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New Podcast: Emmy- and Oscar-Award Winning Director Edward Zwick on His New Film, Trial By Fire

Posted: May 17, 2019

In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his newmovie, Trial By Fire. The film, which Zwick co-produced and directed, tells the story of Cameron Todd Willingham, who was convicted and sentenced to death in 1992 for the deaths of his three children in a house fire that prosecutors wrongly claimed had been intentionally set. As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods. The trial prosecutor also withheld evidence that a jailhouse informant who claimed that Willingham had confessed to him had been provided favorable treatment in exchange for implicating Willingham.

Willingham’s case featured what Zwick called a “catalog” of problems: “it had the withholding of exculpatory evidence, it had junk science, it had jailhouse snitches who would testify in exchange for reduced sentences, [and] it had a piss-poor public defender.” In an interview with DPIC’s Managing Director, Anne Holsinger, Zwick describes why he decided to tell Willingham’s story, what he learned from the experience, and how he hopes the film will affect audiences. Trial By Fire opens on May 17, 2019.

Trial By Fire is largely based on an investigative article of the same name written by David Grann and published in The New Yorker in 2009. Zwick called Grann’s account of the case a “categorical denunciation of everything that was wrong with the prosecutions in death-penalty cases.” The movie focuses on the relationship between Willingham (Jack O’Connell) and his penpal, Elizabeth Gilbert (Laura Dern). Gilbert worked with the filmmakers and offered them access to her correspondence with Willingham. Zwick said he chose to portray that relationship because it was a “beautiful juxtaposition to the horrors of the case.” He expressed gratitude to Gilbert for sharing the letters, which he said showed the “internal workings and the value of a man’s life, so he was more than just a statistic.” He also said that the friendship between Willingham and Gilbert humanized the story and helped the film avoid being didactic. “People go to the movies because they want to invest in the characters and in the relationships. They don’t go to the movies to learn about issues, but that doesn’t say that they can’t have both.”

Zwick characterized Willingham’s story as embodying the systemic problems in the way the death penalty is carried out in the United States. “In a system that cannot be guaranteed to be infallible, if a single innocent person has been put to death, that more than justifies getting rid of the death penalty,” he said. Capital punishment, he said, is emblematic of the inequities in the criminal justice system at large: “The death penalty sits on top of the pyramid of charging and sentencing and trials, and that if it is so flawed and revealed to be unjust and if its absurdities can be so accepted, how then can we reform the rest of the system, before dealing with it?” The interview concluded with a discussion of the filmmaker’s hopes for how the audience will respond to the movie. “I know that it’s a Pollyanna-ish notion that a single film can do anything that affects policy itself. What it can do is add a set of images and a warm-bloodedness and a personal understanding of something that an audience might have only understood in more philosophical or political terms.” Storytelling can be part of cultural “paradigm shifts,” he said, noting that pop culture depictions of same-sex relationships helped shape public opinion on same-sex marriage. “Change happens," Zwick said, "but how it happens and when it happens, and the rate at which it happens is unpredictable, and all that one can do in any kind of activist cause is to keep your head down and keep doing the work that you do because you are committed to that change.”


Department of Justice Asserts That Food and Drug Administration ‘Lacks Jurisdiction’ Over Lethal-Injection Drugs

Posted: May 16, 2019

The U.S. Department of Justice (DOJ) has issued an advisory memorandum declaring that the Food and Drug Administration (FDA) “lacks jurisdiction” to regulate execution drugs, including enforcing federal laws that prohibit the import of such drugs from abroad. The memorandum, authored by Assistant Attorney General Steven A. Engel (pictured) for the Department’s Office of Legal Counsel, places the administration squarely in conflict with a 2012 federal district court order requiring the FDA to enforce federal laws barring the importation of unapproved or misbranded drugs or drugs that come from unregistered facilities. The ruling, which came in a case brought by death-row prisoners to force the agency to comply with federal law, was upheld by a federal appeals court in 2013, and the FDA is still permanently enjoined by the ruling from allowing the illegal importation of execution drugs.

