The nation's death rows continue to shrink more rapidly than new defendants are being sentenced to death, according to the Bureau of Justice Statistics (BJS) statistical brief, "Capital Punishment, 2016," released April 30, 2018. (Click image to enlarge.) The statistical brief, which analyzes information on those under sentence of death in the United States as of December 31, 2016, contains official government figures documenting continuing declines in executions, new death sentences, and death-row populations across the U.S. BJS reports that 2,814 prisoners remained under sentence of death in 32 states and the federal system at the end of 2016, representing a decrease of 58 prisoners and a 2% decline in the U.S. death-row population in 2016. It was the sixteenth consecutive annual decrease in the number of prisoners under sentence of death in the U.S., down 787 (22%) since the year-end high of 3,601 on December 31, 2000. BJS tracks the status of death-row prisoners from the date they are admitted to a state or federal correctional facility on capital charges, not the date they were actually sentenced. According to BJS, 32 prisoners were admitted to state or federal death rows in 2016. (DPIC uses a slightly different counting method that reported 31 new death sentences imposed in 2016.) The BJS data indicates that the decline in the size of death row is attributable to factors other than execution. BJS reports that 70 prisoners were removed from death row in 2016 by means other than execution, such as exoneration, the reversal of a conviction or death sentence, commutation, or death by other causes, as compared with 20 who were executed. Nineteen prisoners were reported to have died on death rows of natural causes; 11 prisoners were removed from Connecticut's death row when its state supreme court declared its death-penalty statute unconstitutional; and 40 were released from death rows when their convictions and/or death sentences were overturned in the courts.
As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."
NEW PODCAST—Culture of Conviction: Brian Stolarz on How Houston Prosecutors Convicted His Innocent ClientPosted: May 4, 2018
In 2005, Alfred Dewayne Brown (pictured left) was wrongly convicted and sentenced to death for the murder of a Houston, Texas police officer based on false testimony Harris County prosecutors obtained through coercion and threats. After spending a decade on death row for a crime he did not commit, Brown was finally released with the help of his attorney Brian Stolarz (pictured right), who is the guest on DPIC's latest podcast and author of Grace and Justice on Death Row, a book about Brown's case. Stolarz, who represented Brown in post-conviction proceedings, tells the story of his "decade-plus long journey to help out this one man." In the discussion, Stolarz describes how he and his team realized upon investigation that every witness had been "pressured and frightened" by the prosecutor—who used tactics such as threatening to charge witnesses with crimes—in order to secure Brown's conviction. Stolarz calls this Harris County's "culture of conviction." Brown's girlfriend, Erica Dockery, who had initially testified before the grand jury that Brown was at her apartment at the time of the crime, became a critical witness against Brown. As Stolarz explains, Dockery's choice to "abandon the truth," commit perjury, and testify against Brown came only after the prosecutor brought a baseless perjury charge against her for her truthful grand jury testimony and jailed her with a bond so high she couldn't pay it. In what Stolarz describes as "luck," the retired case detective found a box from the case while "spring cleaning his garage," and the box contained phone records that supported Dockery's initial testimony and consequently Brown's alibi. This evidence, along with other witness recantations, helped win Brown's release in June 2015. Although Brown has been free for almost three years, Stolarz explains that his fight for justice is still ongoing, as he seeks compensation for his unjust conviction. Before Brown can be compensated under Texas state law, the District Attorney must sign a formal declaration finding him innocent and prosecutors had opposed such a declaration. The podcast was recorded in April 2018, several weeks after recent revelations that Dan Rizzo, the assistant district attorney who prosecuted Brown, had received an email informing him that the phone records proved Dockery was telling the truth about Brown's alibi before he charged her with perjury and prosecuted Brown for murder based on false testimony. Since the time of podcast recording, the current Harris County District Attorney, Kim Ogg, has appointed a special prosecutor to investigate Brown's innocence. Ogg said the recent discovery of the email showing Rizzo knew years before trial that Brown's alibi checked out "brought clarity to a very hotly contested allegation as to whether or not [suppressing that evidence from the defense] was intentionally done, whether it was done to obtain a guilty verdict at any cost." Ogg said she believed the email "tended to show Brown's innocence, and not just his lack of guilt."
