Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."
Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."
Fewer than half of Americans now believe the death penalty is fairly applied in the United States, according to the 2018 annual Gallup crime poll of U.S. adults, conducted October 1-10. The 49% of Americans who said they believed the death penalty was "applied fairly" was the lowest Gallup has ever recorded since it first included the question in its crime poll in 2000. The percentage of U.S. adults who said they believe the death penalty is unfairly applied rose to 45%, the highest since Gallup began asking the question, and the four-percentage-point difference between the two responses was the smallest in the history of Gallup's polling.
The poll also found that, even as the number of new death sentences are near historic lows, the percentage of Americans saying that the death penalty is imposed too often continued to rise and the percentage saying it is not imposed enough continued to decline. 57% of U.S. adults said the death penalty was imposed either "too often" (29%) or "about the right amount" (28%). In 2010, just 18% said the death penalty was imposed too often. While a plurality of 37% said the death penalty was not imposed enough, that figure was down 16% from the 53% level who in 2005 said it was not imposed enough. Gallup analyst Justin McCarthy wrote that "as executions in the U.S. have decreased along with the generally sinking crime rate, Americans have become more likely to say capital punishment is unfairly applied and that it is imposed too frequently."
Gallup measured overall support for capital punishment at 56%, which McCarthy described as "similar to last year's 55%." 2017, he said, "marked the lowest level of support for the practice since 1972." He said "support for capital punishment ... has been trending downward since peaking at 80% in the mid-1990s during a high point in the violent crime rate." The poll measured opposition to the death penalty at 41%, the same as last year's 45-year high. A national Pew Reseach Center poll released in June 2018 reported support for the death penalty at 54% and opposition at 39%. A 2017 study reported that murders in the 37 states that authorized the death penalty in 1994 declined by 35.4% between then and 2014, but that death sentences declined by 76.5%—more than double that rate—over the same time frame.
The Texas Court of Criminal Appeals on October 19, 2018 stayed the execution of Kwame Rockwell (pictured), a severely mentally ill death-row prisoner suffering from schizophrenia, who had been scheduled to die on October 24. The court found that Rockwell had raised “substantial doubt that he is not competent to be executed” and reversed a ruling by the Tarrant County District Court that had rejected Rockwell’s competency claim without an evidentiary hearing and without providing funds for him to obtain a competency evaluation. The appeals court ordered the trial court to appoint “at least two mental-health experts” to evaluate Rockwell’s competency. On October 16, Rockwell’s lawyers had appealed the Tarrant County order arguing that the trial court had abused its discretion in rejecting his competency claim The appeal argued that Rockwell “does not understand he is to be executed,” “has no understanding that he was convicted of capital murder and sentenced to death,” and “does not comprehend that he has been incarcerated on death row since 2012 or even that he is presently incarcerated in a Texas prison.”
The U.S. Supreme Court ruled in Ford v. Wainwright (1986) that the Eighth Amendment prohibits the execution of prisoners who have become “insane”—which the Court defined as being “unaware of the punishment they are about to suffer and why they are to suffer it.” In 2007, in the Texas case of Panetti v. Quarterman, the Court explained that a prisoner whose delusions prevent him from having a “rational understanding” of these circumstances is incompetent to be executed. A neuropsychologist who examined Rockwell in July reported that Rockwell said he saw snakes and demons that were inside of him, appeared to be hearing voices, and, in response to a question about his name, said “my name is God.” The doctor’s affidavit said Rockwell “does not understand or appreciate where he is, the nature of his charges, why he is in prison, or the nature of his punishment.” Rockwell’s lawyers also presented the court with evidence of his significant family history of psychotic illness, including twelve family members across three generations of his family with mental illness diagnoses, and Rockwell’s own mental illness in childhood and as an adult. Citing prison records, the appeal states: “Rockwell has consistently experienced intense hallucinations and auditory delusions, despite spending the majority of his sentence on four or more antipsychotic medications concurrently. He is haunted by snakes and demons. No medications have been able to eliminate his hallucinations or delusions.”
