Ohio Governor John Kasich (pictured, left) has commuted the death sentence imposed on Raymond Tibbetts (pictured, right) to life without parole, in response to a juror's concerns about the unfairness of the sentencing proceedings in the case. It was the seventh time Kasich had commuted a prisoner's death sentence. The July 20, 2018, news release announcing the commutation explained that Kasich had granted clemency because "fundamental flaws in [the] sentencing phase of [Tibbetts’s] trial … [had] prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty." Kasich had previously issued Tibbetts a reprieve, delaying his scheduled February 13 execution until October 17, after receiving a detailed letter from juror Ross Geiger asking him "to show mercy" to Tibbetts. Geiger's January 30 letter alerted the governor to serious flaws in the trial that misled jurors to sentence Tibbetts to death, including defense counsel's failure to present critical mitigating evidence about Tibbetts's horrific upbringing and the prosecution's misrepresentation of important details of Tibbetts's family history. "If I had known all the facts," Geiger wrote, "if the prosecutors had been honest and forthcoming about the horrors [Tibbetts] and his siblings experienced in the foster care system, and if we had an accurate understanding of the effects of Mr. Tibbetts' severe drug and alcohol addiction and his improper opioid prescription, I would have voted for life without parole over death." As part of his order granting the reprieve, Gov. Kasich directed the Ohio Parole Board to reconvene to hear Geiger's concerns and to reconsider Tibbetts's request for clemency. However, even after hearing from Geiger, the parole board voted 8-1 to recommend against clemency. In a statement by Tibbetts's lawyers praising the commutation, Erin Barnhart said, "Governor Kasich acted in the interests of fairness and justice by recognizing that Mr. Tibbetts’ death sentence was fundamentally unreliable. The jury was deprived of crucial information about the abusive and traumatic upbringing and the long-term impact it had on Mr. Tibbetts and his siblings. These circumstances provided compelling reasons for the exercise of clemency to correct the failures in the legal process in this case." Kasich also granted a reprieve to Ohio death-row prisoner Cleveland Jackson, pushing back his execution by nine months to "allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board." Jackson’s September 13 execution is now rescheduled for May 29, 2019.
A Louisiana federal court judge has ordered that executions in the state be stayed for at least another year. On July 16, 2018, in proceedings brought by Louisiana death-row prisoners challenging the state's lethal-injection protocol, U.S. District Court Judge Shelly Dick granted a request by state officials to extend by one year the temporary stay of execution that has been in effect in Louisiana since 2014. Jeffrey Cody, the state's lawyer in the case, told the court that continuing the lethal-injection litigation now would be "a waste of resources and time." He asked for the one-year extension "because the facts and issues involved in this proceeding continue to be in a fluid state." The request for an extension has triggered a partisan dispute among Louisiana state elected officials. Jeff Landry, the state's Republican Attorney General, blamed Democratic Governor John Bel Edwards for Louisiana's inability to execute prisoners and for facilitating a court ruling further delaying executions. In a July 18 letter to the Governor that Landry simultaneously distributed to the media, the attorney general said he was withdrawing his office from participating in the lethal-injection lawsuit and would no longer represent the Department of Corrections in that case. Landry claimed that Edwards was "unwilling[ ] to proceed with any executions" and called that "the biggest obstacle" to resuming executions in the state. Edwards called the attorney general's actions "political grandstanding," saying "[h]e issued this release today without trying to contact me at all." He said, "[i]n the one year since the state last requested a stay, which the Attorney General signed on and supported at the time, nothing has changed – the drugs are not available and legislation has not passed to address concerns of drug companies or offer alternative forms of execution." Louisiana currently authorizes the use of a one-drug protocol of the anesthetic pentobarbital, with a backup two-drug method consisting of the sedative midazolam and the painkiller hydromorphone. According to Department of Corrections spokesperson Ken Pastorick, the state does not have a supply of any of those drugs. The latest stay marked the fourth time since 2015 that the state has requested a delay of the lethal injection litigation. By the time Judge Dick's order expires on July 18, 2019, it will have been nearly ten years since the last execution in Louisiana, which was carried out on January 7, 2010. Bobby Jindal, a Republican, was governor from 2010 until January 2016, after the first federal stay of execution was in effect.
