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Two Foreign Nationals Receive New Trials as U.S. Supreme Court Declines to Hear State Death-Penalty Appeals

Posted: May 22, 2019

Two foreign nationals who were sentenced to death in unrelated cases will receive new trials after the U.S. Supreme Court declined to hear appeals of lower court rulings overturning their convictions. Jose Echavarria (pictured, left), a Nevada prisoner originally from Cuba, and Ahmad Issa (pictured, right), an Ohio prisoner originally from Jordan, each were awarded new trials by federal appellate court decisions in 2018. The states petitioned the Supreme Court seeking review of the cases, but on May 20, 2019, the Court denied the petitions, allowing the lower court rulings to stand. Echavarria and Issa were among 130 foreign nationals from 35 countries under sentence of death across the United States.

Echavarria was granted a new trial on his claim that his trial was tainted by judicial bias. Echavarria had been sentenced to death in Clark County, Nevada for the 1990 killing of FBI agent John Bailey during an attempted bank robbery. Echavarria fled to Mexico after the crime, and later alleged that he had been tortured and beaten by Mexican police until he confessed. denied Echavarria moved to suppress the confession, but the trial judge, Jack Lehman, denied the motion. Unknown to the defense, Lehman had been the subject of an FBI investigation into issues of possible corruption, fraud, and perjury and that investigation had been conducted by Agent Bailey. The FBI ultimately referred the case to state authorities in 1988, who brought no charges against the judge. Lehman met with the prosecutor and the lawyer representing Echavarria’s co-defendant prior to trial, asking whether they wanted him to recuse himself. According to the U.S. Court of Appeals for the Ninth Circuit, “Judge Lehman did not fully explain … the nature and extent of the FBI’s investigation,” and neither party requested recusal. Echavarria’s counsel did not learn about the FBI investigation until well after trial and sentencing.

The Ninth Circuit ruled that Judge Lehman’s participation in the trial created “a constitutionally intolerable risk of bias” that violated Echavarria’s right to due process. It wrote that “[a]n average judge in [Lehman’s] position would have feared that rulings favoring Echavarria, tipping the outcome towards acquittal or a sentence less than death, could cost him his reputation, his judgeship, and possibly his liberty.” The court found that “the risk of bias was extraordinary in both its nature and severity … [and] was obvious to all who had complete information about Agent Bailey’s investigation.” It upheld a federal district court ruling that vacated Echavarria’s conviction and death sentence and required the state to retry or release Echavarria. It was the second case in two years in which the Court was asked to intervene in a Clark County case alleging judicial bias. In 2017, the Court reversed a Nevada court ruling that had upheld the capital conviction of Michael Rippo after a judge who was the subject of a federal bribery investigation in which Clark County prosecutors were playing a role refused to recuse himself from the trial.

Issa had been granted a new trial based on Hamilton County prosecutors’ improper use of hearsay evidence he had no opportunity to confront in court. Issa was convicted of capital murder for allegedly hiring Andre Miles to kill Maher Khriss, Issa’s boss, at the behest of Khriss’ wife, Linda Khriss. Miles also killed Zaid Khriss, Maher’s brother, when he shot Maher. Miles, Issa, and Linda Khriss were all charged with aggravated murder. Khriss was acquitted in a trial in which Miles—who had received a life sentence in his trial—testified against her. Miles subsequently refused to testify at Issa’s trial and the trial court allowed Cincinnati prosecutors to instead present testimony from two friends of Miles, who said Miles had told them that Issa had hired him to kill someone. The U.S. Court of Appeals for the Sixth Circuit found that this testimony violated the Confrontation Clause of the Sixth Amendment, which states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

 

Supreme Court Denies Review in Death-Penalty Case Where Texas Judge Rubberstamped Prosecution’s Findings

