A Kentucky trial court has declared the death penalty unconstitutional when applied against defendants charged with offenses committed while they were younger than age 21. Fayette County Circuit Judge Ernesto Scorsone's ruling bars the Commonwealth's prosecutors from seeking the death penalty against Travis Bredhold (pictured), who was age 18 years and five months at the time of the 2013 murder and robbery of a gas station attendant. The decision extends the U.S. Supreme Court's 2005 ruling in Roper v. Simmons, which held that the Eighth Amendment proscription against cruel and unusual punishments prohibited states from using the death penalty against offenders who were younger than 18 when the crime occurred. Roper itself had extended the protections of Thompson v. Oklahoma, which had created an age 16 minimum for death eligibility. In issuing its decision, the Kentucky court credited new scientific research on brain development and behavior that, it said, shows that 18- to 21-year-olds "are categorically less culpable" for the same reasons the Roper court excluded teenagers under age 18 from the death penalty. Scarsone wrote that the new scientific evidence shows that the portions of the brains of 18- to 21-year-olds that govern impulse control and evaluation of risks and rewards are more like those of teens than adults, "making them unlikely to be deterred by knowledge of likelihood and severity of punishment." Additionally, like teens, 18- to 21-year-olds "remain susceptible to peer pressure and emotional influence, which exacerbates their existing immaturity when in groups or under stressful conditions." Scorsone also wrote that the character of 18- to 21-year-olds is not yet well formed, and that because of the flexibility of the young brain to change in response to experience, "they have a much better chance at rehabilitation than do adults.” The court evaluated changes in death-penalty practices nationwide since Roper was decided, finding what it called "a very clear national consensus trending toward restricting the death penalty" in cases involving offenders ages 18 to 20. Looking at states that have abolished the death penalty, imposed moratoria on executions, or have a "de facto prohibitions on the execution of offenders under [age] 21"—meaning they have carried no executions of such defendants in at least 15 years—the court found that there are currently 30 states that would not execute offenders aged 18 through 20. Given the new scientific evidence and the "consistent direction of change" away from the practice, Scarcone concluded that “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age." The court's decision also affects three other defendants whose death-penalty cases are pending before Scarcone. Commonwealth’s Attorney Lou Anna Red Corn has announced that she will appeal the ruling, calling it "contrary to the laws of Kentucky and the laws of the United States." There are currently 33 prisoners on Kentucky’s death row. The Commonwealth's last execution was in 2008.
A Cobb County, Georgia trial court has declared a severely mentally ill capital defendant incompetent to stand trial and committed him to a state mental hospital, effectively ending prosecutors' seven-year efforts to obtain the death penalty in his case. Jesse James Warren (pictured) was facing trial and a possible death sentence for killing four men and wounding another in 2010 at a Penske Truck Rental store where he had previously worked. The shooting spree was allegedly motivated by Warren's delusional belief that the military had paid him $500 million for inventing WiFi and that Penske had stolen some of that money from him. The ruling by Judge Mary Staley Clark followed testimony from two state psychiatrists on August 1. Both agreed that Warren suffers from a debilitating delusional disorder and refuses to take medication, making him a danger to himself and anyone who challenges his delusions outside of a hospital setting. Warren, a mechanic by training, was first diagnosed as delusional in 2009 when Penske—his former-employer—sent him to a psychiatrist. Among his other delusions, Warren reportedly claimed that he is an emperor, that he was the son of God, and that churches and religions were trying to kill him. Prosecutors sought the death penalty against Warren despite his documented history of mental illness, but lost a legal challenge in the Georgia Supreme Court in 2015 to have Warren forcibly medicated with anti-psychotic drugs to try to make him fit to stand trial. Warren's delusions render him unable to rationally understand the charges against him and assist counsel in his defense. Prosecutors now agree that he is unlikely to become competent to stand trial, even with medication. Georgia has executed fifteen prisoners in the past three years, many under controversial circumstances. A DPIC analysis of those executions showed that eight of the fifteen struggled with a combination of mental illness, intellectual disability, and/or other serious mental or emotional disturbances. In 2015, Georgia executed Andrew Brannan, a decorated Vietnam veteran with a diagnosis of Post-traumatic Stress Disorder and a 100% mental disability recognized by the Veterans Administration. In 2016, it executed Kenneth Fults, despite evidence that he was intellectually disabled and functioned at the level of the lowest 1% of the population. At the same time, Georgia juries have been moving away from the death penalty, having not imposed any new death sentences since 2014.