The U.S. Supreme Court has never categorically excluded people with serious mental illness from being sentenced to death or executed. A 2014 poll found that Americans by a two-to-one margin oppose executing people with mental illness. Several states have recently considered, but not adopted, legislation to bar the death penalty for people with severe mental illnesses. Rockwell’s trial lawyer did not present to the jury mitigating evidence of Rockwell’s schizophrenia or his family’s history of psychotic mental illness. Nonetheless, the Texas state and federal courts denied Rockwell’s claim that he had been provided ineffective representation at sentencing. In an opinion piece for Pacific Standard written before the Texas Court of Appeals granted the stay, David M. Perry compared the courts’ treatment of Rockwell’s case with the recent stay of execution granted to fellow Texas prisoner Juan Segundo. Segundo was granted a stay so the Tarrant County court could reconsider his claim of intellectual disability after the Supreme Court had ruled that the standard Texas had previously applied unconstitutionally risked that some people with intellectual disability would still be executed. “America still doesn't have clear protections for people with severe mental illness,” Perry explains. “These two cases in Texas remind us of the unfortunate diagnostic limitations that protect only some people with disabilities from the death penalty.”
As Seminole County prosecutors seek the death penalty against Clemente Javier Aguirre-Jarquin a second time despite substantial evidence implicating another suspect, the Florida judge who initially sentenced Aguirre-Jarquin to death now says he should not be convicted. Retired Judge O.H. Eaton (pictured), who presided over Aguirre-Jarquin’s double-murder trial in 2006, said he now believes that the case is a “poster child” for the flaws in the death penalty system. “The evidence I heard during the trial [in 2006] substantiated the verdict,” Eaton told the Orlando Sentinel. “The evidence I’ve heard now does not. ... If I knew then what I know now, I probably would have ordered the jury’s verdict overturned.”
Aguirre-Jarquin, an undocumented Honduran immigrant, was convicted of murdering his next-door neighbors, Cheryl Williams and her mother Carol Bareis, who were stabbed more than 130 times. Eaton imposed death sentences for both murders, based on non-unanimous 7-5 and 9-3 jury recommendations for death. Aguirre-Jarquin’s post-conviction lawyers later discovered that the mentally ill daughter and granddaughter of the victims, Samantha Williams—who had provided eyewitness testimony against Aguirre-Jarquin—had confessed to at least five different people that she had killed her relatives. She told one person: “I’m crazy, I’m evil and I killed my grandmother and my mother.” DNA results from blood evidence at the crime scene also implicated Williams. The Innocence Project, which assisted in Aguirre-Jarquin’s post-conviction representation, found that “[n]one of the DNA found on the 84 items that were tested matched Aguirre,” but was a match to Williams and the two victims. Eight bloodstains from Williams were found in four different rooms, each, the Innocence Project said, ”inches away from the victims’ blood." Based on this evidence, the Florida Supreme Court in 2016 unanimously overturned Aguirre-Jarquin's conviction. Seminole County prosecutors nonetheless decided to retry Aguirre-Jarquin, simultaneously arguing that Williams’s mental health problems make her confessions unreliable, but relying upon her testimony against Aguirre-Jarquin in his 2006 trial. They also argue that Aguirre-Jarquin—who says he went to his neighbors’ home to get beer, found their bodies, and tried to revive them—attempted to hide clothing with the victims’ blood on it, and did not call police after discovering his neighbors had been killed. Aguirre-Jarquin said he did not call the police because he feared deportation because of his undocumented status.
Florida has more death-row exonerations than any other state, with 27. Ninety percent of those exonerations came in cases in which one or more jurors had recommended a life sentence.
"Has the death penalty evolved into an anachronism?" asked a panel at the August 2, 2018 American Bar Association Annual Meeting in Chicago. Moderator Ronald Tabak, chair of the ABA Death Penalty Committee, and panelists Cardinal Blase J. Cupich of the Archdiocese of Chicago; Karen Gottlieb, co-director of the Florida Center for Capital Representation; Meredith Martin Rountree, senior lecturer at the Northwestern Pritzker School of Law; and Robert Dunham, executive director of the Death Penalty Information Center sought to answer that question through a discussion of the last forty years of American death-penalty history and the evolution of the Catholic Church's moral teachings on the subject. The panelists' consensus: the death sentences imposed upon many of the death-row prisoners executed in the past would be unconstitutional today, and most of the prisoners now being executed would not be sentenced to death if they were tried today.