Georgia Parole Board Grants Stay to Robert Earl Butts, Jr. to Further Consider His Clemency Request [UPDATE: STAY LIFTED]Posted: May 3, 2018
The Georgia State Board of Pardons and Paroles has halted the execution of Robert Earl Butts, Jr. (pictured), less than 24 hours before the state intended to put him to death. On May 2, the Board stayed Butts's execution for up to 90 days, saying it needed additional time "to examine the substance of the claims offered in support of the application." In a news release accompanying the issuance of the stay, the Board said it had received a "considerable amount of additional information ... regarding the case" and, "because the Board understands the importance and seriousness of its authority and responsibility," it issued a stay. Board spokesperson Steve Hayes said the Board "will continue consideration of the case and at a later date make a final decision" and that decision "could come during the stay or at the end of the 90-days.” The Board has the power to lift the stay, allowing the execution to proceed, or grant clemency to Butts, commuting his sentence to life without parole. Because Georgia death warrants remain active for a full week, Butts remains at risk of imminent execution if the Board lifts the stay on or before May 10. A new execution warrant would be required to execute Butts if the Board denies his commutation request and lifts the stay after that date. Butts's clemency petition claims that he did not shoot Donovan Corey Parks, the off-duty correctional officer killed during a carjacking, but that his co-defendant, Marion Wilson, was the triggerman. The application includes a sworn statement from Horace May—a jailhouse informant who had testified at trial that Butts had confessed to him—saying that he had fabricated the confession after Wilson had asked him to testify against Butts. The petition also says the jury was given unsupported, false, and inflammatory information that Wilson and Butts were gang members and the killing was gang-related. Wilson is also sentenced to death, and currently has an appeal pending before the U.S. Court of Appeals for the 11th Circuit. Butts also argued that his personal circumstances and his remorse for his involvement in the killing provided "compelling grounds for mercy." Butts was just 18 at the time of the crime and, the petition says, endured "profound childhood neglect" from parents who "left him to care for his younger siblings while they roamed the streets of Milledgeville, each in the grip of mental illness, drug addiction or both." In addition, the clemency petition argues that execution is a disproportionately severe punishment in light of the unwillingness of juries to impose the death penalty today in similar cases. In the past decade, no Georgia jury has sentenced any defendant to death in a case like this that involved a single victim and only one aggravating circumstance. [UPDATE: The Board lifted the stay late in the day on May 3, and the state executed Butts on May 4.]
In an April 27 editorial, the Los Angeles Times said the death penalty should come to an end and the recent exoneration of California death-row prisoner Vicente Benavides Figueroa illustrates why. Benavides — an intellectually disabled Mexican national who was working as a seasonal farm worker — spent more than 25 years on death row after being wrongfully convicted and sentenced to death on charges of raping, sodomizing, and murdering his girlfriend's 21-month-old daughter. His conviction rested on extensive false forensic testimony provided by prosecution medical witnesses who had been given incomplete hospital records and who erroneously testified that the child had been sexually assaulted. One California Supreme Court justice described that testimony as “among the most hair-raising false evidence that I’ve encountered in all the time that I’ve been looking at criminal cases.” The Times called Benavides's conviction "an egregious miscarriage of justice" and said "[h]is exoneration serves as a reminder of what ought to be abundantly clear by now: that despite jury trials, appellate reconsideration and years of motions and counter-motions, the justice system is not infallible, and it is possible (or perhaps inevitable) that innocent people will end up facing execution at the hands of the state." Benavides's case was prosecuted in Kern County during the administration of long-time District Attorney Ed Jagels. Elected multiple times to head the California District Attorneys Association, Jagels successfully pushed to remove three justices from the California Supreme Court whom he claimed were anti-death-penalty. His official Web page as district attorney touted that Kern had the highest per-capita imprisonment rate of any county in state, and as of January 1, 2013, the county had more people on its death row than were sentenced to death in more than 99% of U.S. counties. The county also has the highest per capita exoneration rate in the state. Benavides is reportedly the 26th innocent person wrongly convicted by Kern County prosecutors, most of whom were wrongly convicted as a result of official misconduct. As of March 2015, 22 of the 24 Kern County exonerations listed in the National Registry of Exonerations had involved official misconduct by police, prosecutors, or other government officials. Benavides's exoneration, the Times said, is also a reminder "of the dangers inherent in California's efforts to speed up the calendar for death penalty appeals under Proposition 66 .... Moving more quickly to execute convicted death row inmates increases the likelihood that due process will be given short shrift and the innocent will be put to death." The records that showed 21-month-old Consuelo Verdugo had not been sexually assaulted — and that cast doubt on whether she had been murdered at all — were not discovered until 7 years after trial. The one year that Proposition 66 gives appellate lawyers to investigate cases and file appeals makes it less likely that they will discover such evidence "and thus more likely that innocent people will be put to death." Washington Post columnist Radley Balko put it more starkly: "if Prop 66 had been in place when Mr. Benavides was convicted, he’d almost certainly be dead. He’d never have lived to see his exoneration." Balko notes that "[t]his problem isn’t just limited to California. Even as we learn more about the extent of wrongful convictions, prosecutor misconduct and misuse of forensic evidence, states such as Texas, Alabama and Florida have also moved toward limiting appeals and speeding up executions." He says "[i]t's almost as if some lawmakers and law enforcement officials think that the problem with wrongful convictions isn’t that there are too many of them, but that they’re bad PR for the law-and-order cause. And that the best way to make them go away isn’t to fix the problems that allowed them to happen, but to execute people before we ever get the chance to learn that they’re innocent." But the problems, the Times editors said, may be beyond repair. "The unfixable problem with the death penalty is that mistakes get made, witnesses lie, confessions get coerced — all factors that can lead to false convictions. It is abjectly immoral to speed things up by limiting due process. The better solution," the editors conclude, "is to get rid of the death penalty altogether."