Posted: May 21, 2019

The U.S. Supreme Court has declined to review a case in which the Texas courts decided a death-row prisoner’s appeal by adopting the prosecution’s fact findings and legal arguments word-for-word without providing the defendant’s lawyer any opportunity to respond. In a May 20, 2019 ruling, the Court without comment denied the petition for writ of certiorari filed by Ray Freeney (pictured), thereby permitting the Harris County prisoner’s conviction and death sentence to stand. The decision was the latest in a series of cases in which the Court has refused to take up the issue of state-court rulings that are verbatim copies of proposed orders written entirely by the prosecution. In June 2018, researchers at the University of Texas School of Law Capital Punishment Center exposed the systemic rubberstamping of prosecutors’ pleadings in Harris County capital cases. The researchers found that county judges had adopted prosecutors’ proposed findings of fact verbatim in 96% of 191 capital cases in which factual issues had been contested. Harris County has executed 129 men and women, more than double the number executed in any other county in the United States and more than have been executed in any state in the country other than Texas.

In a Washington Post op-ed, columnist Radley Balko said Freeney’s case not only raises questions about the practice of judges rubberstamping prosecutorial findings, but also “test[s] the absurd, outer limits of AEDPA’s deference to state courts.” AEDPA is the Anti-Terrorism and Effective Death Penalty Act, the habeas corpus amendments passed by Congress in 1996. Those amendments have significantly reduced federal courts’ ability to review and redress violations of a state defendant’s right to a fair trial and sentencing by requiring federal judges to give a high level of deference to state court findings. Balko explains, “to get a federal court to review a state court’s ruling, a defendant must show not only that the state court (and the state courts that upheld the ruling) were wrong, but that the prevailing ruling was either ‘contrary to, or involved an unreasonable application of, clearly established Federal law,’ or an ‘unreasonable determination of the facts in light of the evidence presented.’ Put plainly, you must convince the federal courts not only that the state courts were wrong, but also that they were unreasonably wrong.”

When Ray Freeney’s case came before Texas District Court Judge Renee Magee, his appeal lawyers sought a new sentencing hearing because his trial lawyers had failed to investigate and present to the jury evidence that Freeney suffered from mental illness and had been the victim of chronic child abuse. Judge Magee, who had spent 19 years as a prosecutor in the Harris County District Attorney’s Office, asked for briefs, and received 204 proposed findings of fact from the prosecution, based on over 800 pages of testimony. The next day, she adopted the factfinding verbatim. Freeney’s defense attorneys were never given an opportunity to respond, or to submit their own brief containing new evidence to support their claim that his trial attorneys had provided inadequate counsel. The University of Texas study has demonstrated that “rubberstamping” of prosecutors’ proposed orders is common in Harris County, particularly in cases in which the judge was a former county prosecutor. But Feeney’s case stood out even more in that Judge Magee provided his lawyers no opportunity to respond to the prosecution’s proposed disposition of the case. “When you have such egregious inattention to facts and lack of stewardship of constitutional rights as we’ve seen in Harris County,” Balko said, “the entire system begins to look like a farce.”

Under AEDPA, rubberstamped findings are routinely treated with the same level of deference as findings that judges wrote themselves. Balko explains that, “under the controlling case law for the [Texas federal courts], ‘a full and fair hearing is not a precondition to presumption of correctness to state habeas court findings of fact.’” “The message sent to state judges by the Fifth Circuit in Mr. Freeney’s case was clear,” says Richard Bourke, one of Freeney’s attorneys. “You don’t need to consider the defense’s legal arguments. You don’t need to consider the defense’s evidence. You don’t even need to wait until the defense has presented either. You can just rubber stamp the state’s brief. And you needn’t worry about the Fifth Circuit overruling you.” 

 

Alabama Governor Calls Life “Precious” and “Sacred,” Then Denies Clemency to Michael Samra

Posted: May 20, 2019

Alabama Governor Kay Ivey has drawn criticism for denying clemency and presiding over the execution of Michael Samra (pictured) on May 16, 2019, one day after issuing a statement calling Alabama a pro-life state and declaring life “precious” and “sacred.” On May 15, Ivey signed into law a bill that criminalizes abortion, saying that the new law “stands as a powerful testament to Alabamians’ deeply held belief that every life is precious and that every life is a sacred gift from God.” After Samra’s execution the following evening, her office issued a statement that “Alabama will not stand for the loss of life in our state, and with this heinous crime, we must respond with punishment. ... This evening justice has been delivered to the loved ones of these victims, and it signals that Alabama does not tolerate murderous acts of any nature.”

