Two amicus curiae briefs filed in the Racial Justice Act appeal of North Carolina death-row prisoner Rayford Burke (pictured) are asking the North Carolina Supreme Court to redress systemic problems in North Carolina’s administration of its death penalty. One brief, filed by the New York-based NAACP Legal Defense and Educational Fund (LDF), urges the court to provide Burke “the opportunity to prove that racial bias impermissibly influenced jury selection and infected his death sentence.” A second brief, filed by the Promise of Justice Initiative and 12 former judges, prosecutors, and law enforcement officials from North Carolina, asks the court to declare the state’s death penalty unconstitutional.
Burke was convicted and sentenced to death for the 1992 murder of a man who he said had testified falsely against him in a prior case. He had sought review of his death sentence under North Carolina’s Racial Justice Act (RJA), enacted in 2009, which permitted prisoners to challenge their death sentences based on statistical evidence of racial discrimination. However, before a hearing was held on Burke’s Racial Justice Act claim, Cumberland County Superior Court Judge Gregory Weeks conducted an extensive evidentiary hearing in the case of Marcus Robinson and granted Robinson relief. In a 167-page opinion, Judge Weeks reviewed an “exhaustive study” of North Carolina prosecutors’ strikes and acceptances of more than 7,400 jurors in 173 North Carolina capital murder trials between 1990 and 2010 and found “a wealth of evidence showing the persistent, pervasive, and distorting role of race in jury selection throughout North Carolina.” Weeks wrote that prosecutors struck black jurors at more than twice the rate of all other jurors, with “remarkable consistency” in strike rates in every county and across the entire period of time studied. Race, he said, “was a materially, practically and statistically significant factor in decisions to exercise peremptory challenges during jury selection by prosecutors when seeking to impose death sentences in capital cases” and he concluded that the strikes were intentionally undertaken on the basis of race.
The legislature responded by repealing the RJA in 2013. Although four death-row prisoners had received sentence reductions prior to repeal, Burke’s claim had not yet been heard in court and his trial court ruled that the repeal had extinguished any right he had to a hearing. The state courts also overturned the grants of relief to the four prisoners. In March 2018, the state supreme court announced that it would hear RJA appeals from those prisoners, as well as from Burke and another prisoner whose RJA claim had also been filed but not heard.
The LDF brief sets forth evidence that prosecutors discriminated in Burke’s case, including that prosecutors struck all African-American prospective jurors, resulting in an all-white jury, and called Burke “a big black bull” during the trial. It also catalogues what it describes as “a long and tragic history of entrenched racial discrimination in the administration of North Carolina’s death penalty.” In a statement accompanying the filing of the brief, LDF Senior Deputy Director of Litigation Jin Hee Lee said: “Allowing racial bias in Mr. Burke’s case to go unchallenged would be tantamount to condoning racial bias in the administration of justice. The Court must affirm its unwavering commitment to fundamental fairness and racial equality by affording Mr. Burke the opportunity to prove that discrimination tainted his death sentence,” said.
The Promise of Justice Initiative brief, joined by the former judges, prosecutors, and law enforcement personnel, takes an even broader view, calling on the court to strike down North Carolina’s death penalty as unconstitutional. “The time has come to consider whether the system of capital punishment that currently operates in North Carolina violates the evolving standards of decency,” the brief states. Citing evidence that, in North Carolina, no one has been executed since 2006 and the state has averaged fewer than one new death sentence per year over the last seven years, the brief argues that “it is now beyond dispute that use of the death penalty is unusual.” It also points to recent court decisions striking down the death penalty in other states, including Delaware in 2016 and Washington in 2018. “Courts have recognized that the penalty is corrupted by arbitrariness, plagued by error and discrimination, and unsupported by evidence that it deters,” it says.
Ohio Governor Mike DeWine (pictured) has halted all executions in the state until its Department of Rehabilitation and Correction is able to develop a new execution protocol that gains approval from the courts. Responding to the findings of a federal court that likened Ohio’s three-drug lethal-injection protocol to a combination of waterboarding and chemical fire, DeWine said “Ohio is not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.” DeWine announced his decision at an Associated Press forum in Columbus on February 19. The Republican governor did not set a date on which he expected executions to resume, saying “[a]s long as the status quo remains, where we don’t have a protocol that has been found to be OK, we certainly cannot have any executions in Ohio.”