Against the wishes of the victim's family and amidst charges that the rejection of his clemency application was rooted in racial bias, Texas executed Christopher Young (pictured) on July 17, 2018. Young—who had been drunk and high on drugs when he killed Hashmukh Patel during a failed robbery in 2004—had repeatedly expressed remorse for the murder and had been mentoring troubled youth in an effort to prevent them from repeating his mistakes. The victim's son, Mitesh Patel, had urged clemency for Young, saying that he didn't want Young's children to grow up without a father, and that Young could be a positive influence by continuing his mentorship activities. Mitesh Patel, who had an emotional visit with Young the day before the execution, said the meeting left him with "a sense of sadness." "I really do believe Chris Young today is not the person he was 14 years ago," Patel said. "It's really unfortunate that the [pardons] board didn't hear our request for clemency. I feel sadness for his family. They're going to be walking down the same path my family has been on the last 14 years." On July 13, the Texas Board of Pardons and Parole voted 6-0, with one abstention, to deny Young's clemency application. Young's attorneys then filed a civil-rights suit in federal court, seeking a stay of execution on the grounds that the board's decision had been racially biased. Young's lawyer, David Dow, said family members of the murder victim have asked the pardons board six times this century to commute the death sentence imposed on the person convicted of murdering their loved one. "[O]f those six," Dow said, "three are black, two are Hispanic and one is white. Only in the case of the white guy [Thomas Whitaker] did they vote to recommend commutation.” U.S. District Judge Keith Ellison denied Young's request for a stay, but expressed extreme displeasure about the constricted timeframe for judicial review and the state's lack of concern about the possibility of racial bias. The case, he said, "dramatizes much of what is most troubling about the procedures by which we execute criminal defendants." He continued, "In a rational world, the Court would be able to authorize discovery and sift through the evidence obtained thereby. ... Here, ... the time frame is designed to render impossible intelligent and dispassionate judicial review. Applicable principles of law seem nonexistent." "Those engaging in race discrimination seldom announce their motivations," Judge Ellison said, and the timeframe made it "well-nigh impossible" for Young to prove his claims. "Ideally," Ellison wrote, Texas "would be determined to show that racial considerations had not infected the clemency proceeding. ... [H]owever, the State is eager to proceed with [Young's] execution without either side having any opportunity to explore the [issue]." In his final statement, Young said "l want to make sure the Patel family knows I love them like they love me. Make sure the kids in the world know I’m being executed and those kids I’ve been mentoring keep this fight going." The execution was the eighth in Texas and the thirteenth in the U.S. in 2018.