The DOJ legal opinion — which is binding on federal agencies — is apparently a response to the FDA’s seizure and impoundment of lethal-injection drugs that prison officials in Texas and Arizona had attempted to import in 2015 for use in executions. After the drug seizure, the Texas Department of Criminal Justice sued the FDA, and in April 2017, the agency issued a final order refusing to release the drugs. The FDA’s order stated: “The [2012] court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug.” Several states have attempted to illegally import sodium thiopental, an anesthetic once commonly used in executions, after its U.S. manufacturer ceased production in 2009.

Engel’s memorandum bases the DOJ’s opinion on a U.S. Supreme Court case addressing whether the FDA can regulate tobacco products. In FDA v. Brown & Williamson Tobacco Corp. (2000), the Court found that the FDA could not regulate tobacco products because “they cannot be used safely for any therapeutic purpose,” but “they cannot be banned” because Congress had clearly intended for tobacco to be available. Engel wrote that the situations were analogous: “Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the [Federal Food, Drug, and Cosmetic Act of 1938] would effectively require their prohibition because they could hardly be found ‘safe and effective’ for such an intended use.”

Fordham University Law Professor Deborah Denno said the opinion “is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so,” but, according to The Washington Post, “The Justice Department’s opinion is unlikely to have any immediate effect … because the FDA is still operating under the 2012 injunction.” The Justice Department has not taken any steps to have the injunction lifted. As long as the injunction remains in place, the opinion represents only the views of the Department of Justice, and does not have the force of law. 


Death-Penalty Opinions Expose Deep Divisions on U.S. Supreme Court

Posted: May 15, 2019

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”


Alabama Prisoner Seeks Stay, Reprieve to Challenge the Death Penalty for 19-Year-Old Offenders

Posted: May 14, 2019

Facing a May 16, 2019 execution date, Alabama death-row prisoner Michael Brandon Samra (pictured) has asked the United States Supreme Court and Governor Kay Ivey to halt his execution and for the Court to consider the constitutionally of imposing the death penalty upon 19-year-old offenders. In a petition filed on April 27, Samra—a teenage offender with borderline intellectual functioning—asked the U.S. Supreme Court to reconsider the appropriate age cutoff for banning the execution of youthful offenders. He also has asked Ivey for a reprieve to permit courts to rule on the issue.

In 2005, the Supreme Court barred the execution of people for crimes committed before age 18. That decision, in Roper v. Simmons, extended the Court’s prior age prohibition on the application of the death penalty to offenders younger than age 16. Samra’s attorneys argue that new research in neuroscience shows that key areas of the adolescent brain continue to mature through a person’s early twenties. Although the question Samra’s lawyers formally presented to the Court is whether the Eighth Amendment “permit[s] the execution of youthful offenders who … were 19 years old at the time of their crime,” the petition urges the Court to forbid the execution of offenders younger than age 21. “Compared to adults, persons in their late teens and early 20’s [sic] are: (1) more likely to poorly assess risk, (2) more likely to engage in sensation-seeking, (3) less able to control their impulses and consider the consequences of their actions, (4) have underdeveloped basic cognitive abilities as compared to emotional abilities, (5) are more affected by peer pressure,” Samra’s petition explains. His attorneys wrote, “This Court’s Eighth Amendment jurisprudence should reflect the reality that a person’s neurological and psychological development does not suddenly stop on his 18th birthday.”

