Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.
The FBI Uniform Crime Report for 2017, released by the U.S. Department of Justice, reports that murder rates stabilized across the United States in 2017, decreasing marginally compared to adjusted homicide figures from 2016 but remaining above the record lows recorded earlier in the decade. The initial FBI crime figures for 2017 report 17,284 murders across the United States in 2017, compared to 17,413 in 2016, dropping the nationwide murder rate from 5.4 murders per 100,000 people to 5.3. The homicide numbers are virtually identical to the initial FBI homicide figures included in the 2016 FBI Uniform Crime Report, which initially reported 17,250 murders and a murder rate of 5.3 murders per 100,000 people in 2016. Once again, states with the death penalty tended to have higher murder rates than states without the death penalty, with Louisiana and Missouri topping the list at 12.4 and 9.8 murders per 100,000 population, respectively. Seven of the nine states with the highest murder rates (and sixteen of the twenty highest) are death-penalty states, while five of the eight states with the lowest murder rates (and nine of the lowest fifteen) do not have the death penalty. New Hampshire, which has the death penalty, and North Dakota and Maine, which do not, had the lowest murder rates at 1.0, 1.3, and 1.7 murders per 100,000 population, respectively. The data also supports the idea that abolishing the death penalty does not make states more dangerous. Delaware, which ended the death penalty in 2016, saw a 7.8% decrease in its murder rate from 2016 to 2017. As in past years, regional data showed that more executions do not mean lower murder rates. The South, which has performed far more executions than any other region, continued to have the highest murder rate (6.4 per 100,000 people), while the Northeast, which has carried out only four executions since 1976, had the lowest (3.5). FBI data shows that murder rates have fallen dramatically since the 1980s and 1990s, contributing to the nationwide decline in capital punishment. The current murder rate is 45.9% below 1991's murder rate of 9.8 per 100,000 people. However, the decline in new death sentences has been even greater, with the 39 death sentences imposed in 2017 87.5% below the 315 death sentences imposed in 1994 and 1996.
Questionable Ruling Grants Jeffrey Havard New Sentencing but Not New Trial in Controversial “Shaken Baby” CasePosted: September 24, 2018
Sixteen years after a notorious and now-discredited forensic witness told a Mississippi jury that Jeffrey Havard had sexually abused and shaken his girlfriend's six-month-old daughter to death, Havard's death sentence—but not his conviction—has been overturned. On September 14, 2018, Adams County Circuit Judge Forrest Johnson ruled that state pathologist Steven Hayne's recantation of his diagnosis that infant Chloe Britt had been a victim of Shaken Baby Syndrome was "not sufficient to undermine this court's confidence in the conviction," but that "there is a cautious disturbance in confidence of the sentence of death, even if slight." Havard's co-counsel, Graham Carner, told the Mississippi Clarion Ledger, "With all due respect, we think the court got it wrong. We are disappointed, but we are not done." Washington Post columnist Radley Balko criticized Johnson's five-page ruling—which repeatedly misspells the expert's name as "Haynes"—as "gutless" and "sloppy." Balko, whose book The Cadaver King and the Country Dentist: A True Story of Injustice in the American South exposed rampant irregularities in forensic testimony in Mississippi murder cases, said, “It doesn’t seem like too much to ask that the judge correctly spell the name of the state’s expert whose testimony is the entire reason that the hearing took place.” During a 2002 trial that rocketed from jury selection to a death sentence in just two days, the state—supported by Hayne's testimony—argued that Havard had anally and orally raped the infant and shaken her sufficiently to cause injuries that would later kill her. The defense presented a single witness who provided all of three pages of testimony, failing to challenge the forensic testimony in the case. Defense counsel also failed to explain to the jury that, as Balko writes, Havard supposedly "anally raped the infant, orally raped her, shook her violently enough cause injuries that would later — but not immediately — kill her, then bathed and cleaned her" so thoroughly that "none of Havard’s hair, skin cells or semen was found on or inside the girl," "dressed her, and tucked her into bed as if nothing had happened" — all in the time it took Chloe's mother to go the store "to buy some burrito supplies." Since the trial, Hayne has recanted his testimony that Chloe was sexually assaulted and says he was wrong to attribute the child’s head injuries to SBS (Shaken Baby Syndrome). Hayne had testified under oath that he regularly performed 1,500 or more autopsies each year, nearly five times the maximum number recommended by the National Association of Medical Examiners. He had never been certified in forensic pathology by the American Board of Pathology and failed the certification exam in 1980. Three other reputable experts who reviewed Hayne’s autopsy report found no evidence of abuse on the infant. In 2008, he was barred from doing autopsies for Mississippi prosecutors and the U.S. Court of Appeals for the Sixth Circuit called his work declared "discredited." At least ten men and women have been exonerated from death rows across the United States after having been wrongly convicted for killing a child. In the cases of Rodricus Crawford and Sabrina Butler, the medical evidence also showed that no crime had occurred, but the defendants were convicted based on false forensic testimony. In April 2018, Vicente Benavides was exonerated from California’s death row after the prosecution presented false forensic testimony claiming that a toddler in his care had been sexually assaulted.
