Texas capital murder exoneree Christopher Scott (pictured) has urged Dallas County's new District Attorney, Faith Johnson, to drop the death penalty from murder charges pending against Erbie Bowser. Bowser, who is black, is a seriously mentally ill Marine veteran who was discharged from military service after having been diagnosed with Post-Traumatic Stress Disorder. He faces four capital charges in the killings of his girlfriend, his estranged wife, and their daughters. When police found him, he was reportedly reciting his name, rank, and serial number, and the medical staff at the hospital to which he was taken him described him as delusional. In a guest column for the Dallas News, Scott—who served 12 years of a life sentence for a murder he did not commit—writes that the Dallas DA's office "has failed the African-American community for generations," and says that "[t]he Bowser case offers an opportunity for Johnson to change the way her office has historically treated African Americans accused of committing capital crimes." He notes that in 2013, the Dallas District Attorney's office "agreed not to seek the death penalty in a nearly identical case involving a white defendant, William Palmer[, who had] stabbed his wife and both her parents to death while his wife's sister and her six-year-old hid in a closet." Dallas has long been criticized for its history of racial bias in enforcing its criminal laws, including bias in jury selection and the application of the death penalty. During the 30-year administration of Henry Wade, the office produced a training manual instructing prosecutors to exclude people of color from juries, and in a death penalty decision in 2005, the U.S. Supreme Court found that black people in Dallas County had been "almost categorically ... excluded from jury service." The racially disproportionate use of the death penalty has continued in subsequent prosecutorial administrations. A report from the Fair Punishment Project identified Dallas is one of only 16 U.S. counties that imposed five or more death sentences between 2010 and 2015; seven of the eight people sentenced to death in that period were black. Johnson, whom Wade hired in 1982, is the first African-American woman to serve as District Attorney and Bowser's case is considered a barometer of the path she will follow in capital prosecutions. In addition to the issue of racial fairness, Bowser's case presents serious questions about the appropriateness of the death penalty for defendants with severe mental illness, and in particular, veterans with PTSD. Bowser has a history of hallucinations and psychosis stretching back to his adolescence, and reportedly was on more than a dozen medications, including sedatives and antipsychotics, at the time of his arrest. So far this year, seven states have proposed legislation to exempt people with serious mental illness, including PTSD, from the death penalty.
The costs of the death penalty are more than financial, they are emotional; and these effects are felt not just by the parties to the trial and the families of victims and defendants, but by the jurors as well. A recent report in the Akron Beacon Journal describes the traumatic psychological impact serving in the Summit County, Ohio death penalty trial of Eric Hendon had on the jurors in that case. After a three-month trial and capital-sentencing hearing, the jury found Hendon guilty of a 2013 triple murder and sentenced him to life without parole. Before the trial even began, one juror wrote about her concerns about the death penalty, saying, "It is very difficult for me to fathom crime against people, especially violent crime. It is equally difficult for me to fathom how capital punishment can be good. I understand it is our law. If necessary, I will do my duty. I must admit, though, my hope coming in was that I would serve on a trial that would not tear my soul apart." In the aftermath of the trial, several jurors said the experience had adversely affected them. One juror reported trouble sleeping for weeks after the trial ended. Another said he was haunted by images of the crime. A white juror reported becoming paranoid after the trial, saying seeing two black men (defendant Eric Hendon is also black) in an older model car near his home "kind of freaked me out." A number of jurors did not want to talk to the press and, fearing harassment for their jury service, tried to keep their names and addresses from being released to the Beacon Journal. After the trial ended, Judge Amy Corrigan Jones held hearings to decide whether to release the jurors' information. Six jurors attended the hearings and said they worried for their safety if their information was released. One woman became emotional at the hearing, saying she did not want to relive the experience. “I don’t want to think about this,” she said. “I need to stop messing with my life. I need to move on.”
Arkansas Governor Asa Hutchinson signed orders on February 27 for an unprecedented eight executions to be carried out over a period of ten days in April. The scheduled dates for the four sets of double executions are: April 17, Bruce Ward and Don Davis; April 20, Stacey Johnson and Ledell Lee; April 24, Jack Jones and Marcel Williams; and April 27, Kenneth Williams and Jason McGehee. Arkansas Attorney General Leslie Rutledge asked that the dates be set after the U.S. Supreme Court on February 21 declined to review a state court decision upholding Arkansas' lethal injection protocol. Because of drug shortages and challenges to its lethal injection procedures, the state has not carried out an execution since 2005. If all eight executions are performed, it will be the first time since 1997 that a state has executed eight people in one month, when Texas conducted eight executions in both May and June of that year. No other state has conducted as many as eight executions in a single month since executions resumed in the U.S. in 1977, and no state has carried out eight executions in ten days. Scheduling two or more executions on the same day is also unusual; states have executed two or three inmates on the same day just ten times in the last forty years, and no state has carried out more than one double execution in the same week. The hurried schedule appears to be an attempt to use the state's current supply of eight doses of midazolam, which will expire at the end of April. Arkansas does not currently have a supply of potassium chloride, the killing drug specified in its execution protocol, but believes it can obtain supplies of that drug prior to the scheduled execution dates. Attorneys for the eight death-row prisoners filed an amended challenge to Arkansas' lethal injection procedures in state court on February 25 and wrote a letter to the governor urging him to reconsider the lethal injection protocol. "We believe it would be a mistake for you to uncritically accept the Supreme Court's opinion as a license to use the current protocol," the attorneys said. "Not only would our clients suffer, but so would our state's image and moral standing in the eyes of the country and the world." No state has successfully executed two prisoners on the same day using midazolam. Oklahoma attempted to do so on April 29, 2014, but called off the second execution after the botched execution of Clayton Lockett earlier that night. The eight prisoners scheduled for execution make up 23% of Arkansas' current death row.
