An Arizona death-row prisoner has petitioned the U.S. Supreme Court to review the constitutionality of the state's capital punishment statute, arguing that Arizona's sentencing scheme "utterly fails" the constitutionally required task of limiting the death penalty to the worst crimes and worst offenders. On August 15, lawyers for Abel Daniel Hidalgo (pictured) wrote that a study of more than a decade's worth of murder cases from Maricopa County, where Hidalgo was tried, showed that aggravating factors that could make a defendant eligible for the death penalty were present in 99% of all the cases. This, they say, violates the Eighth Amendment requirement established by the Court that a capital-sentencing statute must “genuinely narrow the class of persons eligible for the death penalty.” They wrote that evidence presented to the Arizona state courts showed that "every first degree murder case filed in Maricopa County in 2010 and 2011 had at least one aggravating factor" that made a defendant eligible for the death penalty, and that over the course of eleven years, 856 of 866 first-degree murder cases filed in the county had one or more aggravating circumstances present. In a press statement, Hidalgo's defense team says that, as a result, "geography and county resources—rather than the characteristics of the offender or the crime—play an outsized role in Arizona’s arbitrary application of the death penalty." With the fourth largest death row in the U.S. as of January 2013, Maricopa County imposed the death penalty at more than double the rate per murder as the rest of the state, and its 28 death sentences imposed between 2010-2015 were the third most of any U.S. county. Hidalgo's petition notes that defendants of color accused of killing white victims "are more than three times as likely to be sentenced to death as minorities accused of killing other minorities ... [a]nd a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." This, they say, makes Arizona's death penalty unconstitutionally arbitrary. In the alternative, the petition argues—citing national legislative and sentencing trends—that the death penalty nationwide now offends "evolving standards of decency" and should be declared unconstitutional. The lawyers write, "[t]he long experiment ... in whether the death penalty can be administered within constitutional bounds has failed. It has failed both in Arizona in particular and in the Nation more broadly."
NEW VOICES: More Than 100 Rabbis Issue Statement Calling for End to the "Cruel Practice" of Capital PunishmentPosted: August 14, 2017
A group of more than 100 rabbis from multiple Jewish denominations have issued a statement expressing their opposition to the use of the death penalty in the United States. The statement, posted by Rabbi Dr. Shmuly Yanklowitz (pictured) in Forward.com’s Scribe—a curated contributor network of Jewish thought—called for an end to the “cruel practice” of capital punishment and “for the beginning of a new paradigm of fair, equitable restorative justice.” The rabbis said that “[a]s Jews and citizens, we believe that governments must protect the dignity and rights of every human being. By using the death penalty, our country fails to live up to this basic requirement.” The rabbis invoked classical Jewish thought that, “[w]hile not categorically opposed to capital punishment, … saw the death penalty as so extreme a measure that they all but removed it from their system of justice.” The Sages, they wrote, “had a very high bar for reliable evidence, were eager to find ways to acquit, and were deeply concerned about the dignity of [the] condemned. In contrast, our American system today lacks the highest safeguards to protect the lives of the innocent and uses capital punishment all too readily.” The rabbis criticized the unreliability, unfairness, and costliness of the death penalty as administered across the U.S., exacerbated by a defendant’s poverty or “lack of access to legal resources.” “The consequences of this system,” they wrote, “are not only fundamentally unjust but also produce racially disparate outcomes.” They also expressed concerned about the system sending innocent people to death row: “too often,” they said, “the wrong person is convicted …. We do not naively believe that everyone on death row is completely innocent of any crime. Yet, it is time to see the death penalty for what it is: not as justice gone awry, but a symptom of injustice as status quo.”