On January 14, federal magistrate Judge Michael Merz issued an opinion saying that executions under Ohio’s current drug protocol “will almost certainly subject [prisoners] to severe pain and needless suffering.” Mertz noted that 24 of 28 available autopsies from executions involving the sedative midazolam – the first drug in Ohio’s protocol – showed evidence of pulmonary edema, a build-up of fluid in the lungs that was “painful, both physically and emotionally, inducing a sense of drowning and the attendant panic and terror, much as would occur with the torture tactic known as waterboarding.” Mertz found that midazolam lacked the pharmacological properties necessary to keep the prisoner unconscious during the administration of the paralytic second drug, rocuronium bromide, and the heart-stopping third drug, potassium chloride. As a result, he said, the prisoner would experience the sensation of “fire … being poured” through his veins when those drugs were administered. The court’s ruling led DeWine to issue a six-month reprieve to death-row prisoner Warren Keith Henness, who had been scheduled to be executed February 13.
DeWine sponsored Ohio’s capital punishment law as a state senator in 1981 and later represented the state in death-penalty cases as its Attorney General. The governor, who is Catholic and identifies himself as pro-life, has not said how those beliefs affect his stance on the death penalty. When reporters at the forum asked about his personal views on capital punishment, DeWine equivocated. “It is the law of the state of Ohio,” he said. “And I’ll let it go [not comment further] at this point. We are seeing clearly some challenges that you have all reported on in regard to carrying out the death penalty.” Ohio has six more executions scheduled in 2019 and 23 scheduled through 2023.
Kevin Werner of Ohioans to Stop Executions praised the governor’s decision, but cautioned that broad problems identified in a 2014 Task Force Report on the state’s death penalty still need to be addressed. The people set to be executed, he said, are among the most vulnerable in the criminal legal system: “They are people who are poor, who killed white victims, and who have some underlying substance abuse or abuse as children or have a mental illness – I mean, that’s who we’re talking about here."
Overturning the Texas Court of Criminal Appeals for the second time, the United States Supreme Court ruled on February 19, 2019, that Texas death-row prisoner Bobby James Moore is intellectually disabled and may not be executed. In an unsigned opinion, the Supreme Court reversed the latest Texas appeals court decision that would have allowed Moore’s execution, saying the state court had relied on many of the same improper lay stereotypes and committed many of the same errors that had led the Justices two years ago to strike down Texas’s “outlier” approach to determining intellectual disability. The Court said that the Texas ruling, “when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.”
This decision marked the second time the Supreme Court had reversed a Court of Criminal Appeals denial of Moore’s intellectual disability claim. In 2014, a Texas trial court, applying prevailing clinical standards, found that Moore was intellectually disabled and therefore ineligible for the death penalty under the Supreme Court’s 2002 decision in Atkins v. Virginia. However, the Texas Court of Criminal Appeals (TCCA) overturned that decision, saying Moore had not satisfied a Texas-specific standard called the “Briseño factors” (named after the Texas court decision that announced them). In 2017, the U.S. Supreme Court unanimously rejected the use of these factors, calling them an unscientific “invention” of the TCCA that was “untied to any acknowledged source” and lacked support from “any authority, medical or judicial.” The Court criticized the TCCA’s reliance upon “lay stereotypes” about what people with intellectual disability can and cannot do and its misplaced focus on things Moore was able to do in a structured prison setting instead of considering his life history of impairments in daily adaptive functioning, and directed the TCCA to reconsider the issue applying appropriate diagnostic standards.