Samra’s petition to the high court cites a 2017 decision by a Kentucky trial court, which held that “the death penalty would be an unconstitutionally disproportionate punishment for crimes committed by individuals under 21 years of age.” That case is currently under appeal to the Kentucky Supreme Court and Samra’s attorneys have asked Governor Ivey to grant a reprieve until it is decided. “To prevent a miscarriage of justice and ensure that Alabama does not carry out an unconstitutional execution, Samra respectfully requests a reprieve until the Kentucky Supreme Court has ruled on the question that would determine whether Samra is categorically eligible for the death penalty,” Samra’s attorney wrote. The plea for a reprieve also notes that Samra was less involved in the planning and carrying out of the crime, compared to his co-defendant, Mark Duke. It says that Samra helped Duke kill Duke’s father, his father’s girlfriend, and her two daughters, but that Duke planned the killings and killed three of the four victims. Duke, who was 16 at the time of the crimes, was sentenced to death. However, his death sentence was overturned when the Supreme Court decided Roper in 2005.

If the Supreme Court and the governor allow Samra’s execution to proceed, it will be the sixth in the United States in 2019, and the second in Alabama. Tennessee has scheduled the execution of Donnie Edward Johnson for the same night, May 16. [UPDATE: The U.S. Supreme Court denied Samra's petition for review on May 14. Gov. Ivey denied his clemency application May 16 and he was executed that evening.]


Science Challenges Myth that Death Penalty Brings Victims’ Families Closure

Posted: May 13, 2019

Proponents of capital punishment have long argued for the death penalty on the grounds that it brings closure to family members of homicide victims. But science suggests that achieving closure through execution may be a myth, says family and child therapist Linda Lewis Griffith (pictured) in a May 6, 2019 column in the San Luis Obispo Tribune, and that capital punishment may actually make matters worse.

To underscore that point, Griffith cites studies in the Personality and Social Psychology Bulletin and the Journal of Personality and Social Psychology that found “subjects who were given the opportunity to vent their hostilities had higher levels of aggression and anger than those participants who did nothing at all” and “people who punish others in the hopes of making themselves feel better actually feel worse.” The death penalty, she says, “keeps victims involved in the tragedy for years, even decades, as multiple hearings, appeals and trials drag on.” As a result, family members “feel stuck in a time warp, being repeatedly re-traumatized by the legal system and accompanying media coverage.” In cases in which the death penalty is eventually carried out, “[e]xecutions do not offer emotional catharsis as many would suggest.” Instead, Griffith says, “executing perpetrators actually increased family members’ feelings of emptiness because it didn’t bring back their loved ones.”

A University of Minnesota study published in 2007 attempted to quantify the extent to which victims’ family members achieved closure as a result of capital punishment. The study found that only 2.5% of victims’ family members—roughly one in 40—reported achieving closure, while 20.1% said the execution did not help them heal. A 2012 study published in the Marquette Law Review compared the emotional well-being of survivors in Texas, a death penalty state, and Minnesota, a life without possibility of parole state. The study found that “victims in Minnesota experienced greater control over the sentencing process,” while the “drawn out, elusive, delayed, and unpredictable” capital appeals process in Texas “created ‘layers of injustice, powerlessness, and in some instances, despair’” for family members.

Given these studies, Griffin believes that life without possibility of parole offers “[a] more emotionally satisfying solution” for victims’ families than does the death penalty. “Instead of proceeding with archaic and inaccurate information, let’s consider the data and do what really works best” for victims’ families, she says.


Study Finds Louisiana Spends An Extra $15 Million Per Year on Death Penalty

Posted: May 10, 2019

A new study of Louisiana’s death penalty reports that the state’s capital punishment system costs taxpayers at least $15.6 million a year more than a system with life without parole as the maximum sentence. The study by retired New Orleans district Chief Judge Calvin Johnson (pictured, left) and Loyola Law Professor William Quigley (pictured, right), released on May 2, 2019, found that Louisiana has spent more than $200 million on its death-penalty system in the last 15 years, resulting in a single execution of a prisoner who gave up his appeals. The researchers projected that, for an offense committed after August 1, 2019, it would cost taxpayers more than a quarter billion dollars to keep in place its capital punishment system from the time of arrest to the time of an eventual execution.