In a forthcoming article in the Journal of Criminal Law and Criminology, released online in July, Ben Jones argues that, despite the popular conception of death-penalty abolition as a politically progressive cause, its future success may well depend upon building support among Republicans and political conservatives. In The Republican Party, Conservatives, and the Future of Capital Punishment, Jones—the Assistant Director of Rock Ethics Institute at Pennsylvania State University—traces the ideological roots of the recent emergence of Republican lawmakers as champions of death penalty repeal to long-held conservative views. He writes, “there is a cogent and compelling conservative argument against the death penalty: it is incompatible with limited government, fiscal responsibility, and promoting a culture of life.” Jones says that for much of the 20th century, the death penalty was not a partisan issue, as Republican governors signed legislation abolishing the death penalty in Kansas in 1907 and Minnesota in 1911. Later, Republican governors commuted the sentences of all prisoners on death row in Arkansas in 1970 and in Illinois in 2003. Jones believes that Republican lawmakers’ increased interest in criminal justice reform “has created an opportunity to reframe the death penalty in a way that resonates with traditional conservative concerns.” Though Jones is uncertain whether the nascent Republican legislative opposition to capital punishment is “part of a longer-term trend,” he says, if it is, “Republican and conservative opposition will provide important opportunities—which otherwise would be absent—to advance efforts to end the death penalty in the U.S.” One opportunity may be in Utah, where conservative Republican state senator Stephen Urquhart led an effort that came close to achieving legislative repeal of the death penalty in 2016. A July 19 Salt Lake Tribune editorial argued that “[e]nding the death penalty would save money and save souls.” On the same day, Rethlyn Looker, the Utah state chair for Young Americans For Liberty, wrote in a Tribune op-ed, that "as fiscal conservatives," the cost argument to abolish capital punishment "should resonate with us" because, "in Utah, it costs at least $1.6 million more to sentence a person to death than to sentence them to life in prison without the possibility of parole." But, Looker writes, the "most compelling reason" to oppose the death penalty is still "the fact that we simply can't trust the government to get something this serious right." She says, "[f]or all of the reasons we distrust the government to do the right thing in so many other areas, we should distrust the government to end a person's life."
South Carolina prosecutors announced on July 25 that they would not appeal a trial court ruling, granting a new, non-capital trial to former death-row prisoner Kenneth Simmons (pictured). Finding that prosecutors had presented false DNA testimony that "severely deprived" Simmons of his due process rights, a Dorchester County Circuit Judge overturned Simmons's conviction. Simmons had been sentenced to death for the 1996 sexual assault and murder of an elderly woman based on false and misleading DNA testimony that purported to link him to the murder and a confession obtained under questionable circumstances. Simmons's death sentence was vacated in 2014 and replaced with a life sentence after the South Carolina Supreme Court determined that he has Intellectual Disability. In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that applying the death penalty to persons with Intellectual Disability violates the Eighth Amendment prohibition against cruel and unusual punishments. Prosecutors had initially asked Judge Doyet A. Early III to alter his 2016 decision granting Simmons a new trial. On June 23, he declined, reaffirming his finding that the prosecution's "misrepresentation of the strength of the DNA evidence to the jury" was "overwhelming," given that the confession had been extracted from "an intellectually disabled man, after multiple non-recorded interrogations, [who] had falsely confessed to other crimes before confessing to the murder." Judge Early wrote that the prosecution had presented the jury with "confusing, misleading, and inaccurate" information about the DNA evidence, including showing the jury a chart that contained fabricated DNA results, using the chart to make additional incorrect claims about the DNA evidence during closing arguments, and falsely arguing that Simmons was the only possible source of the DNA. During state post-conviction proceedings, the state's forensic witness recanted her testimony about the DNA, and the court found that her trial testimony "had no evidentiary value in identifying" Simmons. Simmons's efforts to obtain a new trial drew support from The Innocence Network and advocacy groups for people with disabilities, which stressed the increased risk of false confessions and wrongful conviction in cases with intellectually disabled defendants. In 2000, Virginia Governor Douglas Wilder commuted the death sentence imposed on another intellectually disabled death-row prisoner, Earl Washington, who had falsely confessed to a rape and murder after DNA testing suggested he had not committed the offenses. Governor Jim Gilmore later granted Wahington a complete pardon after additional DNA testing excluded him as the rapist. In 2014, two intellectually disabled brothers, Henry McCollum and Leon Brown were freed because of evidence uncovered by the North Carolina Innocence Inquiry Commission, three decades after having been sentenced to death for the rape and murder of an 11-year-old girl. Both had been subjected to coercive interrogations and said they were unaware they were signing a confession.