When the case returned to the state courts, numerous groups, including the American Psychological Association and the American Psychiatric Association, filed friend-of-the-court briefs asserting that Moore met the prevailing medical definitions of intellectual disability. The Harris County District Attorney’s Office agreed with Moore and conceded that his death sentence should be vacated. Nonetheless, over the sharp dissent of three judges, the TCCA again upheld Moore’s death sentence. With the backing of the mental health professional associations, Special Olympics Chairman Tim Shriver, and a group of prominent conservative leaders who described the TCCA’s flouting of the 2017 Supreme Court ruling as “inimical to the rule of law,” Moore again asked the Supreme Court to intervene. When Harris County prosecutors again agreed that Moore was entitled to relief, the Texas Attorney General’s office attempted to intervene in the case to defend the TCCA’s ruling. The Supreme Court reversed, writing: “We … agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.” Justice Alito, joined by Justices Thomas and Gorsuch, dissented, accusing the majority of improperly engaging in factfinding and failing to provide clarity to lower courts.
Cliff Sloan, a lawyer representing Moore, praised the ruling: “We greatly appreciate today’s important ruling from the Supreme Court, and we are very pleased that justice will be done for Bobby Moore.” Harris County District Attorney Kim Ogg also released a statement: “The Harris County District Attorney’s Office disagreed with our state’s highest court and the attorney general to stand for Justice in this case. The U.S. Supreme Court agreed."
Bills to repeal and replace the death penalty with non-capital punishments have gained new traction across the United States in 2019 as a result of opposition to the death penalty among ideologically conservative legislators. That movement – buoyed by fiscal and pro-life conservatives, conservative law-reform advocates, and the deepening involvement of the Catholic Church in death-penalty abolition – has led to unprecedented successes in numerous houses of state legislatures and moved repeal efforts closer to fruition in a number of deeply Republican states. In 2019, conservative legislators are leading the call for death-penalty abolition in conservative-leaning states such as Wyoming, Montana, and Kentucky, and playing a critical role in bipartisan efforts to repeal or reform capital punishment in Virginia and New Hampshire.
The surprise strength of a death-penalty repeal bill in Wyoming is emblematic of the growing Republican abolition movement. There, in an overwhelmingly Republican legislature, a bill to replace the death penalty with life without parole garnered significant support from both parties and passed the state house and a senate committee before falling short in the full senate. In Kentucky and Montana, Republican legislators have introduced abolition legislation and are attempting to build coalition support, and in Virginia, the Republican-controlled state Senate passed a bill to ban the death penalty for people with severe mental illness. Conservatives have said they oppose capital punishment because of pro-life beliefs, a desire to reduce government spending, and the lack of deterrent effect. In New Hampshire, a bill to abolish the death penalty passed the legislature with bipartisan support, but was vetoed in 2018. The legislature has renewed bipartisan repeal efforts in 2019.
The Wyoming House of Representatives voted (36-21) on February 1 to pass HB 145, a bill to abolish the death penalty. The bill garnered the support of a majority of House Republicans, all the house Democrats who voted, and the chamber’s lone Independent. It then unanimously passed the Republican-controlled Senate Judiciary Committee on February 13, before being defeated in the full Senate by a vote of 12-18. In the Senate, nine Republicans and all three Democrats voted in favor of abolition. The bill was introduced by Republican Rep. Jared Olsen of Cheyenne with Republican and Democratic co-sponsors in both houses. Senate co-sponsor Brian Boner (R – Converse) said, “We have an obligation to have a justice system that is blind and based on facts, and not based on what we wished it was or what it used to be.” Olsen said he was concerned about the number of exonerations from death row. “It is way too much authority to vest in our government, and we get it wrong,” he said. Concerns about costs convinced Sen. Bill Landen (R – Casper) to vote for abolition. "I finally decided that I can't go home and feel good about explaining to people all of those myriad of cuts we've made to the state budget and then defend expenditures like this, which have gone on for years and years and years," he said. Wyoming spends an estimated $750,000 per year on legal costs associated with the death penalty, but has not executed anyone since 1992 nor imposed a death sentence since 2004.
Kentucky House Majority Whip Chad McCoy (R – Nelson) said he hopes to get support for his abolition bill from Catholic legislators who have a moral opposition to the death penalty, as well as fiscal conservatives who see it as a costly, ineffective government program. “When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle. And mine is purely economics,” he said. Kentucky also rarely uses the death penalty. Its last execution was in 2008 and its last death sentence was in 2014. State Representative Mike Hopkins, R-Missoula, the sponsor of Montana’s bill to replace the death penalty with life in prison without the possibility of parole, told a House committee on February 18 that the state’s death penalty was simply ineffective. The two people sentenced to death in the state have been on death row for thirty years, he said, and “there is no logical measurement that 30 years equals a death sentence. … Regardless of how you feel because of capital punishment, nobody is dying from it.”