For their study, Johnson and Quigley examined data compiled by the Louisiana Department of Corrections, the Louisiana Public Defender Board, and the Louisiana Legislative Fiscal Office to arrive at what the authors characterize as “a conservative estimate” of the system’s costs. “The actual costs may be significantly higher, as the costs do not include the prosecution or court costs spent on capital cases that ultimately did not go to trial as a capital case, or the costs of Louisiana Supreme Court review,” they said. Quigley summarized the study’s findings, saying, “Louisiana has spent over $200 million in the past 15 years, to operate a broken death penalty system in which 83% of the death sentences imposed at trial [that have completed appellate review] have been overturned. Louisiana has to decide whether it wants to spend more than $250 million dollars in the future, for a death penalty system that has resulted in more exonerations than executions over the last 15 years.”

Louisiana has executed only one person in the past 15 years, Gerald Bordelon in 2010. Bordelon dropped his appeals and “volunteered” for execution. In that same period, the state has exonerated five people: Dan L. Bright and Ryan Matthews in 2004, Damon Thibodeaux in 2012, Glenn Ford in 2014, and Rodricus Crawford in 2017. Dating back to 1976, when the U.S. Supreme Court struck down Louisiana’s then-mandatory death penalty, the state has sent 242 defendants to death row. Ten of those prisoners were subsequently exonerated — or 4.1% of every death sentence imposed. Police or prosecutorial misconduct played a major role in each of the wrongful capital convictions. The study reported that Louisiana has the nation’s highest per capita death-row exoneration rate and the highest rate of death sentences overturned on appeal.

The study’s authors estimate that Louisiana would have to spend at least $281 million to maintain the death penalty long enough to execute a person arrested this year for capital murder. They found that Louisiana death-penalty cases take approximately three years after arrest to reach trial. Once sentenced to death, prisoners spend an average of 17.6 years before being executed. “The study reveals how shockingly little Louisiana gets in return for the millions being spent on the death penalty," said Marcus Maldonado, Louisiana Conservatives Concerned about the Death Penalty Advisory Committee member. "It is a staggering sum and an indefensible government expenditure when you consider all this money results in reversals, wrongful convictions, and no public safety benefit.” Two death-penalty abolition bills were proposed in the Louisiana legislature this year, sponsored by Sen. Dan Claitor (R-Baton Rouge) and Rep. Terry Landry (D – Iberia). One of them, SB 112, a constitutional amendment abolishing capital punishment, failed in the Senate on May 6. A bill to conceal information about the state’s lethal-injection drug purchases was reported favorably from a House committee on May 7 and is scheduled for floor debate on May 20.


Federal Appeals Court Upholds Ban on Unconstitutional Conditions on Virginia Death Row

Posted: May 9, 2019

A federal appeals court has declared that Virginia for many years housed its death-row prisoners in unconstitutional conditions and has barred the state from reverting to its prior practices. On May 3, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that the Commonwealth’s former policy of 23- or 24-hour per day solitary confinement of death-row prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. The 2-1 decision upheld a ruling by the U.S. District Court that found Virginia’s death-row conditions “created, at the least, a significant risk of substantial psychological or emotional harm” and that the state had been “deliberately indifferent” to that risk.

At the time the Commonwealth’s three current and two since-executed death-row prisoners filed suit, Virginia limited death-row prisoners to one hour of recreation per day five days a week and a ten-minute shower three days per week. During recreation, they “were confined to individual enclosures with concrete floors and enclosed by a steel and wire mesh cage.” At all other times, they were held alone in 71-square-foot cells, about half the size of a parking space, with lights on 24 hours a day. Contact visits with immediate family members could be granted at the warden’s discretion once every six months under “extreme circumstances.” In practice, this policy meant that prisoners were only granted contact visits as their execution date approached.