Florida Denies Relief to Prisoner Unconstitutionally Sentenced to Death, in Decision that Could Affect More Than 75 CasesPosted: August 11, 2017
In a decision that could have broad impact on the state's death row, the Florida Supreme Court on August 10 upheld the death sentence imposed on James Hitchcock, despite his having been unconstitutionally sentenced to death. In a 6-1 ruling, the court said it would not enforce its 2016 ruling in Hurst v. State—which declared unconstitutional any death sentence imposed after one or more sentencing jurors had voted that a life sentence was the appropriate punishment—in cases that had completed the direct appeal process before June 2002. That date is when the U.S. Supreme Court ruled in Ring v. Arizona that a capital defendant has a Sixth Amendment right to have the jury determine all facts necessary for the state to impose a death penalty. But the Florida courts did not apply Ring to death-penalty cases in the state until the U.S. Supreme Court struck down Florida's death-penalty statute in 2016. At that time, in Hurst v. Florida, Justice Sonia Sotomayor reiterating that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." When Hurst's case returned to the Florida Supreme Court later that year, the state court ruled that non-unanimous jury verdicts were unconstitutional. However, the court then ruled in an appeal brought by Mark Asay—scheduled to be executed August 24—that it would not apply Hurst to cases that pre-dated Ring. Hitchcock and other Florida death-row prisoners pressed a number of other constitutional arguments, including that death sentences imposed after non-unanimous jury votes are unreliable, in violation of the Eighth Amendment, and that the court's bright-line cutoff for enforcing Hurst was unconstitutionally arbitrary, violating due rocess and the right to equal protection of the law. The Hitchcock court declined to consider those arguments, dismissing them as "nothing more than arguments that Hurst v. State should be applied retroactively to [Hitchcock's] sentence." Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases. Justice Barbara J. Pariente dissented, writing, "[r]eliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable." She noted that Hitchcock, who was twenty years old at the time of his crime, has had four different unconstitutional death sentences since he was first tried in 1977, with the U.S. Supreme Court twice overturning the death penalty in his case. She further noted that four Florida Supreme Court justices had written that his death sentence was disproportionate and that he should be resentenced to life. “To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process,” she wrote.
Federal Appeals Court Removes Military Judge From Case For Comments Prejudging 9/11 Detainee's GuiltPosted: August 10, 2017
A federal appeals court in Washington has ordered the recusal of a military judge from hearing an appeal in the Guantánamo military commission death penalty trial of five defendants accused of direct responsibility for the 9/11 attacks. A unanimous three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled on August 8 that Judge Scott L. Silliman of the United States Court of Military Commission Review (CMCR) was disqualified from participating in appeals in the case because of prior public comments he had made prejudging the guilt of accused 9/11 conspirator Khalid Sheikh Mohammad. Lawyers for Mohammad had petitioned the court to have Silliman removed from the case, citing more than a dozen instances in which, they said, Silliman had made comments exhibiting a constitutionally intolerable risk of bias. Before becoming a judge, Silliman gave an interview to The World Today in 2010 about the case of Guantánamo Bay detainee Ahmed Khalfan Ghailani. During that interview, he said: “We’ve got the major conspirators in the 9/11 attacks still at Guantánamo Bay—Khalid Sheikh Mohammed and four others.” Later in the same interview, Silliman compared Ghailani's culpability to that of Mohammed, calling them "two totally different types of cases” and saying “the magnitude of what they did is very different.” The judges wrote that “the Court can hardly perceive how calling Petitioner one of the ‘major conspirators in the 9/11 attacks’ and referring to what he 'did’ is anything other than the expression of an opinion concerning his responsibility for those attacks.” Such statements, they wrote, required Silliman to disqualify himself from the case. Because “Judge Silliman failed to do so," the court wrote, Mohammad had provided "clear and indisputable” grounds for his removal. Mohammad's petition also cited remarks made by Silliman in a 2008 interview with the Los Angeles Times, where he said that “we’re going to have a military commission for those the United States believes, and most of the world acknowledges, to be ring leaders of the 9/11 attacks.” The petition also said that Silliman was quoted in another media interview in 2011 discussing how and where Mohammad “will be” executed. The ruling vacates a June 29 order by the CMCR that had reinstated two charges against the defendants that the trial judge had dismissed. The CMCR will now have to re-hear the government's appeal of that issue before a new panel. University of Texas Law Professor Steve Vladeck, who represents several Guantánamo detainees in petitions seeking U.S. Supreme Court review of their cases, called the decision “yet another stinging rebuke" of the CMCR by the Court of Appeals. He said the decision in Mohammad's case puts off resolution of another question raised concerning the CMCR, “whether active-duty military officers (including the other two judges on the CMCR panel that originally heard the government’s appeal) may lawfully serve as judges on the CMCR."