A February 4, 2019 article in the criminal justice newsletter, The Appeal, features the case of Demetrius Howard, a California prisoner sentenced to death for a crime in which he didn’t kill anyone. Howard was sentenced to death in 1995 for his participation in a robbery in which another man, Mitchell Funches, shot and killed Sherry Collins. Howard was never accused of firing a shot and he has consistently maintained that he neither expected nor intended that anyone would be killed. But under California’s felony murder law, he was eligible for the death penalty because he participated in the robbery. In a letter to The Appeal, Howard wrote, “I am no saint or some angel. I’ve made my share of wrongs, but I haven’t killed no one [or] told anyone to kill someone.”
California is one of twenty states that allow the execution of defendants who neither killed nor intended that a killing take place. The controversial practice has attracted the most attention in the state of Texas, where at least six prisoners have been executed despite undisputed evidence that they were not involved in the killing itself. In Howard’s case, the man who actually shot Collins, Mitchell Funches, received a sentence of life without parole when the jury in his trial could not reach a unanimous decision on whether to sentence him to life or death. In 2018, California passed a law that narrowed the scope of the felony murder law, making defendants liable for murder only if they were the killer, solicited the killer, or acted with reckless indifference to human life. The change is retroactive, but does not apply to Howard because the jury found that he had “acted with reckless indifference to human life” before it sentenced him to death.
Howard’s death sentence is also a by-product of outlier death-penalty practices in San Bernardino County. San Bernardino is one of five Southern California counties that imposed more death sentences between 2010 and 2015 than 99.5% of U.S. counties, earning the region the nickname “the new death belt.” In 1993, shortly before Howard was sentenced to death, there were 10 active capital trials in the county, and then-District Attorney Dennis Kottmeier said he was considering seeking it in two other cases. At the time, Kottmeier told the San Bernardino County Sun, “That’s higher than I’ve ever seen it. At any given time in the past the number pending seemed to be about six.” He attributed the high number of capital cases to a high rate of violent crime, as well as state laws passed in 1990 and 1993 that expanded the list of death-eligible crimes. The California Attorney General’s 2017 report, Homicide in California, shows that despite its disproportionate pursuit of capital punishment, San Bernardino’s higher-than-average murder rate has remained the same from 1997 to 2017, while murder rates have declined statewide and in many of California counties during that period.
As execution drugs have become more difficult for states to lawfully obtain and problematic executions have become more frequent, states have expanded their efforts to shield their execution-related activities from public scrutiny. In the latest episode of Discussions with DPIC, Robin Konrad, former DPIC Director of Research and Special Projects, joins Executive Director Robert Dunham and current Director of Research and Special Projects Ngozi Ndulue to discuss DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. Konrad, the lead author of the report, is now an Assistant Professor of Lawyering Skills at Howard University School of Law. The discussion covers the recent expansion of secrecy in the use of the death penalty, the reasons for the unavailability of lethal-injection drugs, and the problems that have resulted from execution secrecy.
Secrecy policies are ubiquitous in the states that are currently attempting to carry out executions, Konrad explains. “Everybody has some type of secrecy provision” related to the sources of execution drugs or the way executions are carried out, Konrad says. Secrecy provisions conceal the sources of the drugs states obtain and the identities and qualifications of the execution team, and restrict the portions of the execution witnesses are permitted to see and hear. The podcast discusses these issues and questionable measures states have taken to hide potential problems, including Florida and Oklahoma taping down prisoners’ hands so witness cannot see them clench their fists in reaction to the drugs, and Virginia and Nebraska closing curtains to conceal how long the IV insertion process takes or the moments just before and after the prisoners’ death.
