A new documentary airing on ABC tells the stories of Darlie Lynn Routier and Julius Jones, two death-row prisoners who have long argued they were wrongfully convicted. The Last Defense, produced by Oscar- and Emmy-winning actress Viola Davis and her husband Julius Tennon, focuses its first four episodes on Routier, a Texas woman convicted of killing her young son, then highlights Jones, a Black man who was a 19-year-old college student when he was arrested for the murder of a White businessman. Routier says an intruder broke into her home, killed her 5- and 6-year-old sons, and stabbed her while her husband and youngest son slept upstairs. Police concluded that Routier had staged the break-in and quickly named her as the suspect in her sons' murders. Her trial in the death of the younger child began only seven months after the murders and lasted only two days. Her attorneys say she did not receive adequate representation at trial, and that her trial attorney failed to counter forensic evidence against her because he had a conflict of interest, having previously represented Routier's husband in an unrelated case. Though a court has ordered DNA testing that could verify Routier's burglary story, bureaucratic delays have kept her waiting on death row. A June 19, 2017 status report on the testing said, “In May 2017, counsel in the Dallas County District Attorney (office) learned the materials that were supposed to have been transported to the Department of Public Safety for DNA testing, as the state trial court’s testing order had required, had never been transported to DPS.” Jones, who is on death row in Oklahoma, had been a high school athlete and honor student who did not fit the description of the shooter. Like Routier, he is seeking DNA testing that he believes will prove his innocence. Jones's case raises claims of ineffective counsel, and the series explores the role of race in his trial, as a young Black man accused of killing a White man in a suburban neighborhood. Jones has an appeal pending in the U.S. Supreme Court asking the Court to review the race discrimination in his case. Data from a 2017 study of race and the death penalty shows that, in Oklahoma, defendants convicted of killing White victims are more than twice as likely to be sentenced to death as those convicted of killing victims of color, and that among these White-victim cases, defendants of color were then nearly twice as likely as White defendants to be sentenced to death. The Last Defense airs Tuesdays on ABC.
Just under 54% of Americans say they support the death penalty and 39% say they are opposed, according to the results of a Pew Research poll released June 11, 2018. The poll—administered between April 25 and May 1, one month after President Trump called for the death penalty for drug trafficking—reflects a five-point increase in support for capital punishment, up from the record-low 49% recorded in Pew's 2016 poll. The results, which are in line with the 55% support level found by the Gallup organization in its October 2017 poll, are the second-lowest level of death-penalty support recorded since the U.S. Supreme Court allowed executions to resume in 1976. The Gallup findings marked a 45-year low in that poll. Support for the death penalty remained lowest, and opposition highest, among Democrats (35% in favor, 59% opposed), Blacks (36% in favor, 52% opposed), and people with postgraduate degrees (42% in favor, 56% opposed). The highest levels of support for capital punishment were reported among Republicans (77% in favor, 17% opposed), White evangelical Protestants (73% in favor, 19% opposed), and men (61% in favor, 34% opposed). Women and the youngest voters (aged 18-29) were evenly divided on the issue, with 1% more saying they supported the death penalty. The largest shift since 2016 was among those identifying themselves as political independents, with reported support increasing from 44% in 2016 to 52% this year. Pew does not report changes in party affiliation, and part of the shift with Independents may represent a change in those who self-identify as Independent, rather than changed beliefs on the part of individuals who previously called themselves Independents. Long-term trends, however, continue to show a clear decline in death-penalty support among all demographic groups. Support fell from 78% in 1996, to 64% in 2007, to 54% today. That decline has been sharpest among Democrats, whose support has dropped 36 percentage points since 1996, but support among Independents has fallen 25 percentage points during that period, and Republican support has fallen 10 percentage points. (Click image to enlarge.)