The panel serendipitously took place on the same day that Pope Francis announced that the Catholic Church had formally revised its Catechism to deem the death penalty "inadmissible." Cardinal Cupich described the evolution of the Catholic Church's teachings on capital punishment, with an emerging focus on the concept of the dignity of human life. "Our assertion that the value of a human life does not depend upon an individual’s quality of life or age or moral worth must apply in all cases," he said. "For if we protect the sanctity of life for the least worthy among us, we surely witness to the need to protect the lives of those who are the most innocent, and most vulnerable." Karen Gottlieb highlighted how accidents of timing can result in unconstitutional executions, using Florida as an example of how numerous defendants with valid constitutional claims have been executed before courts issue rulings that would have barred their execution and how recent court rulings will permit the execution of more than 150 death-row prisoners who the state court acknowledges were sentenced under unconstitutional procedures. Meredith Martin Rountree discussed how American death-penalty law has evolved to exempt youthful offenders and individuals with intellectual disability and provided examples of current death-penalty practices—including the execution of offenders aged 18-21 and of people with severe mental illness—that could likely be banned in the future. Robert Dunham explained the "sea change in America’s attitudes about capital punishment" over the past twenty-five years and the reasons behind the accompanying broad nationwide decline in death-penalty usage over that period. He provided examples of more than 250 people who have been executed despite constitutional violations that would have invalidated their death sentences today and the estimated hundreds of others who were unconstitutionally sentenced to death but executed nevertheless because of procedural technicalities that prevented federal courts from enforcing constitutional protections in those cases.
A transcript of the proceedings, with updates from the panelists, was released by the ABA's Section of Civil Rights and Social Justice in late September 2018 and recently posted on the DPIC website.
Most of the 142 prisoners on North Carolina’s death row were convicted under obsolete and outdated death-penalty laws and would not have been sentenced to death if tried today, according to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense organization, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that nearly three-quarters of the prisoners on the nation’s sixth-largest death row were tried and sentenced before the state enacted significant reforms in prosecution, defense, and trial practices. “[I]f these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, the Center’s executive director.
Seventy-three percent of the men and women on North Carolina’s death row (103 prisoners) were tried and sentenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required prosecutors to pursue the death penalty in every aggravated murder case, irrespective of reasons that might call for mercy, and created a statewide office to represent indigent defendants in capital trials and appeals. North Carolina was the only state in the country that denied prosecutors the discretion to decide when to seek the death penalty, and as a result, there were more than fifty capital trials in the state each year, including cases involving defendants who were seriously mentally ill or intellectually disabled or were comparatively minor participants in a murder. Capital trials fell to an average of sixteen per year in the decade following the change. The creation of the capital defender office that same year dramatically improved the quality of representation, and further reduced the number of cases in which death verdicts were returned. Since then, North Carolina has enacted additional reforms aimed at ensuring fairer trials in capital cases. In October 2004, the state became the first in the country to require prosecutors to make all witness files, police reports, other investigative records, and physical evidence available to capital defendants prior to trial. In 2008, it adopted a series of eyewitness identification and interrogation protocols designed to prevent mistaken identifications and false or coerced confessions.
The report states that during the 1990s, before the reforms were enacted, “courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.” “Today,” Engel said, “we are living in a different world .... Public support for the death penalty is at a 50-year low, and North Carolina has stopped executing people. Juries now see life without parole as a harsh and adequate punishment for the worst crimes.” That, however, has produced its own historical inequities. In terms of moral culpability, Engel said, the defendants facing trial in 1995 and 2015 “are equal. And yet, one of them is being subjected to execution and other is not and that is an unfairness that as a fair society, we can not tolerate.”