The episode also includes a discussion of the consequences of secrecy, including illegal actions that have been discovered only by accident or through investigative journalism. “We’ve seen states acting in a way that is often illegal, where we’ve seen states purchasing drugs overseas in an illegal manner from companies or individuals that are less than reputable. We've seen the prison officials driving money in the middle of the night across state lines to exchange money for drugs and drugs for money. We have seen the states using pharmacies that have had numerous violations. One pharmacy that was used by Missouri had … 1800 violations of state and federal law,” Konrad says. The podcast concludes with a discussion of the ways in which secrecy undermines democratic principles of open government and hides problematic state practices. “When we’re looking at [a] government ... for the people, by the people, the people should know what is going on and states shouldn't be hiding information about the most serious punishment that they carry out against their citizens,” Konrad says. “I don’t see how in any principled system of justice, you can sustain a system that basically is grounded in secrecy, grounded in hiding what’s going on from the public. You have to be open, you have to be honest, you have to be transparent, you have to be trustworthy,” adds Dunham.
The U.S. Supreme Court has found itself in the crossfire of harsh criticism from across the political spectrum after its intervention in a death penalty case allowed Alabama to execute a Muslim prisoner without providing him access to a religious adviser. Evangelical Christians and Catholic Bishops joined editorial boards and commentators from the New York Times to the National Review in condemning the Court’s 5-4 decision permitting the execution of Domineque Ray (pictured) on February 7, 2019. Los Angeles Times deputy editorial page editor Jon Healey wrote: “If you need a rabbi, an imam or other non-Christian spiritual advisor to accompany you into the death chamber in Alabama, God help you. Because the U.S. Supreme Court won’t.” Libertarian professor Ilya Somin, of the George Mason University Antonin Scalia Law School, called the decision a “grave injustice” and the conservative National Review headlined a column by its senior writer David French, “The Supreme Court Upholds a Grave Violation of the First Amendment.”
Alabama scheduled Ray’s execution on November 6. Undisclosed to Ray and the other death-row prisoners, Alabama’s secret execution protocol mandated that a Christian chaplain—and no other religious adviser—be present in the execution chamber. Ray sought to be provided the same access to religious comfort that the state afforded Christian prisoners, and requested that his imam be allowed in the execution chamber. The state denied his request on January 23, 2019, saying that the chaplain was allowed in the chamber because he was a trained employee of the Department of Corrections, but an untrained volunteer imam would present security concerns. Five days later, Ray sought a stay of execution alleging that Alabama’s policy violated his First Amendment right to free exercise of religion. A federal appeals court granted a stay to allow briefing on the issue, but the U.S. Supreme Court, in a contentious 5-4 decision, reversed the decision. In a dissent joined by Justices Breyer, Ginsburg, and Sotomayor, Justice Elena Kagan wrote, “Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”
Christian leaders raised concerns about the decision’s disregard of human dignity and its broader impact on religious liberty. In a news release issued under the heading “U.S. Bishops’ Chairmen Condemn Decision Preventing Muslim Man from Receiving Appropriate Spiritual Care at Execution,” the chairs of the U.S. Conference of Catholic Bishops committees for Religious Liberty and for Domestic Justice and Human Development called the death penalty itself “an affront to human dignity.” The statement said “Mr. Ray bore the further indignity of being refused spiritual care in his last moments of life.” The committee chairs—Archbishop Joseph E. Kurtz of Louisville, Kentucky, and Bishop Frank J. Dewane of Venice, Florida—wrote: “This unjust treatment is disturbing to people of all faiths, whether Muslim, Christian, Jewish, or otherwise. People deserve to be accompanied in death by someone who shares their faith. It is especially important that we respect this right for religious minorities.” In an op-ed for The New York Times, Alan Cross, a pastor and missional strategist with the Montgomery Baptist Association, wrote, “I am not a Muslim. I am an evangelical Christian minister in Alabama. But my religious freedom — everyone’s religious freedom — took a hit when my state decided that instead of slowing down to accommodate religious difference, the execution, which is final and irrevocable, had to go on as scheduled.” Pastor Cross stressed the value of religious diversity, saying “The solution to diversity is not to eliminate religious difference, but rather to work together to be fully who we are, to cultivate a society where religious belief is recognized and accommodated. Mr. Ray’s religious freedom mattered as much as anyone else’s. That freedom is part of what makes America great. When it is lost, it is replaced by a sterility and silence that will ultimately drive us apart.” In its own editorial, the New York Times editorial board called the Supreme Court ruling a “moral failure” that diminished Muslims and compounded the indignity of its prior acquiescence in the travel ban imposed by the Trump administration.