The appeals court decision cited overwhelming scientific research that has found serious detrimental effects of solitary confinement. A leading survey of such research stated “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” The court also relied upon a growing body of caselaw in which courts have found solitary confinement conditions to be unconstitutional. The court found particularly relevant “the empirical evidence … that solitary confinement poses an objective risk of serious psychological and emotional harm to inmates, and therefore can violate the Eighth Amendment.” Cate Stetson, who argued on behalf of the prisoners, praised the court’s action as “a landmark decision.” In a statement released to the media, she said: “The court was right to find that the severe isolation to which our clients were subjected for years on end put them at a substantial risk of severe psychological and emotional harm and violated their right to be free from cruel and unusual punishment.”

In August 2015, about a year after the suit was originally filed, Virginia revised its death-row regulations to allow weekly contact visits with family, in-pod shared recreation seven days a week and outdoor recreation five days a week, and daily showers. However, the Commonwealth repeatedly refused to rule out the option of reverting to its prior death-row housing practices. The death-row prisoners conceded that the new conditions do not violate the constitution, but persuaded the court that the state’s lack of “repentance” left the prisoners facing a “cognizable danger of recurrent violation.” The decision prohibits the state from returning to the earlier, unconstitutional conditions. Judge Paul V. Niemeyer dissented from the majority opinion because the unconstitutional conditions are no longer in effect.


Federal Court Hears Two Weeks of Testimony in Arkansas Lethal-Injection Challenge

Posted: May 8, 2019

A two-week federal trial on the constitutionality of Arkansas’s lethal-injection protocol came to a close May 2, 2019, as the parties presented legal arguments to the court after eight days of testimony. U.S. District Judge Kristine G. Baker must now determine whether the state’s three-drug protocol beginning with the sedative midazolam is allowable. Lawyers representing a group of death-row prisoners presented testimony from witnesses of recent executions, as well as medical experts who said that midazolam does not render prisoners unconscious. In his closing argument, the prisoners’ lawyer Will Freeman likened the three-drug cocktail of midazolam followed by a paralytic drug and the heart-attack inducing drug potassium chloride to being conscious while “having gasoline poured on you and being set on fire.”  The Arkansas attorney general’s office presented testimony from other execution witnesses and medical professionals that contradicted the prisoners’ evidence. “The prisoners’ burden is … [to] show that the midazolam protocol is sure or very likely to cause needless suffering by pointing to actual objective evidence, or at the very least, demonstrating a strong scientific consensus," Assistant Attorney General Jennifer Merritt argued. “They’ve simply failed to carry the burden.”

Much of the testimony in the trial came from people who had witnessed the four executions performed in Arkansas in April 2017, with an intense focus on the executions of Kenneth Williams (pictured) and Marcel Williams. Kelly Kissel, a former Associated Press reporter who has witnessed ten executions, provided a detailed timeline of Kenneth Williams’s execution. “Three or four minutes into the execution was where he had the episode in which his body lurched forward 15 times in quick succession and then five additional times at a slower rate,” Kissell testified. “It was lurching, jerking, convulsing.” Kissel also testified that Williams moaned loud enough that he could hear it in the witness chamber, even though the microphone in the execution chamber had been turned off. Cassandra Belter, a lawyer from Philadelphia who had assisted in Kenneth Williams’s defense, corroborated Kissell’s account. “He was convulsing up and, like, bucking against the restraints,” she testified. “At that point, I think at 10:55 [p.m.], he also groaned in pain. The breathing became audible, he was gasping as it grew stronger to the point that it sounded like he was choking.” Former Arkansas Times reporter Jacob Rosenberg recounted the execution of Marcel Williams, testifying: “At the time he was breathing heavily with [his] chest lifting off of the gurney and his back arching in order to do so. And his eyes began to slowly droop, though one sort of stayed open throughout this process, and his heavy breathing and arching sort of continued throughout this time.”