The U.S. Supreme Court has granted review in the case of Missouri death-row prisoner Russell Bucklew, who has argued that the severe form of a rare congenital disorder from which he suffers makes it unconstitutionally cruel for him to be executed by lethal injection. Bucklew has an extreme form of cavernous hemangioma, a malformation of his blood vessels that causes blood-filled tumors to grow in his head, neck, and throat. The tumors, he has argued, are likely to rupture during the lethal-injection process, resulting in an excruciatingly painful execution during which he would choke on his own blood. Bucklew proposed as an alternative that the state execute him using nitrogen gas. Missouri has twice set execution dates for Bucklew while he has been challenging its execution method—once in May 2014 and again in March 2018. In both instances, the Supreme Court intervened, issuing stays of execution that permitted further court proceedings in his case. The first stay permitted the U.S. Court of Appeals for the Eighth Circuit to hear and decide Bucklew's appeal from a Missouri federal district court ruling that had dismissed his lethal-injection challenge without an evidentiary hearing. After considering the appeal, the Eighth Circuit reversed the district court decision and ruled that Bucklew was entitled to move forward with his lawsuit. In an attempt to develop facts relating to how risky his execution would be, Bucklew filed a series of discovery requests—each opposed by Missouri prosecutors—seeking information about the qualifications of the execution team members. The court denied each of Bucklew's requests. The district court accepted Bucklew's argument that lethal injection carried a substantial risk that he would choke and be unable to breathe for up to four minutes before dying. Nonethless, in June 2017, it again dismissed his case, again without holding a trial, saying that Bucklew had not shown that nitrogen gas would significantly reduce his suffering during the execution. Bucklew appealed, but while the appeal was pending, the state obtained a second execution date, this time for March 20, 2018. On March 6, a split appeals court panel voted 2-1 to affirm the lower court. Hours before the execution was to be carried out, the Supreme Court issued a second stay of execution to give itself more time to decide whether to hear Bucklew's case. On April 30, the Court accepted the case for review. In addition to the questions Bucklew had raised, the Court ordered the parties to address whether Bucklew had met his burden under the Court's 2015 lethal-injection decision in Glossip v. Gross "to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution." The Glossip decision requires a prisoner who challenges the constitutionality of a method of execution to show not only that the state's method of execution will create a substantial risk of severe pain, but also that a feasible and readily available alternative exists that significantly reduces that risk. This is the first time that the Supreme Court has granted review in a case involving lethal-injection procedures since it decided Glossip.