Colorado Governor Jared Polis (pictured) has said he will “strongly consider” commuting the death sentences of the three men on the state’s death row if the state abolishes the death penalty. In a February 7, 2019 interview on Colorado Public Radio, Polis told Colorado Matters host Ryan Warner, “if the legislature sends us a bill to eliminate the death penalty in Colorado, I would sign that bill … [and] I would certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison.” Polis, who voiced his opposition to the death penalty during his 2018 campaign for governor, reiterated his views during the Colorado Matters interview. “I think it’s not cost effective, I think it’s not an effective deterrent,” he said. “If the State Republicans and Democrats were to say, and I were to sign a bill that said we no longer have the death penalty in Colorado, whether it's formally in the bill or not,” the Governor said, “then I would strongly consider making sure that penalty that is no longer on the books in Colorado is not carried out for anybody who's in that process.”
Colorado’s previous governor, John Hickenlooper, imposed a moratorium on executions in 2013. Hickenlooper said he initially had supported the death penalty, but changed his views when he learned more about the issue: “My whole life I was in favor of the death penalty. But then you get all this information: it costs 10 times, maybe 15 times more money to execute someone than to put someone in prison for life without parole. There’s no deterrence to having capital punishment. And I don’t know about you, but when I get new facts, I’ll change my opinion. I didn’t know all of this stuff.” Former prosecutor and state representative Doug Friednash, who sponsored a bill to expand Colorado’s death penalty to include multiple murders committed during a single criminal episode, has undergone a similar evolution. In a February 1 op-ed in the The Denver Post, Friednash called on the legislature to repeal its capital punishment law. “Twenty-five years ago, as a freshman House Democrat, I sponsored legislation to expand the death penalty,” Friednash wrote. “I was wrong.” The law he supported was used to prosecute James Holmes, who killed 12 people in a shooting at an Aurora movie theater in 2012, and Dexter Lewis, who stabbed five people to death in a Denver bar. Juries sentenced both to life. Holmes’ case, he says, illustrates some of the problems with the death penalty – the law failed to deter Holmes and his capital trial, which resulted in a life sentence, cost taxpayers approximately $5 million. Holmes was tried in Colorado’s 18th Judicial District, where defendants are "four times more likely to face a death prosecution than elsewhere in the state.” All three of the state’s death-row prisoners are Black men who were tried in that district. Friednash concludes, “It’s time to close this chapter in Colorado’s history books. The Colorado legislature should abolish the death penalty this session. And then Gov. Jared Polis should commute the death sentences of our three death-row inmates to life without the possibility of parole.”
In a February 9 editorial, the Boulder Daily Camera also urged the legislature to abolish the death penalty. Citing the lack of deterrent effect and the high cost of capital punishment, the paper wrote: “If the worth of a public policy is its ability to achieve policy objectives, then capital punishment is a failure.” The editorial also noted “great economic, geographic, and racial disparities” in Colorado’s imposition of the death penalty. “The location of the county line in relation to a crime,” it said, “should not determine whether a defendant lives or dies, and neither should the skin color of the accused.” And in conclusion, it pointed to former Governor Bill Ritter’s 2011 posthumous pardon of Joe Arridy, who was wrongfully executed by Colorado in 1939 despite what Ritter called “an overwhelming body of evidence” that Arridy was innocent. “The state-sanctioned killing of an innocent person is more morally repugnant than the execution of a guilty one could be morally just,” the editorial board wrote. “For this reason alone — given that innocent people almost certainly die under a regime of capital punishment — Colorado should abolish the death penalty.”