Georgia Supreme Court Hears First Death-Penalty Appeal in Two Years Amidst Sharp Decline in Death SentencesPosted: June 11, 2018
In the midst of a sharp decline in death sentences in the state, the Georgia Supreme Court on June 4 heard a direct appeal in a capital case for the first time in two years. In March 2018, Georgia reached the four-year mark since it had last imposed a death sentence, a dramatic change for a state that once handed down 15 death sentences in a single year. The decline in Georgia's death penalty exemplifies broader national death-penalty trends. In 1987, when Georgia handed down those 15 death sentences, 288 people were sentenced to death across the country. Thirty years later, in 2017, Georgia was completing its third consecutive calendar year with no death sentences, and the national total was just 39. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, credits the public's preference for life without parole (LWOP) sentences, saying the availability of LWOP has made a "huge difference." "[W]hen you sit down with victims’ families and discuss the process of a death-penalty case with all the pretrial hearings, then the years of appeals that follow, I have found that families like the finality of life without parole. It lets them get on with their lives," he said. Other prosecutors have found that the reluctance of juries to impose death sentences has made them less likely to seek death. Gwinnett County District Attorney Danny Porter called it "a self-fulfilling prophesy," noting, "As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort." The Georgia capital defender office's early intervention program has also reduced the number of death sentences by presenting prosecutors with reasons to decapitalize a case and reaching plea deals before a trial begins. Jerry Word, who leads that office, said, "The average time to resolve a case in early intervention has been less than eight months. The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county." Although prosecutors are seeking and juries imposing fewer and fewer death sentences, Georgia has continued to carry out controversial executions of defendants who likely would not be sentenced to death today. These include the December 2015 and March 2018 executions of Brian Keith Terrell and Carlton Gary, despite evidence that they may have been innocent; the May 2018 execution of Robert Earl Butts, Jr., although no Georgia jury has sentenced any defendant to death in the past decade in a case like his that involved a single victim and only one aggravating circumstance; executions of several men whose equally or more culpable co-defendants received lesser sentences; and prisoners who were intellectually disabled. The U.S. Supreme Court also has ruled against Georgia in three capital cases since 2016, Foster v. Chatman, involving race discrimination in jury selection; Tharpe v. Sellers, involving a juror who said he doubted whether black people had souls; and Wilson v. Sellers, which presented a procedural habeas corpus issue.
An attempt by Illinois Governor Bruce Rauner (pictured) to reinstate Illinois' death penalty by attaching it as an "amendatory veto" to proposed gun-control legislation has failed. Rather than accede to a plan that would condition stricter gun regulation upon reintroducing the death penalty for murders of police officers and any murder with more than a single victim, the state legislature rewrote the gun-control measure the governor had amended, dropping any mention of capital punishment. In May, Gov. Rauner used an amendatory veto—a power some governors are granted that permits them to amend legislation in lieu of an outright veto—to add death-penalty reinstatement to a bill that created a 72-hour waiting period for gun purchases. The governor's provisions would have created a new crime of "death penalty murder," potentially applicable whenever a police officer or more than one person was killed, subject to a "proof beyond all doubt." Rauner touted his changes, which also included additional gun control measures, as a comprehensive public-safety policy, but critics called it political grandstanding and state prosecutors objected to its adoption through the veto process without meaningful review and consideration. In a letter to the state House Judiciary-Criminal Committee, John Milhiser, the association's President, wrote: "there is no consensus of opinion on support for the death penalty" among Illinois prosecutors, but they agreed that the proposal "involves constitutional and legal concerns that cannot be evaluated in the brief time thus far allotted." Democratic state Rep. Jonathan Carroll, the gun-control bill's sponsor, said the governor had not consulted him about possible changes and had "hijacked my bill and put politics ahead of policy." The state house held a brief hearing on the bill on May 21, but did not act on it within the 15-day state constitutional window prescribed for consenting to an amendatory veto. On May 31, 2018, the final day of the legislative session, the legislature passed a clean version of the 72-hour waiting period bill, with no mention of the death-penalty proposal. Governor Rauner has 60 days from passage to take action on that bill.