Ivey’s actions prompted rebukes from liberal and conservative quarters and renewed the question of whether one who supports capital punishment can be considered “pro-life.” “It’s a contradiction that I always observed,” said Hannah Cox, the national manager of Conservatives Concerned About the Death Penalty. Supporting the death penalty, Ms. Cox told The New York Times, is “a stance that cheapens the pro-life argument.” Krisanne Vaillancourt Murphy, executive director of the Catholic Mobilizing Network, an anti-death penalty advocacy group, said “[p]ro-life values are meaningless when they are inconsistent.” She said that “[t]he sanctity of human life applies to each and every person, innocent and guilty,” and that a person’s dignity “is not lost even after the commission of very serious crimes.”

Ivey’s actions also were criticized in articles in The Los Angeles Times and CNN. Los Angeles Times opinion writer Scott Martelle highlighted some of the seven executions Ivey has overseen, including Walter Moody, the oldest person executed in the U.S., and Domineque Ray, a Muslim prisoner who was denied the presence of his imam during his execution. “Apparently, Ivey’s not averse to returning some of God’s sacred gifts,” Martelle wrote. “If Ivey had the courage of her convictions, she would use her authority as governor to grant clemency to [the] 181 people facing execution in Alabama. That act would … remove the cloud of hypocrisy hovering over Montgomery.” In a CNN commentary, Jay Parisi wrote: “The anti-abortion movement raises a question about capital punishment that must be answered. If the 25 white men who voted in the Alabama senate for a near-total ban on abortion were really serious about the ‘right to life,’ would they not have simultaneously banned capital punishment? The death penalty is a clear violation of this right ….” Parisi called it “deeply ironic that the seven states that have passed tighter abortion laws are also actively open to killing live human beings by lethal injection or electrocution.”

The week before Samra’s execution, Cox authored a commentary for Newsmax in which she critiqued the “inconsistency” and “hypocrisy” of arguments by people who identify themselves as pro-life, yet support capital punishment. “[A]s a Christian,” she wrote, “I believe that all life has inherent value that cannot be won or lost by anything we do, but rather that is based on all being created in the image of God.” She addressed the oft-repeated reasoning that only innocent life deserves to be protected, explaining, “there are countless innocent people caught up in the criminal justice system, and certainly on death rows. To date, one person has been exonerated from death row for every ten executions. You cannot buttress your belief in capital punishment with the reasoning that you only think innocent life should be protected." Cox said, “The vast majority of people who commit harm were first victimized numerous times — often as children — before they became violent. ... You cannot say you care about the lives of young children and want to protect them from harm, and then believe they should be executed when they are harmed and end up perpetuating the cycle of violence.”

Cox told The New York Times that the pro-life dialogue about the death penalty continues to shift, notwithstanding the events in Alabama. Growing conservative opposition to capital punishment, she said, is evidenced by the introduction of Republican-sponsored bills to repeal the death penalty in 11 state legislatures in 2019.

 

New Podcast: Emmy- and Oscar-Award Winning Director Edward Zwick on His New Film, Trial By Fire

Posted: May 17, 2019

In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his new movie, Trial By Fire. The film, which Zwick co-produced and directed, tells the story of Cameron Todd Willingham, who was convicted and sentenced to death in 1992 for the deaths of his three children in a house fire that prosecutors wrongly claimed had been intentionally set. As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods. The trial prosecutor also withheld evidence that a jailhouse informant who claimed that Willingham had confessed to him had been provided favorable treatment in exchange for implicating Willingham.