A Nebraska county has raised property taxes on its residents and asked the state legislature for a bailout to help pay a $28.1 million civil judgment it owes to six men and women wrongly convicted of rape and murder after having been threatened with the death penalty. The so-called “Beatrice Six” (pictured) successfully sued Gage County for official misconduct that led to their wrongful convictions in the 1985 rape and murder of Helen Wilson. The large damages award exceeds Gage County's entire annual budget by $1 million. This year, Gage County Supervisors passed a property tax increase of 11.76 cents per $100 of valuation—the maximum increase allowed without putting the issue to voters. The tax increase is expected to generate about $3.8 million next year, but county leaders worry about its impact on residents and have announced plans to ask lawmakers and Governor Pete Ricketts for state funding or a loan to help pay the civil judgment. Greg Lauby, a former attorney who organized residents to seek solutions to the problem, said, “If we continue on the path we’re on with no assistance from the state, it will drive at least some farmers to bankruptcy. We have homeowners who are struggling to put food on their table and clothe their children, and that’s an amount that will make a difference.”
Five of the Beatrice Six exonerees—James Dean, Kathy Gonzalez, Debra Shelden, Ada JoAnn Taylor, and Tom Winslow—agreed to plea bargains or pled no contest after prosecutors threatened them with the death penalty. A sixth, Joseph E. White, maintained his innocence, but was convicted at trial based on false testimony about his alleged involvement in the crime. The six were exonerated by DNA evidence in 2008 after spending a combined 70 years in prison. The damages were awarded by a federal jury in 2016, just months before Nebraska voters passed a referendum to overturn the legislature's 2015 abolition of the death penalty and reinstate capital punishment. The county is responsible for the payment because prosecutors are immune from liability for wrongful convictions, and the sheriff involved in the case died in 2012. State Senator Ernie Chambers—one of the leaders of the death-penalty repeal efforts—said he opposes a state bailout. “This was strictly a county matter,” Chambers said. “They made their bed, now they have to sleep in it.” He added that, despite widespread coverage of the exonerations, Gage County voters overwhelmingly supported the reinstatement of the death penalty in 2016. “They haven’t learned a thing,” he said. Ultimately, as the McCook (Nebraska) Gazette wrote in an October 8, 2018 editorial, “[t]he Beatrice Six case and others like it spotlight the need to elect ethical and competent sheriffs and county attorneys and hold them accountable.”
Finding that the death penalty "is imposed in an arbitrary and racially biased manner," a unanimous Washington Supreme Court has struck down the state's capital-punishment statute as violating Washington's state constitutional prohibition against "cruel punishment." The court's ruling, authored by Chief Justice Mary E. Fairhurst and issued on October 11, 2018, declared: "The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution." The decision also converted the sentences of all eight people on the state's death row (pictured) to life imprisonment without possibility of release. The court's action makes Washington the twentieth U.S. state to have judicially or legislatively abolished the death penalty, and the eighth to have done so this century. Governor Jay Inslee, who imposed a moratorium on all executions in 2014, hailed the ruling, saying, "Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. ... This is a hugely important moment in our pursuit for equal and fair application of justice.”
The court issued the ruling in the case of Allen Gregory (pictured, bottom row, second from the right), an African-American man sentenced to death for the rape and murder of a white woman. In declaring the death penalty unconstitutional, the court cited recent research that found Washington juries were more than three times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. "Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance," the opinion stated. The opinion also cited "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as systemic constitutional flaws supporting the court's decision.
Washington has not carried out an execution since 2010. King County Prosecutor Dan Satterberg said that the court's ruling had finally brought to an end "Washington's four-decade experiment with the death penalty." Satterberg, a Republican, who with Democratic Attorney General Bob Ferguson supported bipartisan legislation to abolish Washington's death penalty, said "I think the criminal justice system will be stronger without capital punishment." The abolition bill, which was the subject of legislative hearings during the 2018 state legislative session, passed the Washington Senate and the House judiciary committee, but did not receive a vote in the full House.