In a ruling three dissenters criticized as an "outlier," and after having been rebuked by the U.S. Supreme Court in 2017 for ignoring the medical consensus defining intellectual disability, a sharply divided (5-3) Texas Court of Criminal Appeals (CCA) has upheld the death sentence imposed on Bobby James Moore (pictured) 38 years ago. On June 6, 2018, the CCA ruled that Bobby Moore is not intellectually disabled under the most recent clinical definition of the disability and may be executed, despite a finding by a trial court judge, a concession from the Harris County District Attorney's office, and briefs from numerous professional associations and disability advocates all concluding that Moore meets the diagnostic criteria for intellectual disability. Harris County prosecutors had filed a brief with the CCA, stating, "[a] review of the Supreme Court's decision and the record before this Court supports but a single conclusion: Bobby James Moore is intellectually disabled under current medical standards and ineligible for execution." In a forceful dissent, Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, catalogued the numerous groups that had concluded Moore satisfied the medical criteria for intellectual disability and wrote: "There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters. Today, in solitude, a majority of this Court holds that applicant is not intellectually disabled, and it denies his application for habeas relief." Moore initially presented his claim that he is intellectually disabled and therefore ineligible for the death penalty under the 2002 U.S. Supreme Court ruling Atkins v. Virginia to a Harris County trial court. After making credibility determinations about the lay and expert testimony it heard, that court agreed that Moore had intellectual disability as defined by contemporary medical diagnostic criteria. However, the CCA reversed, applying an idiosyncratic set of criteria known as "Briseño factors" (named after the Texas court decision that announced them), which were based on unscientific stereotypes, including the behavior of a fictional character from Of Mice and Men. Last year, in Moore v. Texas, the U.S. Supreme Court unanimously struck down Texas' use of that criteria, saying that a court's intellectual disability determination must be "informed by the medical community’s diagnostic framework." The Court criticized the manner in which the CCA assessed Moore's significant deficits in adaptive functioning, saying the CCA had improperly focused on the adaptive skills Moore possessed, rather than the clinically required assessment of his areas of diminished functioning. It also said the CCA had improperly based its judgment on Moore's adaptive deficits on how he was able to function in the highly regimented prison setting. The dissent emphasized that the majority again gave improper consideration to these factors in reaching its conclusion that Moore was not intellectually disabled, and said the court had misapplied current medical standards and failed to defer to the trial court's credibility rulings. As a result, the dissent said, the CCA "essentially continues to determine that mildly intellectually disabled people are subject to the death penalty in contravention of the Supreme Court’s holding in Moore."
A severely mentally ill Texas death-row prisoner who gouged out his eyes and ate one of them has asked a federal appeals court to allow him to appeal a lower court decision that upheld his conviction and death sentence and found that he had been competent to stand trial. Andre Thomas (pictured, left when arrested; center, after gouging out his right eye prior to trial; right, after gouging out and eating his left eye while on death row); is seeking review of his claims that his conviction and sentence must be overturned because he is severely mentally ill, received inadequate representation at trial and at sentencing, and his jury was tainted by racial bias. On June 5, a panel of the U.S. Court of Appeals for the Fifth Circuit heard oral argument on whether Thomas is entitled to a “certificate of appealability” ("COA"), a procedural prerequisite to obtaining appellate review of the issues in his case. Thomas was sentenced to death in 2005 for the murders of his ex-wife, their son, and his ex-wife’s daughter. His lawyers did not contest that he had committed the murders, but argued he was incompetent to stand trial. Thomas began hearing voices at age nine and began smoking marijuana and using alcohol during his childhood. His condition sharply deteriorated shortly before the murders, as he heard voices, repeatedly mutilated himself, put duct tape over his mouth for days at a time because he believed God had told him not to talk, and attempted suicide. While in jail awaiting trial, Thomas gouged out his right eye. In 2008, while on death row, he then gouged out and ate his left eye. Three psychologists who evaluated Thomas before trial said he had paranoid schizophrenia and was incompetent to stand trial. However, after just six weeks of treatment, a state hospital psychologist claimed that Thomas had been exaggerating the symptoms, changed his diagnosis to "substance-induced psychosis," and judged Thomas competent