The state’s witnesses characterized the prisoners’ reactions differently, describing them as “muscle spasms,” rather than “convulsions.” State Sen. Trent Garner, a legislative proponent of capital punishment who witnessed Kenneth Williams’s execution, said that "[f]or approximately 10 to 15 seconds there were some brief involuntary muscle spasms. His chest rose two to three inches a few times." Garner, who has no medical training, testified that he can recognize pain from seeing soldiers killed and injured during his military service in Afghanistan. “I call it involuntary because I didn’t see any pain on his face, no grimacing. I didn’t hear any noises that would indicate pain,” he said.

The two sides also presented competing testimony from medical professionals. Craig W. Stevens, a professor of pharmacology at Oklahoma State University in Tulsa, said "For a certain, [the second and third drugs are] going to cause severe pain because midazolam does not produce anesthesia. ... Even at massive doses, persons still respond to noxious stimulus. There will be pain and suffering masked by the paralytic.” State’s witness Dr. Daniel Buffington, a clinical pharmacologist with the University of South Florida, said convulsions are a known side effect of midazolam. “They would go from still to moving or moving aggressively or gasping or coughing, making an audible sound. It’s when the body is sending a signal to the body so it’s a neuromuscular response to try to get more air at that moment,” he said.

In closing arguments, Freeman called the Arkansas execution protocol “a clear step backward. It is sure or very likely to cause serious illness and needless suffering when it is implemented, and, respectfully, we have identified an alternative that is feasible; it is readily implemented and is, in fact, significantly likely to reduce the substantial risk of severe pain.” To fulfill the requirement that the prisoners present a viable alternative execution method, attorneys offered secobarbital, a drug used in physician-assisted suicide, or the firing squad.


John Oliver’s “Last Week Tonight” Takes a Satirical Look at Lethal Injection

Posted: May 7, 2019

Sometimes you need a joke about a cute but very angry desert rain frog to prepare an unsuspecting audience for a serious discussion of lethal-injection executions in the United States. That was the approach undertaken by Last Week Tonight, the satirical weekly HBO comedy-news show hosted by John Oliver, as Oliver addressed the deadly serious issue of lethal injection in the show’s May 5, 2019 episode. Oliver called the death penalty “a wrong, bad thing the government should not be able to do,” but said that whether you are against the death penalty or not, the evidence graphically demonstrates that lethal injection is a “horrifying” way to carry it out.

In the twenty-minute segment, Oliver outlined several of the reasons he opposes the death penalty, including wrongful convictions, lack of deterrent effect, and cost. “There’s actually no proof it has an effect on bringing down crime, [and] it’s technically more expensive to execute someone than to keep them in prison for life,” he explained, citing DPIC’s 2009 report, Smart on Crime, for data on the cost of capital punishment. “According to one study, around 4% of people sentenced to death are actually innocent, which in itself, should give us pause about the whole enterprise,” he added.

Oliver devoted most of the segment to discussion of the problems and controversy surrounding the use of lethal injection. “Let’s start with the idea that it’s medical, that is more than a bit of a stretch, because lethal injections aren’t performed by medical personnel for a pretty obvious reason,” Oliver said, quoting death-penalty researcher Michael Radelet, who said, “It violates ethical codes for physicians to be involved.” Recounting the history of lethal injection, Oliver explained that the formula was invented by an Oklahoma medical examiner who called himself “an expert in dead bodies, but not an expert in getting them that way.” Oliver described him as “just an enthusiast with a can-do attitude for killing people.” He also criticized an expert witness who has testified in support of the use of midazolam for several death-penalty states. Dr. Roswell Lee Evans, Oliver said, has been a key witness for six states, but he has never conducted any research on any kind of anesthetic. Dr. Evans presented 150 pages of printouts from drugs.com in his 300-page expert report for a case before the U.S. Supreme Court. “Incredibly, in our desire to find a more humane method, we’ve ended up letting amateurs both invent and administer a form of unpredictable torture,” Oliver said.