Willingham’s case featured what Zwick called a “catalog” of problems: “it had the withholding of exculpatory evidence, it had junk science, it had jailhouse snitches who would testify in exchange for reduced sentences, [and] it had a piss-poor public defender.” In an interview with DPIC’s Managing Director, Anne Holsinger, Zwick describes why he decided to tell Willingham’s story, what he learned from the experience, and how he hopes the film will affect audiences. Trial By Fire opens on May 17, 2019.

Trial By Fire is largely based on an investigative article of the same name written by David Grann and published in The New Yorker in 2009. Zwick called Grann’s account of the case a “categorical denunciation of everything that was wrong with the prosecutions in death-penalty cases.” The movie focuses on the relationship between Willingham (Jack O’Connell) and his penpal, Elizabeth Gilbert (Laura Dern). Gilbert worked with the filmmakers and offered them access to her correspondence with Willingham. Zwick said he chose to portray that relationship because it was a “beautiful juxtaposition to the horrors of the case.” He expressed gratitude to Gilbert for sharing the letters, which he said showed the “internal workings and the value of a man’s life, so he was more than just a statistic.” He also said that the friendship between Willingham and Gilbert humanized the story and helped the film avoid being didactic. “People go to the movies because they want to invest in the characters and in the relationships. They don’t go to the movies to learn about issues, but that doesn’t say that they can’t have both.”

Zwick characterized Willingham’s story as embodying the systemic problems in the way the death penalty is carried out in the United States. “In a system that cannot be guaranteed to be infallible, if a single innocent person has been put to death, that more than justifies getting rid of the death penalty,” he said. Capital punishment, he said, is emblematic of the inequities in the criminal justice system at large: “The death penalty sits on top of the pyramid of charging and sentencing and trials, and that if it is so flawed and revealed to be unjust and if its absurdities can be so accepted, how then can we reform the rest of the system, before dealing with it?” The interview concluded with a discussion of the filmmaker’s hopes for how the audience will respond to the movie. “I know that it’s a Pollyanna-ish notion that a single film can do anything that affects policy itself. What it can do is add a set of images and a warm-bloodedness and a personal understanding of something that an audience might have only understood in more philosophical or political terms.” Storytelling can be part of cultural “paradigm shifts,” he said, noting that pop culture depictions of same-sex relationships helped shape public opinion on same-sex marriage. “Change happens," Zwick said, "but how it happens and when it happens, and the rate at which it happens is unpredictable, and all that one can do in any kind of activist cause is to keep your head down and keep doing the work that you do because you are committed to that change.”

 

Department of Justice Asserts That Food and Drug Administration ‘Lacks Jurisdiction’ Over Lethal-Injection Drugs

Posted: May 16, 2019

The U.S. Department of Justice (DOJ) has issued an advisory memorandum declaring that the Food and Drug Administration (FDA) “lacks jurisdiction” to regulate execution drugs, including enforcing federal laws that prohibit the import of such drugs from abroad. The memorandum, authored by Assistant Attorney General Steven A. Engel (pictured) for the Department’s Office of Legal Counsel, places the administration squarely in conflict with a 2012 federal district court order requiring the FDA to enforce federal laws barring the importation of unapproved or misbranded drugs or drugs that come from unregistered facilities. The ruling, which came in a case brought by death-row prisoners to force the agency to comply with federal law, was upheld by a federal appeals court in 2013, and the FDA is still permanently enjoined by the ruling from allowing the illegal importation of execution drugs.

The DOJ legal opinion — which is binding on federal agencies — is apparently a response to the FDA’s seizure and impoundment of lethal-injection drugs that prison officials in Texas and Arizona had attempted to import in 2015 for use in executions. After the drug seizure, the Texas Department of Criminal Justice sued the FDA, and in April 2017, the agency issued a final order refusing to release the drugs. The FDA’s order stated: “The [2012] court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug.” Several states have attempted to illegally import sodium thiopental, an anesthetic once commonly used in executions, after its U.S. manufacturer ceased production in 2009.