Georgia death-row prisoner Keith Tharpe (pictured, left) and Oklahoma death-row prisoner Julius Jones (pictured, right) are asking the U.S. Supreme Court to grant them new trials after evidence showed that white jurors who described the defendants with racist slurs participated in deciding their cases. The involvement of the racist jurors, the prisoners say, violated their Sixth Amendment rights to impartial juries. A juror in Tharpe’s trial gave a sworn affidavit years after voting to convict Tharpe, in which he wondered “if black people even have souls,” and said, “there are two types of black people: 1. Black folks and 2. N***rs." Tharpe, he wrote, “wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did." In Jones’s case, a juror told Jones’s legal team that another juror had said the trial was “a waste of time” and “they should just take the n***r out and shoot him behind the jail.”
Tharpe and Jones argue that two 2017 Supreme Court decisions, Peña-Rodriguez v. Colorado and Buck v. Davis, require the Court to reconsider their cases. In Buck, Chief Justice John Roberts declared for the Court that “the law punishes people for what they do, not who they are,” and overturned a death sentence imposed after a psychologist testified that Buck posed a greater risk of future dangerousness because he is black. The Chief Justice wrote that “discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice,” calling racism a “toxin[ that] can be deadly in small doses.” In Peña-Rodriguez, now-retired Justice Anthony Kennedy wrote for a five-justice majority of the Court that courts may consider a juror’s statement showing he had relied on racial stereotypes to convict a defendant as evidence of a Sixth Amendment violation.
In January 2018, the U.S. Supreme Court overturned a federal appeals court’s refusal to consider Tharpe’s racial discrimination claim. Less than three months later, that court again refused to consider the issue, saying Tharpe had not previously presented it to the state courts. Jones has also repeatedly sought review of claims that racial discrimination has infected his case. He previously asked the Court to overturn his death sentence based on the findings of a 2017 study that showed significant racial disparities in Oklahoma’s death sentencing practices. On January 22, 2019, after having rescheduled consideration of Jones’s appel 25 times, the Court declined to review the case. Samuel Spital, who was co-counsel in Buck’s case and is lead counsel on the brief of the NAACP Legal Defense and Educational Fund’s friend-of-the-court brief supporting Tharpe, said of Tharpe and Jones, “We know that these two men are facing execution at least in part because they’re black. Under those circumstances, the state just doesn’t have an interest in enforcing a death sentence, and for that reason, the procedural obstacles that you would have with respect to certain other claims should not be part of the analysis.” The cases are considered a bellwether of the post-Kennedy Court’s commitment to racial justice.
In a 5-4 decision that Justice Elena Kagan characterized as “profoundly wrong,” the U.S. Supreme Court on February 7, 2019 permitted Alabama to execute a Muslim death-row prisoner, Domineque Ray (pictured), who had claimed that the state’s execution process discriminated against him because of his religion. Without explanation, the Court asserted that Ray had waited too long to challenge a provision in Alabama’s execution protocol that made a Christian chaplain part of the state’s execution team and prohibited other religious advisors from being present in the execution chamber. Ray argued that Alabama’s practice constituted an establishment of religion that discriminated against non-Christians. During federal court hearings on the constitutionality of the policy, Alabama withdrew its requirement that the chaplain be present in the execution chamber. However, it continued to reject Ray’s request that his imam—a prison-approved spiritual advisor—be permitted in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was likely to succeed on his religious discrimination claim, scheduled briefing in his case, and stayed his execution. The Supreme Court reversed, without addressing the constitutional issue.
Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dissented. Quoting prior Supreme Court decisions, Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.” In asserting that its execution process complied with constitutional guarantees of religious freedom, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to honor that promise and that Ray lost access to his imam three hours before the execution.
Ray was convicted and sentenced to death for the rape and murder of a 15-year-old girl. No physical evidence linked him to the crimes and a sole prosecution witness, Marcus Owden, implicated Ray. In 2017, Ray’s appeal lawyers discovered for the first time that Owden—who avoided the death penalty by testifying against Ray—had schizophrenia and was suffering from delusions and auditory hallucinations when he accused Ray of the rape and murder and testified against him. Ray’s lawyers argued that the prosecution’s deliberate suppression of this evidence, despite being aware of Owden’s mental illness, violated Ray’s due process rights and entitled him to a new trial. Without comment, the Supreme Court declined to review the claim and denied a stay. Ray was the second person executed in the U.S. in 2019 and the first in Alabama.