New Hampshire Legislature Passes Death-Penalty Repeal Bill, But More Votes Needed to Override Threatened VetoPosted: April 30, 2018
The New Hampshire state legislature has voted to repeal the state’s death penalty, but proponents of the bill currently lack the votes necessary to overcome a threatened gubernatorial veto. On April 26, the New Hampshire House of Representatives voted 223-116 to pass Senate Bill 593, with 145 Democrats, 77 Republicans, and one Libertarian supporting repeal. The state senate previously approved the measure 14-10 on March 15, with support from eight Democrats and six Republicans. “What you’ve seen this year is an expression of bipartisan support for repeal,” said State Rep. Renny Cushing, a co-sponsor of the bill and a leading anti-death penalty advocate. “New Hampshire is ready to abolish the death penalty.” Governor Chris Sununu, a Republican, has said he will veto the bill. In a statement issued in February and repeated after the vote, Sununu said he “stand[s] with crime victims, members of the law enforcement community, and advocates for justice in opposing a repeal of the death penalty.” Characterizing “strengthen[ing] laws for crime victims and their families” as a “top priority” of his administration, Sununu said repeal “sends us in exactly the wrong direction ... There is no doubt that the most heinous crimes warrant the death penalty.” Rep. Richard O’Leary, a former deputy police chief in Manchester, said he voted for the bill because “I don’t believe we have the right under any circumstances, except immediate self-defense, to take a life. Once the criminal has been subdued, arrested, segregated from society and rendered defenseless, I cannot see where the state has any compelling interest in executing him. It’s simply wrong,” he said. Cushing, who has lost both his father and his brother-in-law to murder in unrelated incidents, said the bill’s supporters ‘‘are very close” to getting the votes necessary to override the anticipated veto. ‘‘New Hampshire values civil liberties, it values human rights,” Cushing said. “New Hampshire can live without the death penalty.” New Hampshire has come close to abolishing capital punishment several times. Both houses of the legislature voted to repeal the death penalty in 2000, but Governor Jeanne Shaheen, a Democrat, vetoed the bill. The state House also passed a repeal bill in 2014, which Gov. Maggie Hassan said she would sign. But the bill failed on a tie vote of 12-12 in the state senate.
From Slavery to the Death Penalty: New Museum and Memorial for Peace and Justice Open in Montgomery, AlabamaPosted: April 27, 2018
On April 26, 2018, the Equal Justice Initiative (EJI) opened the Memorial for Peace and Justice and its accompanying Legacy Museum, which tell the stories of the more than 4,000 men, women, and children killed by racial terror lynchings in the century following the Civil War, and trace the connections between slavery, segregation, capital punishment, and mass incarceration. The opening drew thousands of visitors from across the country, theatrical headliners, and a host of civil rights legends—including Congressman John Lewis and the surviving plaintiffs and lawyer who brought the lawsuit that ended segregated seating on public buses. The memorial and museum arose out of the criminal defense work of the Equal Justice Initiative and its founder, Bryan Stevenson, first representing indigent prisoners on Alabama’s death row and later expanding to fight juvenile life sentences and other manifestations of mass incarceration. Stevenson said, “It really springs from that experience of representing people in courts and beginning to see the limits of how committed our courts are to eradicating discrimination and bias. I want to get to the point where we experience something more like freedom. … I don’t think we are going to get there until we create a new consciousness about our history.” EJI’s research on lynchings, including the 2015 report, Lynching in America: Confronting the Legacy of Racial Terror, shows a clear link between lynchings and the death penalty. Counties and regions that today carry out the most executions are the same places in which lynchings were most likely to take place, and the ongoing racial bias in the application of the death penalty reflects the legacy of racial terror lynchings. “[I] believe that capital punishment is the stepchild of lynching,” Stevenson said. “It was disproportionately used against people of color; it still continues to be shaped primarily by race.” As America’s global allies pressured the country to end lynchings after World War II, Stevens said, “lynchings moved inside. We still executed mostly black people after proceedings that were unreliable and unfair. We promised ‘swift justice,’ which was intended to be the same thing as lynching without the spectacle, without the optic, without the mob.” Stevenson said he was motivated to create the memorial and museum because a discussion of the past is necessary to create a more just and equal society. “We haven’t created spaces in this country that tell the history of racial inequality, of slavery, of lynching, of segregation that motivate people to say, ‘Never again,’” he said.