Engel’s memorandum bases the DOJ’s opinion on a U.S. Supreme Court case addressing whether the FDA can regulate tobacco products. In FDA v. Brown & Williamson Tobacco Corp. (2000), the Court found that the FDA could not regulate tobacco products because “they cannot be used safely for any therapeutic purpose,” but “they cannot be banned” because Congress had clearly intended for tobacco to be available. Engel wrote that the situations were analogous: “Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the [Federal Food, Drug, and Cosmetic Act of 1938] would effectively require their prohibition because they could hardly be found ‘safe and effective’ for such an intended use.”

Fordham University Law Professor Deborah Denno said the opinion “is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so,” but, according to The Washington Post, “The Justice Department’s opinion is unlikely to have any immediate effect … because the FDA is still operating under the 2012 injunction.” The Justice Department has not taken any steps to have the injunction lifted. As long as the injunction remains in place, the opinion represents only the views of the Department of Justice, and does not have the force of law. 

 

Death-Penalty Opinions Expose Deep Divisions on U.S. Supreme Court

Posted: May 15, 2019

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

 

Alabama Prisoner Seeks Stay, Reprieve to Challenge the Death Penalty for 19-Year-Old Offenders

Posted: May 14, 2019

Facing a May 16, 2019 execution date, Alabama death-row prisoner Michael Brandon Samra (pictured) has asked the United States Supreme Court and Governor Kay Ivey to halt his execution and for the Court to consider the constitutionally of imposing the death penalty upon 19-year-old offenders. In a petition filed on April 27, Samra—a teenage offender with borderline intellectual functioning—asked the U.S. Supreme Court to reconsider the appropriate age cutoff for banning the execution of youthful offenders. He also has asked Ivey for a reprieve to permit courts to rule on the issue.

In 2005, the Supreme Court barred the execution of people for crimes committed before age 18. That decision, in Roper v. Simmons, extended the Court’s prior age prohibition on the application of the death penalty to offenders younger than age 16. Samra’s attorneys argue that new research in neuroscience shows that key areas of the adolescent brain continue to mature through a person’s early twenties. Although the question Samra’s lawyers formally presented to the Court is whether the Eighth Amendment “permit[s] the execution of youthful offenders who … were 19 years old at the time of their crime,” the petition urges the Court to forbid the execution of offenders younger than age 21. “Compared to adults, persons in their late teens and early 20’s [sic] are: (1) more likely to poorly assess risk, (2) more likely to engage in sensation-seeking, (3) less able to control their impulses and consider the consequences of their actions, (4) have underdeveloped basic cognitive abilities as compared to emotional abilities, (5) are more affected by peer pressure,” Samra’s petition explains. His attorneys wrote, “This Court’s Eighth Amendment jurisprudence should reflect the reality that a person’s neurological and psychological development does not suddenly stop on his 18th birthday.”

Samra’s petition to the high court cites a 2017 decision by a Kentucky trial court, which held that “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age.” That case is currently under appeal to the Kentucky Supreme Court and Samra’s attorneys have asked Governor Ivey to grant a reprieve until it is decided. “To prevent a miscarriage of justice and ensure that Alabama does not carry out an unconstitutional execution, Samra respectfully requests a reprieve until the Kentucky Supreme Court has ruled on the question that would determine whether Samra is categorically eligible for the death penalty,” Samra’s attorney wrote. The plea for a reprieve also notes that Samra was less involved in the planning and carrying out of the crime, compared to his co-defendant, Mark Duke. It says that Samra helped Duke kill Duke’s father, his father’s girlfriend, and her two daughters, but that Duke planned the killings and killed three of the four victims. Duke, who was 16 at the time of the crimes, was sentenced to death. However, his death sentence was overturned when the Supreme Court decided Roper in 2005.

If the Supreme Court and the governor allow Samra’s execution to proceed, it will be the sixth in the United States in 2019, and the second in Alabama. Tennessee has scheduled the execution of Donnie Edward Johnson for the same night, May 16. [UPDATE: The U.S. Supreme Court denied Samra's petition for review on May 14. Gov. Ivey denied his clemency application May 16 and he was executed that evening.]