Federal Court Invalidates Oklahoma Conviction and Death Sentence of Native American for Murder on Tribal LandsPosted: August 9, 2017
A federal appeals court has vacated the conviction and death sentence of Patrick Dwayne Murphy (pictured), a Native-American death-row prisoner in Oklahoma from the Muscogee (Creek) Nation, holding that the state lacked authority to try him for a murder that occurred within the borders of the Creek Reservation. On August 8, a unanimous three-judge panel of the U.S Court of Appeals for the Tenth Circuit sided with Murphy and Native American friend-of-the-court advocates in designating a region that spans eleven counties across Oklahoma—including most of Tulsa—part of “Indian country,” subject to exclusive federal jurisdiction for certain crimes enumerated under the federal Major Crimes Act. “Mr. Murphy is a member of the Muscogee (Creek) Nation,” the court wrote. “Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” The decision does not absolve Murphy of potential criminal liability for the murders: "The decision whether to prosecute Mr. Murphy in federal court," the Circuit panel said, "rests with the United States." The land in issue—falling inside the reservation boundaries of the Creek Nation drawn by the United States in 1866—has long been claimed by the Muscogee (Creek) Nation and lawyers for the Muscogee (Creek) Nation, the Seminole Nation of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma had filed amicus curiae briefs in the case arguing that it constituted Indian country under federal law. Judith Royster, an expert on tribal law at the University of Tulsa, said that the court's ruling reaffirms that claim. However, the decision's impact, she says, extends beyond the Creek Nation: "any crime committed by or against an Indian, not just a Creek citizen, but any Indian, in the boundaries of the Creek reservation can no longer be prosecuted by the state of Oklahoma,” said Rosyter. The Creek Nation jurisdiction includes Hughes, McIntosh, Okfuskee, Okmulgee, Wagoner, and Creek counties and portions of Tulsa, Mayes, Seminole, and Rogers counties. Muscogee (Creek) Nation Principal Chief James Floyd celebrated the court’s decision. “Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country,” Floyd said. “This decision affirms the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.” Murphy first raised the jurisdictional issue in his second application for state post-conviction relief in 2004 after losing prior court challenges to his conviction and sentence, including one that claimed he should not be executed because he is intellectually disabled.
Mark White (official portrait, pictured), a former governor and attorney general of Texas who became an outspoken critic of the death penalty, died on August 5 at the age of 77. Mr. White served as governor from 1983 to 1987, during which time he oversaw 19 executions. In an unsuccessful comeback bid in 1990, a campaign ad touted his strong support for the death penalty, featuring photos of the men executed during his tenure as governor and declaring, "Only a governor can make executions happen. I did and I will." Over time, however, his views changed and he became an advocate for the wrongfully condemned. In May 2014, White published a reflective op-ed in Politico, in which he declared that the administration of the death penalty is egregiously flawed. Citing the botched April 2014 execution of Clayton Lockett in Oklahoma, White wrote that the death penalty lends itself to mistakes and abuse. Lockett died of a heart attack approximately 40 minutes after the state began administering an untested lethal-injection protocol. “As I’ve watched how the death penalty has been administered over the years," White wrote, "both in Texas and around the country, it has become increasingly clear to me that we just don’t do a good job at any phase of the process, from ensuring that capital trials are fair to the actual handling of executions themselves." White wrote that the death-penalty system is plagued by arbitrariness. "We now have incontrovertible evidence that America’s criminal justice system does a poor job of determining who deserves the death penalty,” he said, noting that 12 Texans had been among the many people released from death row after evidence of their innocence emerged. Since the publication of White's op-ed, that number has risen to 13. As a "recovering politician," White volunteered to work with reform groups and innocence organizations in an attempt to redress his concerns about the unfairness of the criminal justice system. In 2012, he lent his voice to the NAACP Legal Defense and Educational Fund's efforts to obtain a fair sentencing hearing for Duane Buck—who had been sentenced to death after a defense mental health expert, and then the prosecutor, told the jury that he posed an increase risk of violence to society because he is black—narrating the video, A Broken Promise in Texas: Race, the Death Penalty, and the Duane Buck Case. He also served as the long-time co-chair of The Constitution Project's Death Penalty Committee, on which he worked with other former prosecutors, governors, and corrections officials to advance bi-partisan efforts at death-penalty reform.
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.