Women face “widespread discriminatory practices in the capital prosecution and detention” in death-penalty countries around the world, according to a new report by the Cornell Center on the Death Penalty Worldwide and the World Coalition Against the Death Penalty. The report, Judged for More Than Her Crime: A Global Overview of Women Facing the Death Penalty—released at the United Nations in Geneva, Switzerland on September 18, 2018—examines the use of capital punishment against women worldwide, including the crimes for which women are sentenced to death and the conditions of imprisonment they face on death row. At least 500 women are on death rows around the world, and the report estimates that more than 100 women have been executed in the last decade. The cases in which women are sentenced to death, the report states, are “emblematic of systemic failings in the application of capital punishment,” with death sentences often imposed on women who are illiterate, mentally ill, intellectually disabled, or members of marginalized ethnic groups. The report finds that women’s histories of gender-based violence are frequently ignored by attorneys and judges in those countries that retain the death penalty. In a statement accompanying release of the report, the Cornell Center wrote, “[f]emale survivors of domestic abuse are particularly vulnerable to unfair sentencing practices.” While the report notes that gender bias can operate in favor of more lenient sentencing for some women, that same gender bias results in harsher treatment of women who are seen as violating gender expectations. “[W]omen facing the death penalty have been cast as the ‘femme fatale,’ the ‘child murderer,’ or the ‘witch,’” the report says. In the foreword to the report, Agnes Callamard, the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, writes that “[c]riminal justice processes, largely designed by and for men, frequently are not only blind to the causes and consequences of gender-based violence, they may actively reinforce gender-based discrimination.” The report, she says, “reveals that courts judge women not just for their alleged offenses, but also for what are perceived to be their moral failings as women: as ‘disloyal’ wives, ‘uncaring’ mothers, ‘ungrateful’ daughters. Nowhere are transgressions of the social norms of gender behavior punished more severely than in a capital trial.” The report also documents how women are uniquely affected by the harsh conditions on death rows around the world. In some countries, they must care for their infants or young children while shackled by the hands and feet. Female prisoners in Thailand and Myanmar have reportedly given birth alone in prison. Menstruating women are given little or no access to sanitary pads or other necessary products. Sandra Babcock, Faculty Director of the Cornell Center on the Death Penalty Worldwide, said: “Hundreds of women have been unjustly sentenced to death around the world, yet their cases have been neglected by activists, scholars, and the international community. We hope that this report will draw attention to their plight and inspire courts and policymakers to modify their sentencing practices.”
For the first time in more than a quarter century, fewer than 2,500 prisoners across the United States now face active death sentences. According to the latest Death Row USA national census by the NAACP Legal Defense Fund (LDF), released in early September 2018, 2,743 people were on death rows in 32 states and the U.S. federal and military death rows on April 1, 2018. That total includes 249 people who were previously sentenced to death but face the possibility of a capital resentencing after a new trial or new sentencing hearing and prisoners whose capital convictions or death sentences have been reversed, but whose reversals are still subject to appeal by the state. 2,494 other prisoners face active death sentences. The Spring 2018 death-row census reflects that death row has declined by 100 from the 2,843 reported on death row as of April 1, 2017, and by 17% over the course of the last decade. The overall decline in the number of people on death rows across the country is greater than the number of executions in that period, meaning that more former death-row prisoners have been resentenced to life or less after overturning their death sentences, died from non-execution causes, or been exonerated than have been added to the row with new death sentences. California (740), Florida (354), and Texas (235) remain the nation’s largest death rows. Of the jurisdictions with at least 10 people on death row, those with the highest percentage of racial minorities are Texas, Louisiana, and Nebraska, each at 73%. The last time LDF recorded fewer than 2,500 prisoners facing active death sentences in the United States was in January 1993, when the Winter 1992 Death Row USA reported that 2,483 of the 2,676 men and women then on death row had active death sentences.
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 NationwidePosted: 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.
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.”
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 PenaltyPosted: 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.”