 

Science Challenges Myth that Death Penalty Brings Victims’ Families Closure

Posted: May 13, 2019

Proponents of capital punishment have long argued for the death penalty on the grounds that it brings closure to family members of homicide victims. But science suggests that achieving closure through execution may be a myth, says family and child therapist Linda Lewis Griffith (pictured) in a May 6, 2019 column in the San Luis Obispo Tribune, and that capital punishment may actually make matters worse.

To underscore that point, Griffith cites studies in the Personality and Social Psychology Bulletin and the Journal of Personality and Social Psychology that found “subjects who were given the opportunity to vent their hostilities had higher levels of aggression and anger than those participants who did nothing at all” and “people who punish others in the hopes of making themselves feel better actually feel worse.” The death penalty, she says, “keeps victims involved in the tragedy for years, even decades, as multiple hearings, appeals and trials drag on.” As a result, family members “feel stuck in a time warp, being repeatedly re-traumatized by the legal system and accompanying media coverage.” In cases in which the death penalty is eventually carried out, “[e]xecutions do not offer emotional catharsis as many would suggest.” Instead, Griffith says, “executing perpetrators actually increased family members’ feelings of emptiness because it didn’t bring back their loved ones.”

A University of Minnesota study published in 2007 attempted to quantify the extent to which victims’ family members achieved closure as a result of capital punishment. The study found that only 2.5% of victims’ family members—roughly one in 40—reported achieving closure, while 20.1% said the execution did not help them heal. A 2012 study published in the Marquette Law Review compared the emotional well-being of survivors in Texas, a death penalty state, and Minnesota, a life without possibility of parole state. The study found that “victims in Minnesota experienced greater control over the sentencing process,” while the “drawn out, elusive, delayed, and unpredictable” capital appeals process in Texas “created ‘layers of injustice, powerlessness, and in some instances, despair’” for family members.

Given these studies, Griffin believes that life without possibility of parole offers “[a] more emotionally satisfying solution” for victims’ families than does the death penalty. “Instead of proceeding with archaic and inaccurate information, let’s consider the data and do what really works best” for victims’ families, she says.

 

Study Finds Louisiana Spends An Extra $15 Million Per Year on Death Penalty

Posted: May 10, 2019

A new study of Louisiana’s death penalty reports that the state’s capital punishment system costs taxpayers at least $15.6 million a year more than a system with life without parole as the maximum sentence. The study by retired New Orleans district Chief Judge Calvin Johnson (pictured, left) and Loyola Law Professor William Quigley (pictured, right), released on May 2, 2019, found that Louisiana has spent more than $200 million on its death-penalty system in the last 15 years, resulting in a single execution of a prisoner who gave up his appeals. The researchers projected that, for an offense committed after August 1, 2019, it would cost taxpayers more than a quarter billion dollars to keep in place its capital punishment system from the time of arrest to the time of an eventual execution.

For their study, Johnson and Quigley examined data compiled by the Louisiana Department of Corrections, the Louisiana Public Defender Board, and the Louisiana Legislative Fiscal Office to arrive at what the authors characterize as “a conservative estimate” of the system’s costs. “The actual costs may be significantly higher, as the costs do not include the prosecution or court costs spent on capital cases that ultimately did not go to trial as a capital case, or the costs of Louisiana Supreme Court review,” they said. Quigley summarized the study’s findings, saying, “Louisiana has spent over $200 million in the past 15 years, to operate a broken death penalty system in which 83% of the death sentences imposed at trial [that have completed appellate review] have been overturned. Louisiana has to decide whether it wants to spend more than $250 million dollars in the future, for a death penalty system that has resulted in more exonerations than executions over the last 15 years.”