He went on to describe how the use of midazolam has created new problems with lethal injection, as it does not adequately anesthetize prisoners before a suffocating paralytic and a profoundly painful heart-stopping drug are administered. “You could be fully aware, feel like you’re suffocating, but unable to move or communicate while fire is about to be injected into your veins. And this somehow qualifies as more humane than an electric chair, which seems pretty debatable at best,” he summarized. Oliver concluded with a repudiation of lethal injection as a sanitized, humane execution method: “If the thing that’s making you comfortable with lethal injection is that it’s humane, it isn’t. Because the fundamental fact to understand about lethal injection is, it is a show. It is designed not to minimize the pain of people being executed, but to maximize the comfort of those who want to support the death penalty without confronting the reality of it, which is that it’s violent and it’s brutal, and it’s never going to be anything other than that.”


Judge Declares Texas Death-Row Exoneree Alfred Dewayne Brown “Actually Innocent”

Posted: May 6, 2019

A Texas trial court judge has formally declared Alfred Dewayne Brown (pictured) “actually innocent” of the murder charges that led to his wrongful conviction and death sentence in 2005. The order, issued on May 3, 2019 by Harris County District Court Judge George Powell, paves the way for Brown to receive compensation from the state for the ten years he was wrongfully incarcerated on death row for the killing of a Houston police officer.

Brown was exonerated in 2015 after evidence showed that Harris County prosecutors had manipulated the grand jury system, jailed a witness until she agreed to falsely implicate Brown, and suppressed phone records showing that Brown could not have been at the crime scene when the murder occurred. At that time, then-District Attorney Devon Anderson dismissed all charges against Brown, but refused to provide a statement that he was “actually innocent,” which is a prerequisite for a wrongfully convicted person to receive compensation from the state. Anderson’s successor, Kim Ogg, appointed John Raley to serve as special prosecutor to reinvestigate the case and make a recommendation regarding compensation. Following a ten-month investigation, Raley produced an extensive report detailing the prosecutor’s manipulation of witnesses to testify against Brown and suppression of the phone records that corroborated his alibi. The report concluded, “By clear and convincing evidence, no reasonable juror would fail to have a reasonable doubt about whether Brown is guilty of murder. Therefore his case meets the legal definition of ‘actual innocence.’” In March 2019, Harris County District Attorney Kim Ogg signed an affidavit declaring Brown “actually innocent.”

After Ogg’s declaration, Judge Powell assessed the legal question of whether he had jurisdiction to formally declare Brown innocent. Based on the declaration, Brown could be eligible for nearly $2 million in compensation for the decade he was wrongfully confined on death row. Texas law generally requires that an actual innocence finding be issued as part of the appeals process, specifically through a writ of habeas corpus, but that process was not available to Brown, whose legal case was already closed. The court considered, but rejected, the possibility of prosecutors bringing new charges against Brown and dismissing the case anew, saying that would be an “absurd result” and a “second injustice.” Instead, Judge Powell rescinded his previous order that had formally dismissed the charges against Brown and issued a new one-page order specifically stating that “the criminal action...is DISMISSED due to Alfred Dewayne Brown’s actual innocence.”

Outside the courtroom, Ogg reiterated that Brown is innocent. "Alfred Brown was wrongfully convicted,” she said. “Given the state of the evidence today and the law as it’s applied we don’t believe that any reasonable juror would find Alfred Brown guilty under the evidence as it exists now.” Attorney Neal Manne said, “[t]he law of the state of Texas entitles [Brown] to compensation but it can never fully compensate him for spending 12 years in prison for a crime that he had no involvement in. But he’s entitled to the compensation and I hope that he can now lead a peaceful and happy life.” Despite the declaration, and the report explaining Brown’s innocence, Houston’s police union continues to assert that Brown is guilty of killing Officer Charles Clark. The union president said it plans to fight Brown’s compensation. Brian Stolarz, one of the attorneys who helped free Brown, responded, saying, “Dewayne was peaceful and graceful today. He thanks his lawyers and supporters and thanks the district attorney and special counsel for their thorough investigation. Clearing his name has been the goal since he was released almost four years ago, and to those who seek otherwise, he meets hatred with love.”