to be tried. Thomas’s trial lawyers did nothing to contest the competency finding—allowing the trial to proceed—failed to retain an expert to challenge the state’s diagnosis of drug-related psychosis, and failed to present significant evidence of his mental illness. On appeal, Thomas challenged his lawyers’ performance on these issues. Appeal counsel also argued that, as a result of trial counsel’s failures, Thomas’s jury was impermissibly tainted by racial bias. Thomas is Black; his ex-wife was White. Written questionnaires submitted by several jurors suggested this raised serious concerns for several of the jurors. One juror wrote that he opposed interracial marriages because he believed “the bloodlines shouldn’t be mixed.” Another expressed concern that “any children” of an interracial marriage “would not have a specific race to belong to.” A third said “interracial relationships were contrary to God’s intent.” Although Thomas’s trial counsel were aware of these responses, they asked no follow-up questions of these jurors, and accepted them to serve on the jury. Finally, Thomas’s current lawyers argued that subjecting people like him, with severe mental illness, to the death penalty is categorically unconstitutional. “There is a growing consensus against the execution of the severely mentally ill,” they wrote in a brief. “The leading legal and mental-health professional organizations—including the American Bar Association, the American Psychiatric Association, and the American Psychological Association—oppose the death penalty for the severely mentally ill.” [UPDATE: The Fifth Circuit granted Thomas a certificate of appealability permitting him to appeal the denial of his claims that his lawyers were ineffective in failing to challenge his competency, failing to present mitigating evidence relating to his mental illness, and failing to take action to keep jurors who expressed clear racial animus off his jury. The court denied his request for a COA on the constitutionality of executing prisoners who are severely mentally ill.]
A gay man on death row in South Dakota has asked the U.S. Supreme Court to review his case and to rule that it is unconstitutional for jurors to impose the death penalty based upon anti-gay animus and stereotypes. Charles Rhines (pictured) argues that South Dakota’s courts improperly refused to consider evidence—including an affidavit from one of his jurors that the jury “knew that he was a homosexual and thought that he shouldn’t be able to spend his life with men in prison”—showing that jurors in his case improperly based their death verdict on his sexual orientation. In 2017, in Buck v. Davis, U.S. Supreme Court Chief Justice Roberts wrote that “Our law punishes people for what they do, not who they are.” The Court said that a death sentence based on race would be “a disturbing departure from [that] basic premise of our criminal justice system” and ruled that Buck’s lawyer had been ineffective for presenting a witness whose testimony led to a death verdict based on “a noxious strain of racial prejudice.” The same year, the Court held in Peña-Rodriguez v. Colorado that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule [under a state rule of evidence] give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Rhines’ petition asks the Court to rule that states may not refuse to consider evidence of juror animus based on sexual orientation and to declare that death sentences based upon prejudicial homophobic stereotypes are unconstitutional. An affidavit submitted by one of the jurors in Rhines’ case said that there had been “lots of discussion of homosexuality” during deliberations and “a lot of disgust.” While they were deliberating, jurors asked the court whether Rhines would be allowed to “mix with the general inmate population,” “create a group of followers or admirers,” “brag about his crime to other inmates, especially new and[/]or young men,” “marry or have conjugal visits,” or “have a cellmate.” According to an affidavit, one juror advocated against incarcerating Rhines with other men for life imprisonment without parole because it “would be sending him where he wants to go.” Quoting Buck, Rhines’ lawyers wrote, “To allow a juror to vote for a man’s death sentence on the basis of anti-gay animus and stereotypes unquestionably violates the Sixth and Fourteenth Amendments, along with the foundational principle that ‘[o]ur law punishes people for what they do, not who they are. Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.’” South Dakota opposes Rhines’ request, arguing that the constitutional principles that prohibit inquiring into jury sentencing based on racial bias do not apply to “bias based on gender, alienage, or sexual orientation. ... No politician has ever proposed constructing a wall to keep homosexuals out of the country,” the state’s brief says. “No civil war has been fought over [sexual orientation]. No nationwide pogrom has been perpetrated for the enslavement or eradication of homosexuals.” The Court has scheduled a conference for June 14 on whether to review Rhines’ case. [UPDATE: On June 18, 2018, the U.S. Supreme Court denied Rhines’s petition for writ of certiorari, declining to review his case.]