Louisiana has executed only one person in the past 15 years, Gerald Bordelon in 2010. Bordelon dropped his appeals and “volunteered” for execution. In that same period, the state has exonerated five people: Dan L. Bright and Ryan Matthews in 2004, Damon Thibodeaux in 2012, Glenn Ford in 2014, and Rodricus Crawford in 2017. Dating back to 1976, when the U.S. Supreme Court struck down Louisiana’s then-mandatory death penalty, the state has sent 242 defendants to death row. Ten of those prisoners were subsequently exonerated — or 4.1% of every death sentence imposed. Police or prosecutorial misconduct played a major role in each of the wrongful capital convictions. The study reported that Louisiana has the nation’s highest per capita death-row exoneration rate and the highest rate of death sentences overturned on appeal.

The study’s authors estimate that Louisiana would have to spend at least $281 million to maintain the death penalty long enough to execute a person arrested this year for capital murder. They found that Louisiana death-penalty cases take approximately three years after arrest to reach trial. Once sentenced to death, prisoners spend an average of 17.6 years before being executed. “The study reveals how shockingly little Louisiana gets in return for the millions being spent on the death penalty," said Marcus Maldonado, Louisiana Conservatives Concerned about the Death Penalty Advisory Committee member. "It is a staggering sum and an indefensible government expenditure when you consider all this money results in reversals, wrongful convictions, and no public safety benefit.” Two death-penalty abolition bills were proposed in the Louisiana legislature this year, sponsored by Sen. Dan Claitor (R-Baton Rouge) and Rep. Terry Landry (D – Iberia). One of them, SB 112, a constitutional amendment abolishing capital punishment, failed in the Senate on May 6. A bill to conceal information about the state’s lethal-injection drug purchases was reported favorably from a House committee on May 7 and is scheduled for floor debate on May 20.

 

Federal Appeals Court Upholds Ban on Unconstitutional Conditions on Virginia Death Row

Posted: May 9, 2019

A federal appeals court has declared that Virginia for many years housed its death-row prisoners in unconstitutional conditions and has barred the state from reverting to its prior practices. On May 3, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that the Commonwealth’s former policy of 23- or 24-hour per day solitary confinement of death-row prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. The 2-1 decision upheld a ruling by the U.S. District Court that found Virginia’s death-row conditions “created, at the least, a significant risk of substantial psychological or emotional harm” and that the state had been “deliberately indifferent” to that risk.

At the time the Commonwealth’s three current and two since-executed death-row prisoners filed suit, Virginia limited death-row prisoners to one hour of recreation per day five days a week and a ten-minute shower three days per week. During recreation, they “were confined to individual enclosures with concrete floors and enclosed by a steel and wire mesh cage.” At all other times, they were held alone in 71-square-foot cells, about half the size of a parking space, with lights on 24 hours a day. Contact visits with immediate family members could be granted at the warden’s discretion once every six months under “extreme circumstances.” In practice, this policy meant that prisoners were only granted contact visits as their execution date approached.

The appeals court decision cited overwhelming scientific research that has found serious detrimental effects of solitary confinement. A leading survey of such research stated “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” The court also relied upon a growing body of caselaw in which courts have found solitary confinement conditions to be unconstitutional. The court found particularly relevant “the empirical evidence … that solitary confinement poses an objective risk of serious psychological and emotional harm to inmates, and therefore can violate the Eighth Amendment.” Cate Stetson, who argued on behalf of the prisoners, praised the court’s action as “a landmark decision.” In a statement released to the media, she said: “The court was right to find that the severe isolation to which our clients were subjected for years on end put them at a substantial risk of severe psychological and emotional harm and violated their right to be free from cruel and unusual punishment.”

In August 2015, about a year after the suit was originally filed, Virginia revised its death-row regulations to allow weekly contact visits with family, in-pod shared recreation seven days a week and outdoor recreation five days a week, and daily showers. However, the Commonwealth repeatedly refused to rule out the option of reverting to its prior death-row housing practices. The death-row prisoners conceded that the new conditions do not violate the constitution, but persuaded the court that the state’s lack of “repentance” left the prisoners facing a “cognizable danger of recurrent violation.” The decision prohibits the state from returning to the earlier, unconstitutional conditions. Judge Paul V. Niemeyer dissented from the majority opinion because the unconstitutional conditions are no longer in effect.

 

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