The American Bar Association has released a new publication, The State of Criminal Justice 2017, an annual report examining major issues, trends, and significant changes in America's criminal justice system. In a chapter devoted to capital punishment, Ronald J. Tabak, chair of the Death Penalty Committee of the ABA's Section of Individual Rights and Responsibilities, describes significant death penalty cases and developments over the past year. Tabak reports on historic declines in new death sentences and in executions in the U.S.: new death sentences were at their lowest level since 1973, with nearly three-quarters concentrated in just five states—California, Ohio, Texas, Alabama, and Florida; and there were fewer executions than in any year since 1991. The chapter notes that only 27 counties imposed any new death sentences in 2016, highlighting the small number of counties—16 nationwide—that produced five or more death sentences in the first half of this decade, and describing the "problems permeating" the administration of the death penalty in those jurisdictions. It also discusses the potential for further national declines in new death sentences as a result of the electoral defeat of prosecutors in four of the most prolific death-sentencing counties, and their replacement with prosecutors who have expressed "great skepticism about capital punishment." Tabak's chapter also includes sections on "major court cases that will greatly diminish new death sentences," other key Supreme Court cases, legislative activity involving death penalty issues, and the effects of death penalty moratoria imposed by four governors. Tabak says "[t]here is accelerating recognition of major systemic problems with capital punishment" and that "[t]he more that people know about the death penalty as actually implemented, the more they oppose it." As a result, he says, the death penalty in practice has increasingly "been attacked by people who have served in the judiciary or law enforcement, taken part in executions, written death penalty laws, or are politically conservative." Ultimately, he concludes, "our society must decide whether to continue with a penalty implemented in ways that cannot survive any serious cost/benefit analysis."
A Nebraska trial judge has permitted Patrick Schroeder (pictured)—whose lawyers from the Nebraska Commission on Public Advocacy had challenged the constitutionality of the state's death penalty—to fire his lawyers, withdraw the challenge, and plead guilty to first-degree murder. The court deferred until August 22 whether to also permit Schroeder to waive his right to have a jury decide whether aggravating circumstance exist that could make him eligible for the death penalty. The court reappointed public defenders Sarah Newell and Todd Lancaster to represent Schroeder in the penalty-phase proceedings. Schroeder was serving a life sentence for a prior murder when he choked Terry Berry, his cellmate at the Tecumseh State Correctional Institution, to death in April. Authorities found a ripped-up note in the trash can of their cell, which read: “You really need to get Terry Berry out of my cell before he gets hurt.” In June, Schroeder’s lawyers had filed a motion to bar the death penalty in his case, arguing that its application in Nebraska is unconstitutionally arbitrary and that the state's sentencing procedures violate the U.S. Supreme Court's 2016 decision in Hurst v. Florida requiring that juries find all facts necessary to impose the death penalty. The motion argued that Nebraska's law is inconsistently applied geographically, with only four of the state's 93 counties imposing death sentences, and is racially discriminatory. Eight of the nine men sent to death row in the last 15 years in the state have been defendants of color. Schroeder's lawyers also asserted that Nebraska's three-judge sentencing panel violated Hurst because it required that judges, rather than a jury, determine whether aggravating circumstances outweigh mitigating circumstances and justify imposing the death penalty. Only a handful of states permit judicial death sentencing without a prior unanimous jury finding that aggravating circumstances outweigh mitigation. Courts in Florida and Delaware have already struck down those states' statutes, holding that the weighing process is a factfinding that must be made by a jury. Alabama's appeal courts overturned a trial court ruling that its judicial factfinding was unconstitutional. The motion also had challenged the state's execution protocol as an unlawful delegation of legislative powers that gives prison directors overly broad discretion to determine the types and quantities of drugs to be used in the lethal-injection process. Schroeder’s waiver leaves the constitutionality of Nebraska's sentencing statute unresolved. The Nebraska legislature repealed the state's death penalty in 2015 over the veto of Governor Pete Ricketts, but Nebraska voters restored the statute in a 2016 referendum. The state last carried out an execution in 1997. [UPDATE: The Nebraska Supreme Court has agreed to review an appeal by brought by death-row prisoner Marco Torres to determine whether his challenge to the constitutionality of the state's death-penalty statute under Hust v. Florida was timely raised and can be decided by the courts.]
