively, in former slave states — the same places that witnessed the highest frequencies of lynchings. And," he writes, "capital punishment, like slavery, is predicated on the notion that some people do not belong to the political and moral human community." Malkani analogizes contemporary "conservative" and "pragmatic" anti-death penalty arguments that portray the death penalty as a failed government program or that focus on the economic costs of capital punishment to the approach of those anti-slavery advocates who argued for incremental legal restrictions on slavery or called for the gradual emancipation of only some slaves. He argues that the morality-based approach of more radical slavery abolitionists — emphasizing that the inhumanity of slavery violated the dignity of the slave, the slaveholder, and the community as a whole — has greater social impact. He believes that the arguments of many modern-day anti-death penalty activists focus too narrowly on the death penalty, giving too much credence to life in prison without parole as a viable option. These arguments, he writes, ignore the broader social injustices omnipresent within the United States' administration of the criminal laws. "[C]ontemporary anti-death penalty efforts," he writes, "must be radical in their visions, in order to inspire much-needed changes to the tendency to view some people’s lives as less valuable than others."

 

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