The U.S. Court of Appeals for the Sixth Circuit overturned the conviction and death sentence of Tennessee death-row prisoner Andrew Lee Thomas, Jr. on February 24, ruling that Shelby County District Attorney General Amy Weirich had unconstitutionally withheld evidence that a key prosecution witness had been paid for her cooperation in the case and then elicited perjured testimony from the witness lying about the payment. Weirich is currently facing ethical charges from the Tennessee Board of Professional Responsibility arising out of misconduct in another murder trial, State v. Noura Jackson, in which the Tennessee Supreme Court found that Weirich had failed to disclose exculpatory evidence to the defense and had improperly commented on the defendant's decision not to testify. According to the court's ruling in Thomas's case, his former girlfriend, Angela Jackson, had provided "the only reliable testimony placing Thomas at the scene of the shooting." During trial, Weirich asked Jackson: "Have you collected one red cent for this?" Jackson replied, "No, ma'am. I have not." In fact, Jackson had been paid $750 by the FBI on behalf of the joint state and federal Safe Streets Task Force. Calling Weirich's failure to disclose the payment “egregious,” the court said the "prosecutor had a duty to disclose this payment rather than allow the witness to commit perjury by denying its existence." Shelby County, where Thomas was tried, is among the 2% of U.S. counties that account for a majority of all death sentences imposed in the United States. Its county prosecutors have been dogged by charges of misconduct. In 2014, Weirich defended the conduct of Tom Henderson, a veteran homicide prosecutor in her office who had been censured by the Tennessee Supreme Court for misconduct in the capital trial of Michael Rimmer after a judge had found that Henderson had made “blatantly false, inappropriate and ethically questionable” statements to the Court and defense counsel about the existence of exculpatory evidence, “purposefully misled counsel with regard to the evidence,” and withheld exculpatory evidence he was constitutionally required to disclose.
Human Rights Magazine, a quarterly publication by the American Bar Association, focused its first-quarter 2017 edition on capital punishment, marking the 40th anniversary of Gregg v. Georgia. Articles by nationally-renowned death penalty experts examine geographic disparities in death sentences, secrecy and lethal injection, intellectual disability, mental illness, and other critical questions in the current discourse around the death penalty. In the introduction to the magazine, Seth Miller, executive director of the Innocence Project of Florida and chair of the ABA Death Penalty Due Process Review Project, and Misty Thomas, staff director of the ABA Death Penalty Due Process Review Project, write, "Forty years after Gregg, attorneys, scholars, and advocates continue to debate whether our collective concerns regarding the arbitrary and discriminatory application of the death penalty have indeed been adequately addressed. The anniversary of this crucial decision—which marks, in effect, the “birth” of the modern death penalty—provides an essential opportunity for reflection and consideration of this critical question."
In an expansion of their stance opposing nurse participation in executions, the American Nurses Association (ANA) announced on February 21, 2017 that the organization now for the first time opposes capital punishment itself. "Capital punishment is a human rights violation, and ANA is proud to stand in strong opposition to the death penalty," ANA President Pamela F. Cipriano said. "All human beings, regardless of their crimes, should be treated with dignity. For those states where capital punishment is currently legal, the American Nurses Association will continue to provide ethical guidance, education, and resources for nurses and other health care providers dealing with these ethical dilemmas." The ANA had long opposed nurses participating in the death penalty in any role, adopting that position in 1983. “The drafters of the subcommittee were initially supporters of the death penalty until they started doing research," Liz Stokes, the senior policy advisor for the ANA Center for Ethics and Human Rights, said. But as they studied the issue, she said, they were moved by the body of evidence showing problems in the way it was administered. Ultimately, the ANA’s board of directors unanimously adopted the new position. The ANA statement offers nine reasons for the association's opposition to the death penalty, including racially and geographically biased application, the risk of executing innocent people, botched executions, and high costs. The new position aligns with the International Council of Nurses, which "considers the death penalty to be cruel, inhuman and unacceptable," and reflects a growing consensus among medical organizations that participation in executions by medical professionals is unethical. The American Medical Association, American Board of Anesthesiology, and American Pharmacists Association, among others, have discouraged or forbidden their members from participating in executions and American pharmaceutical manufacturers have adopted policies seeking to prevent misuse of their medicines as execution drugs.