Jury Vote Spares Death Penalty for Mississippi Man With History of "Chronic and Severe" Mental IllnessPosted: July 28, 2017
A Jackson County, Mississippi judge has sentenced Scotty Lakeith Street (pictured), a capital defendant suffering from chronic paranoid schizophrenia, to life without possibility of parole after his capital sentencing jury did not reach a unanimous sentencing verdict. The sentence is another in a series of notable cases in which jurors presented with evidence of mental illness have spared severely mentally ill defendants the death penalty. Street was convicted murdering a retired special education teacher, stabbing her 37 times. His lawyers presented evidence from family members, caregivers, and mental health experts of his lifelong history of "erratic" behavior and what two psychiatrists called his "chronic and severe" mental illness. Family testimony detailed his repeated mental health hospitalizations, with one sister testifying "Scotty's been institutionalized so much, it's beyond my count." A mental health professional who treated Street testified that as a result of the effects of his schizophrenia, he needed to live in a group home with the services of a caregiver. Witnesses described some of Street's schizophrenia-induced bizarre behavior, including putting plastic bags on his head "to keep his brain from leaking out," swallowing nails, painting his body, running naked in public, and tying a Coke bottle to his genitalia. A poll released in December 2014 found that Americans oppose the death penalty for people with mental illness by more than a 2-1 margin. That has been reflected in a number of high-profile jury verdicts in the last few years in cases involving severely mentally ill defendants. James Holmes, a severely mentally ill and delusional man who killed twelve people in an Aurora, Colorado movie theater, and Joseph McEnroe, who murdered 6 members of his girlfriend's family near Seattle, Washington, were sentenced to life when multiple jurors in their cases believed their mental illness made the death penalty an inappropriate punishment. Juries returned unanimous life sentences for mentally ill Dexter Lewis in the stabbing deaths of five people in a Denver bar and Christopher Monfort in the murder of a Seattle police officer. An April 2017 study of 21st century executions revealed that 43% of the prisoners executed since the turn of the century had received a mental illness diagnosis at some point in their lives. In 2012, Mississippi executed Edwin Turner, a mentally ill man with a family history of mental illness: his great-grandmother and grandmother were committed to state hospitals and his mother attempted suicide twice. A Florida man, John Ferguson, also diagnosed with paranoid schizophrenia, was executed in Florida on August 5, 2013, despite reportedly having experienced severe hallucinations since 1965. This year, legislation has been introduced in seven states to bar the death penalty for severely mentally ill defendants.
Oklahoma Prisoners Argue State's Application of the Death Penalty Is Racially Biased, UnconstitutionalPosted: July 27, 2017
Newly available evidence shows that Oklahoma's death penalty unconstitutionally discriminates on the basis of race, according to petitions filed by lawyers seeking to overturn the death sentences imposed on two African-American defendants, Julius Darius Jones (pictured) and Tremane Wood. Jones—a high school athlete and honor student who did not fit the description of the shooter and who has continuously maintained his innocence—and Wood were convicted and sentenced to death for killing white male victims in separate cases. Both men's claims are based on data from a study of race and the death penalty that was released as part of the April 2017 report of the Oklahoma Death Penalty Review Commission showing that, for the period 1990-2012, Oklahoma defendants convicted of killing white victims were more than twice as likely to be sentenced to death as those convicted of killing victims of color. For cases like Jones's and Wood's that involved only white male victims, defendants were nearly three times more likely to be sentenced to death. The study also showed that defendants of color were nearly three times more likely to be sentenced to death if convicted of killing a white victim than a victim of color and nearly twice as likely as a white defendant to be condemned for killing a white victim. Jones's petition argues that his death sentence violates the state and federal constitutions because he "faced a greater risk of execution by the mere happenstance that the victim who he was accused and convicted of killing was white.” Both Jones and Wood were capitally charged in Oklahoma County, one of the 2% of American counties responsible for more than half of all prisoners on the nation's death rows. 54 men and women were sent to death row during the 21-year administration of District Attorney “Cowboy” Bob Macy, who retired in 2001. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.” Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Jones has also filed a motion with the Oklahoma County court seeking DNA testing on a red bandana that an eyewitness said the shooter was wearing over his face at the time of the murder. His lawyers say the bandana may contain DNA evidence that would identify the shooter and exonerate Jones.