On World Day Against the Death Penalty, Malaysia Announces Abolition Plan, European Union Reaffirms Abolitionist StancePosted: October 11, 2018
Marking World Day Against the Death Penalty, the government of Malaysia on October 10, 2018 announced its intention to abolish capital punishment in the Muslim nation of 30 million people. A continent away, the Council of Europe and the European Union issued a joint declaration reaffirming Europe's "strong opposition to capital punishment in all circumstances." The European government organizations also urged their members to implement measures to prevent trade in goods that could be used to carry out executions. As worldwide abolitionist organizations marked the occasion to highlight the living conditions of prisoners on death row, Malaysian officials announced that the country plans to end its use of the death penalty in its entirety. "All death penalty will be abolished. Full stop," said Law Minister Datuk Liew Vui Keong. He said the measure has been approved by the cabinet to be considered during the next Parliamentary session, which begins on October 15. Communications Minister Gobind Singh Deo told the Associated Press, "This is part of our election pledge and also in line with the move away from capital punishment in the rest of the world." Malaysia currently holds about 1,200 people on death row, and mandates capital punishment for crimes including murder, drug trafficking, kidnapping, and terrorism. In their joint statement, the Council of Europe and the European Union called the death penalty "an affront to human dignity" that "constitutes cruel, inhuman and degrading treatment and is contrary to the right to life. The death penalty has no established deterrent effect and it makes judicial errors irreversible." A country must have abolished capital punishment as a condition of membership in the European government organizations, and the statement urged Belarus—the only European country that still uses the death penalty—to impose a moratorium on the death penalty "as a decisive step towards aligning the country with pan-European standards." The statement also called on member states to "continue taking effective measures to prevent their involvement, however indirect, in the use of the death penalty by third countries. .... In this context," the statement said, "the Council of Europe and the EU will continue promoting the 'Global Alliance to end trade in goods used for capital punishment and torture'." Europe's trade stance has directly affected executions in the United States, as European countries have blocked the export of lethal-injection drugs to the United States.
Two Texas prisoners took steps away from death row as state courts ruled in their favor on issues involving false or faulty scientific evidence and argument. On October 5, 2018, the Texas Court of Criminal Appeals (CCA) granted a stay of execution to Juan Segundo (pictured, left), directing a Tarrant County trial court to reconsider a claim of intellectual disability that the courts had previously rejected based on an unconstitutional, unscientific standard for measuring his functioning. Four days later, an El Paso trial judge found that prosecutors had “presented false and misleading evidence and argument” concerning the cause of death of a 19-month-old whom Rigoberto “Robert” Avila (pictured, right) had been convicted of killing, and recommended that the CCA grant Avila a new trial.
Texas had been set to execute Segundo on October 10. Segundo’s lawyers had long argued that he is intellectually disabled and therefore exempt from execution under the U.S. Supreme Court’s 2002 ruling in Atkins v. Virginia. However, the Texas courts had dismissed that claim, relying on a series of nonclinical factors—some based on the fictional character Lennie Smalls from Of Mice and Men—to say that Segundo was not intellectually disabled under Texas law. In 2017, in the case of Moore v. Texas, the U.S. Supreme Court ruled that intellectual disability determinations must be “informed by the medical community’s diagnostic framework.” The Court struck down Texas’s approach, calling it an “outlier” that created “an unacceptable risk that persons with intellectual disability will be executed.” In Segundo’s case, the CCA wrote, “[i]n light of the Moore decision and the facts presented in applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court.”
The CCA stayed Avila’s January 2014 execution based on a new law giving prisoners access to the courts to litigate new evidence that their convictions had been based on false or misleading forensic evidence. His was one of the first cases sent back to a lower court for reconsideration under the 2013 junk-science law. In his 2001 trial, prosecutors argued that Avila had killed his girlfriend’s infant son. “There’s no other way the kid could have died,” they told the jury. New evidence showed, however, that the infant could have died from injuries caused by his four-year-old brother. Judge Annabell Perez wrote that this new evidence “probably would have led jurors to harbor reasonable doubt about [Avila’s] guilt” if it had been available at trial. In a prepared statement, Avila’s lawyers wrote: “The new scientific evidence creates a compelling case for Mr. Avila’s innocence, and a judge has now found that the verdict against him rests on false and misleading testimony. After spending 17 years on death row—and facing four serious execution dates—for a crime he did not commit, Mr. Avila is anxious to present the reliable scientific evidence to a jury.”