Saying that the "law punishes people for what they do, not who they are," the Supreme Court on February 22, 2017, granted relief to Duane Buck (pictured, right), a Texas death-row prisoner who was sentenced to death after his own lawyer presented testimony from a psychologist who told the jury Buck was more likely to commit future acts of violence because he is black. Writing for the six-Justice majority, Chief Justice Roberts (pictured, left) said that "[d]ispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle." Buck's case turned on the legal question of whether his lawyer had provided ineffective assistance. The Court left no doubt on the issue. Chief Justice Roberts wrote that "[n]o competent defense attorney would introduce such evidence about his own client." Despite counsel's deficient representation, the lower federal courts had refused to intervene, asserting that the references to race in the case had been brief and would have had only minimal, if any, effect on the jury's sentencing decision. The Chief Justice squarely rejected that conclusion, writing: "when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." The Court explained that stereotyping black men as somehow more violence-prone than others is a "particularly noxious strain of racial prejudice." Buck's attorney, Christina Swarns, who had argued the case before the Court in October 2016, said “Today, the Supreme Court made clear that there is no place for racial bias in the American criminal justice system.” The decision, she said, reaffirms "the longstanding principle that criminal punishments—particularly the death penalty—cannot be based on immutable characteristics such as race.” Justice Clarence Thomas, joined by Justice Samuel Alito, dissented.
In a retreat from one of its prior decisions, the Florida Supreme Court ruled on February 20 that prosecutors could move forward with death penalty trials under Florida's constitutionally flawed capital sentencing statute, provided the trial court specifically instructs the sentencing jurors that they must unanimously find all facts that could make a defendant eligible for the death penalty and that they must unanimously recommend death before the trial judge may impose a death sentence. In January 2016, the U.S. Supreme Court struck down Florida's death penalty law in Hurst v. Florida because the trial judge, rather than the jury, was responsible for finding critical facts necessary to impose a death sentence. In response to that decision, the Florida legislature amended the state's capital sentencing statute to require juries to unanimously find at least one aggravating circumstance, but allowed the trial judge to impose a death sentence if at least 10 of 12 jurors recommended death. In October 2016, the Florida Supreme Court ruled in Perry v. State that this new sentencing statute violated the state and federal constitutions because it unconstitutionally permitted the judge to impose death despite a nonunanimous sentencing recommendation by the jury. At that time, the court declared that the sentencing law "cannot be applied to pending prosecutions." The latest ruling, in the cases of Patrick Albert Evans v. State of Florida and Juan Rosario v. State of Florida, reverses that decision. Legislators have proposed bills to revise the law and bring it in line with the court's October ruling. The latest decision allows death penalty cases to proceed even before such legislation is passed, but courts will only be allowed to impose a death sentence if the jury first unanimously agrees that it is the appropriate sentence.
In his newest book, The Death Penalty As Torture: From the Dark Ages to Abolition, John Bessler chronicles the historical link between torture and the death penalty from the Middle Ages to the present day and argues that both are medieval relics. The book, released on February 17, 2017, asserts that capital punishment is itself a form of torture, despite modern legal distinctions that outlaw torture while permitting death sentences and executions. Bessler draws on the writings of philosophers such as Cesare Beccaria and Montesquieu, who condemned both practices and concluded that any punishment that was harsher than absolutely necessary was unjustifiable. Bringing these historical threads to the modern day, Bessler writes that the availability of highly-secure penitentiaries has made the death penalty unnecessary as an instrument of public safety. He argues that with more than 80% of the world's nations either not conducting executions or barring the death penalty outright, it is time for international law to recognize a norm against the use of the death penalty. Bessler is a professor at the University of Baltimore School of Law whose previous books on capital punishment include Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment, The Birth of American Law: An Italian Philosopher and the American Revolution, and Against the Death Penalty.
In an op-ed in the Memphis newspaper, The Commercial Appeal, former Tennessee Attorney General W.J. Michael Cody (pictured) has expressed his support for a bill that would exempt people with serious mental illness from the death penalty. Cody, who later served as a member of the American Bar Association's Tennessee Death Penalty Assessment Team, said that "as society's understanding of mental illness improves every day," it is "surprising that people with severe mental illnesses, like schizophrenia, can still be subject to the death penalty in Tennessee." In his op-ed, Cody describes how cases with seriously mentally ill defendants differ from other capital cases: "In 2007, an ABA study committee, of which I was a member, conducted a comprehensive assessment of Tennessee’s death penalty laws and found that 'mental illness can affect every stage of a capital trial' and that 'when the judge, prosecutor and jurors are misinformed about the nature of mental illness and its relevance to the defendant’s culpability, tragic consequences often follow for the defendant.'" He also draws on his experience as the state's top prosecutor, saying, "As a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ...But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole." Tennessee is one of at least seven states in which legislators have introduced bills that would exempt those with severe mental illness from the death penalty. Numerous legal and mental health organizations, including the American Bar Association, American Psychiatric Association, and National Alliance on Mental Illness, support excluding defendants with serious mental illness from the death penalty.