After a hiatus of 3½ years, Ohio resumed executions on July 26, putting Ronald Phillips (pictured, photo credit: Forgiveness Foundation) to death with a three-drug combination of the sedative midazolam, the paralytic drug rocuronium bromide, and the heart-stopping drug potassium chloride. Phillips was pronounced dead at 10:43 a.m. It was the state's first execution since the botched execution of Dennis McGuire on January 16, 2014, and the 15th in the U.S. in 2017. Phillips' execution is the first of four executions that Ohio has scheduled for this year and of 27 scheduled through 2020. Ohio's resumptions of executions is expected to contribute to a small increase in executions in the U.S. this year, although the annual total is likely to remain among the lowest in the last quarter century. Phillips was executed despite the efforts of a diverse range of groups, including former attorney generals, justice reform advocates, exonerees, faith leaders, and editorial writiers, urging Governor John Kasich not to resume executions before Ohio addressed serious systemic flaws in its death penalty process that had been identified by a statewide death penalty task force. Phillips had sought a stay of execution until an ongoing challenge to Ohio's lethal-injection process is finally resolved, and his application drew support from fifteen pharmacology professors who filed a brief calling midazolam "unsuitable" and its as an execution drug "profoundly troubling." Justices Sotomayor and Ginsburg dissented from the denial of the stay, saying the court's action constituted a “failure to step in when significant issues of life and death are present.” Ohio officials said the execution proceeded without incident. Allen L. Bohnert, one of the lawyers who represents prisoners in the ongoing lethal-injection litigation, released a statement saying: "While Ohio will try to characterize today’s execution as 'problem-free,' do not be fooled." By choosing to inject the paralytic drug "extremely quickly," he said, Ohio "hid[ ] the real facts behind an artificial chemical curtain, . . . masking the problems with midazolam seen in multiple other executions." He urged the state to "heed the warnings of numerous pharmacists, pharmacologists, and anesthesiologists . . . and immediately halt any further use of midazolam and the paralytic drug in lethal injection executions." Ohio has executed 53 prisoners since the turn of the century—the most of any northern state and more than the combined total of every other northern state east of the Mississippi. Ohio ranked with Texas and Oklahoma as the only states to have executed at least one prisoner each year from 2001 to 2014.
Arizona will soon end its policy of automatically and indefinitely incarcerating death-row prisoners in solitary confinement, joining a growing number of states to ease draconian conditions on their state death rows. Arizona's action is part of a settlement of a federal lawsuit filed against the Department of Corrections (DOC) by death-row prisoner Scott Nordstrom (pictured), which argued that the state's death-row conditions were unconstitutionally harsh. Nordstrom's attorney, Sam Kooistra, said that the change in housing does not mean "softer treament" for condemned prisoners, but rather that they "get treated more like non-death sentence inmates do" by being afforded an individualized housing assessment based upon their conduct in prison and the risk they pose to others. 70% of the approximately 2,900 prisoners on death row in the U.S. are automatically held alone in their cells for more than 20 hours per day, with nearly two-thirds held in solitary confinement more than 22 hours per day, according to a survey of state corrections officials by The Marshall Project. Other states such as California, Colorado, Louisiana, Nevada, North Carolina, Tennessee, and Virginia—prompted by court challenges over death-row conditions—have already begun to allow death-sentenced prisoners more time out of their cells and, in some cases, to eat meals and exercise with other inmates, have contact visits with family members, and hold prison jobs. In February, a federal appeals court declared unconstitutional Pennsylvania's long-standing practice of automatically keeping prisoners whose death sentences had been overturned in solitary confinement—sometimes for years—until they had completed retrial or resentencing proceedings and received a lesser sentence. Nine condemned prisoners in Florida have also filed suit on behalf of the more than 350 prisoners currently held on the state's death row, which asks the court to prohibit prisoners from being held in solitary confinement for indefinite duration and without a case-specific justification. Currently, Florida holds death-sentenced prisoners in solitary confinement up to 23 hours every day. Three prisoners on Louisiana's death row have filed filed a federal class action lawsuit charging that their isolation at the Louisiana State Penitentiary at Angola amounts to a “severe denial of human fundamental needs.” Although prison officials have begun allowing death-sentenced prisoners four hours out of their cell per day, as well as some educational programming and activities with other prisoners, Betsy Ginsberg—one of the Angola prisoners’ lawyers—said the class-action lawsuit will continue to ensure that the recent changes are “constitutionally adequate, properly implemented, and permanent.” These developments in death-row conditions come in the midst of a national rethinking of the use of solitary confinement, which has come under fire as unnecessarily, psychologically debilitating, cruel, and expensive.