Justice Sotomayor Criticizes Supreme Court For Failing to Intervene in Texas Death-Row Prisoner’s CasePosted: June 4, 2018
Over a strong dissent by Justice Sonia Sotomayor (pictured), the United States Supreme Court on June 4 declined to review the case of Texas condemned prisoner Carlos Trevino, who had argued that his lawyer was ineffective for failing to investigate and present mitigating evidence of Trevino’s brain damage and developmental delays from his extensive prenatal exposure to alcohol. Having failed to investigate, Trevino's lawyer presented only a single witness whom he met for the first time the day of the sentencing hearing. That witness, the defendant’s aunt, provided cursory testimony that Trevino was a high school drop out with an alcoholic mother who was on welfare. The Court’s denial of review let stand a split 2-1 decision of the U.S. Court of Appeals for the Fifth Circuit, which found counsel’s failure to present the fetal-alcohol-related evidence had not been not prejudicial because the “double-edged” character of the evidence could have led the jury to believe that Trevino would pose a continuing threat to society. Penning her sixth dissent this term in a death-penalty case the Court had declined to review, Justice Sotomayor—joined by Justice Ruth Bader Ginsburg—called the circuit court's decision “flagrant error.” The Court, she wrote, has “long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation.” In May 2013, the Supreme Court had reversed a prior ruling of the Fifth Circuit that had refused to review Trevino’s ineffectiveness claim, and remanded his case to the lower federal court to review the issue. After being presented new mitigating evidence that Trevino had fetal alcohol spectrum disorder caused by his mother drinking 18 to 24 cans of beer daily while pregnant, that he weighed 4 pounds at birth, and that his developmental delays (including wearing diapers until he was 8 years old) and cognitive impairments left him functioning at the level of a person with intellectual disability, the circuit court rejected Trevino’s claim. That court dismissed the mitigating value of the evidence, writing that Trevino’s impairments had contributed to his violent history. Justice Sotomayor wrote that, while Trevino had a past history of violence, the prosecution had already presented that evidence at trial, and the new evidence relating to Trevino’s fetal alcohol spectrum disorder—which the sentencing jury had never heard—was important in contextualizing that behavior. A failure to intervene in this case, Sotomayor said, leaves Trevino “subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.’ The Court's refusal to intervene is even more “indefensible” in this case, she wrote, because it “sanctions the taking of a life by the state.”
The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good.
A federal district court has ordered the Alabama Department of Corrections to release its lethal-injection protocol and unseal transcripts and pleadings related to the failed execution of Doyle Hamm. In a May 30, 2018, order, Judge Karon Owen Bowdre, Chief Judge of the United States District Court for the Northern District of Alabama said "how Alabama carries out its executions" is "a matter of great public concern," and ruled that the public's "common law right of access to the sealed records relating to Alabama’s lethal injection protocol" outweighed arguments to keep the records secret. Doyle Hamm was scheduled to be executed in Alabama on February 22. Despite Hamm’s repeated warnings that his terminal illness would make it impossible to establish IV lines, and after an initial stay of execution issued by Judge Bowdre was overturned by the appellate courts, Alabama unsuccessfully tried for more than two hours to set an IV before calling off the execution. Hamm had filed suit against the state seeking to bar Alabama from making a second attempt to execute him. The parties reached a confidential settlement in which Alabama agreed it would not execute Hamm, leaving questions about Alabama's protocol and execution process unanswered. Three media outlets—the Associated Press, The Montgomery Advertiser, and the Alabama Media Group—intervened, seeking public release of the protocol and judicial records. Alabama argued that providing the records to the media would be improper because "the media attempts to gin up public scandal" about the death penalty. The court rejected that accusation as unsupported by any facts, emphasizing that "Public discussion is not the same as public scandal. The public," she wrote, "needs to know how the State administers its laws; without such knowledge, the public cannot form an educated opinion on this very important topic." The court's order allows the state to redact from the records information that could reveal the identities of the individuals who participated in the execution. State officials have not indicated whether they will appeal.