DPIC Study Shows 97% of Prisoners Who Overturn Pennsylvania Death Sentences Are Not Resentenced to DeathPosted: April 26, 2018
In Pennsylvania, death-row prisoners whose convictions or death sentences are overturned in state or federal post-conviction appeals are almost never resentenced to death, a new Death Penalty Information Center study has revealed. Since Pennsylvania adopted its current death-penalty statute in September 1978, post-conviction courts have reversed prisoners' capital convictions or death sentences in 170 cases. Defendants have faced capital retrials or resentencings in 137 of those cases, and 133 times—in more than 97% of the cases—they received non-capital dispositions ranging from life without parole to exoneration. Only four prisoners whose death sentences were reversed in post-conviction proceedings remain on death row. Philadelphia cases accounted for more than half of the post-conviction reversals (86 cases) and 54% of the non-capital case dispositions (72 cases). DPIC reviewed all of the cases in which Pennsylvania death-row prisoners have won post-conviction relief. Contrary to the often-expressed perception that most death-penalty reversals occur in federal courts, state courts reversed twice as many Pennsylvania capital convictions or death sentences as did their federal counterparts. Pennsylvania death-row prisoners obtained state post-conviction relief from their convictions or death sentences—and, in some instances, both—in 116 cases. State courts granted 18 post-conviction petitioners new trials and vacated 108 death sentences. Of the vacated sentences, the state courts granted 91 new sentencing hearings, and declared prisoners constitutionally ineligible for the death penalty in 17 cases. Life sentences were imposed in fifteen cases as a result of a prisoner's intellectual disability and in two cases because the prisoner had been younger than age 18 at the time of the offense. Federal courts granted Pennsylvania capital habeas corpus petitioners relief from their convictions and/or death sentences in 58 cases, awarding new trials in 24 cases and new sentencing hearings in 44. Three death-row prisoners who were granted penalty-phase relief in state court later overturned their convictions in federal court. One prisoner who was granted a new penalty-phase trial by the federal courts also overturned his conviction after the case was remanded back to the state courts. The DPIC study found that 86% of the reversed death-penalty cases concluded with a non-capital resentencing to life without parole. Those included 89 cases resulting from sentencing pleas or prosecutorial decisions to drop the death penalty, 12 capital sentencing retrials that resulted in life sentences, and the 17 cases in which defendants were declared constitutionally ineligible to face the death penalty. Two formerly death-sentenced prisoners—Nicholas Yarris and Harold Wilson—were exonerated, and a third, Frederick Thomas, died on death row while Philadelphia prosecutors appealed a trial judges' ruling that new evidence presented in the post-conviction proceedings established that no jury would have convicted him. Thirteen prisoners—including several widely considered to be innocent—pled guilty or no contest to lesser murder charges and were sentenced to time served or to terms of years. Six have completed their sentences and two others have been released on parole. The DPIC study found that the odds were 33.25 to 1 against a prisoner who won post-conviction relief remaining on death row. Six defendants were resentenced to death, but two of those death sentences were later overturned and the defendant resentenced to life without parole. The remaining four death sentences are still on appeal. Calling Pennsylvania's death-penalty system "riddled with flaws, ...error prone, expensive, and anything but infallible," Govenor Tom Wolf in February 2015 imposed a moratorium on executions in the Commonwealth. The state has not carried out an execution since 1999.
Three powerful new documentaries that explore the modern death penalty in the United States are set to premiere this April. Oscar-winning actress Viola Davis and Julius Tennon are executive producers of The Last Defense, a new documentary series premiering for the first time at the 2018 Tribeca Film Festival on April 27. The seven-episode documentary series exposes flaws in the U.S. justice system through the personal narratives of death row prisoners Darlie Routier and Julius Jones, both whom maintain their innocence, and premieres June 12 on ABC. On April 30, PBS will air the television premiere of Jamie Meltzer's documentary True Conviction, which follows the detective agency started by Christopher Scott, the late Johnnie Lindsey, and Steven Phill—three wrongly convicted Dallas men who were exonerated after spending a combined 60 years in prison—as they work to attempt to free death-sentenced Max Soffar and other wrongly convicted prisoners. Barry Scheck and Peter Neufeld, co-founders and co-directors of the Innocence Project have hailed the film as "unprecedented" in its approach, "focusing on the experiences of a group of exonerees who are themselves learning to investigate" and "highlight[ing] the challenges and roadblocks of investigating and proving another man’s innocence." The film premiered at the 2017 Tribeca Film Festival and was awarded a Special Jury Mention in the Best Documentary Category. On April 11, the American University School of Communications premiered excerpts of another documentary film, In the Executioner's Shadow, produced by AU professors Maggie Burnette Stogner and Richard Stack. That documentary weaves the intersecting stories of Vicki and Syl Scheiber, whose daughter was murdered, Boston Marathon bombing survivor Karen Brassard, and former Virginia state executioner Jerry Givens, who had carried out 62 executions, as they grapple with moral and personal issues arising from their involvement in capital punishment. In a panel discussion moderated by the producers, Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, joined the film's protagonists in discussing those issues. Stack is a former public defender and author of two books on the death penalty Dead Wrong: Violence, Vengeance, and the Victims of Capital Punishment and Grave Injustice: Unearthing Wrongful Executions. He said he hopes the film will spark dialogue on the complex subject. "We've discovered through our various interviews that one side talks past the other. It's a mutual predicament. And we're trying to get people to talk to each other," Stack said. Following a screening of the first hour of the Julius Jones case in The Last Defense, the producers will lead a panel discussion with death-penalty lawyer Dale Baich.