A new poll of likely voters in Washington State shows that Washingtonians are nearly 3 times more likely to prefer some form of a life sentence to the death penalty as punishment for defendants convicted of murder. The poll, commissioned by the Northwest Progressive Institute (NPI), was conducted by Public Policy Polling and released on July 12, 2018. It found that 69% of likely voters in the state preferred some version of a life sentence as punishment for people convicted of murder, as compared to 24% who said they preferred the death penalty. In a statement describing the poll results, NPI said "not a single subsample within the survey favored the death penalty… not even Donald Trump voters. ... What this tells us is that there is broad agreement across the ideological spectrum for getting rid of the practice of putting convicted murders to death." The poll asked respondents: "Of the following list of choices, which punishment do you prefer for people convicted of murder: life in prison with NO possibility of parole, life in prison with NO possibility of parole and a requirement to work in prison and pay restitution to the victims, life in prison with a possibility of parole after at least forty years, or the death penalty?" The most preferred option was life in prison without parole, plus restitution, which 46% of all respondents supported. An additional 10% preferred life without possibility of parole, while 13% favored life in prison with parole eligibility after at least forty years. 8% said they were not sure. Every political demographic preferred some version of a life sentence over the death penalty: 82% of respondents who identified themselves as Democrats favored one of the life options, as did 63% of Independents or supporters of a minor party, and 54% of Republicans. 48% of respondents who said they voted for Donald Trump preferred one of the life-sentencing alternatives, as compared with 46% who preferred the death penalty. In 2014, Gov. Jay Inslee imposed a moratorium on executions, saying that "[t]he use of the death penalty in [Washington] state is unequally applied." A bipartisan bill to abolish the death penalty passed the state senate and was approved in the House Judiciary Committee in 2017, but House Speaker Frank Chopp, a Democrat, did not bring the bill to a vote in the full House before the legislature adjourned. "Five Republicans stood with us in the Senate," said Reuven Carlyle, a Democratic senator from Seattle, "but the House leadership was still unwilling to bring it to the floor." Washington's Democratic Attorney General Bob Ferguson, who along with his Republican predecessor Rob McKenna have urged legislators to repeal the state's capital-punishment statute, said he was "not shocked by the numbers." He said the public mood about the death penalty has "been changing quickly" and "we need additional legislators to help out. ... This poll will further signal to them that not only is this the right thing to do, to abolish the death penalty law in Washington state, but is precisely what the people of Washington state want and expect their legislature to do." (Click graphic to enlarge.) Washington juries have not imposed any new death sentences in more than five years and the state last carried out an execution in 2010.
The U.S. Air Force has announced that the Guantánamo military commission’s USS Cole death-penalty judge, Air Force Colonel Vance Spath (pictured) is retiring, injecting new uncertainty into war court proceedings already steeped in chaos. In a one-sentence email to the McClatchey news service on July 5, an Air Force spokesperson confirmed that Spath “has an approved retirement date of Nov. 1, 2018,” well before the controversial trial proceedings in the capital prosecution of Abd al Rahim al Nashiri are expected to begin. Nashiri is accused of orchestrating the October 2000 attack on the U.S. Navy destroyer USS Cole that killed 17 American sailors, but his former lawyers describe him instead as an intellectually limited al-Qaeda foot soldier. Presenting evidence that the CIA admittedly subjected Nashiri to 14 years of “physical, psychological and sexual torture,” those lawyers unsuccessfully challenged Nashiri’s military detention and U.S. government efforts to try him in a military tribunal rather than in a civilian court. In October 2017, Brigadier General John Baker, the Chief Defense Counsel for the Military Commissions Defense Organization, found “good cause” to permit the entire civilian defense team assigned to Nashiri's case to withdraw amid allegations that the government had been illicitly eavesdropping on privileged attorney-client legal meetings. At the time, Baker advised war court defense attorneys that he had lost confidence in the integrity of “all potential attorney-client meeting locations” at Guantánamo. In November 2017, Spath convicted Baker of criminal contempt and sentenced him to 21 days of confinement for allowing the resignations. After two days of confinement, Harvey Rishikof, who served as the Convening Authority of all of the Guantánamo tribunals, released Baker from confinement, and a federal court later overturned Baker’s contempt conviction. The civilian resignations left Nashiri represented by a single military lawyer, Lieutenant Alaric Piette, who had graduated law school only five years earlier, does not meet the American Bar Association standards for death-penalty defense, and has never tried any murder case. During a January 2018 pretrial hearing in the case, Spath criticized Piette for seeking a continuance in the case until expert death-penalty co-counsel could be appointed, telling Piette to “engage in self help” by attending special training to become “more comfortable handling capital matters.” Media reports described an exasperated Spath as having delivered “a 30-minute monologue” expressing frustration over having his orders ignored, alleged inaction by Pentagon officials to help him return civilian counsel to the case, and uncertainty over his authority raised by Baker’s actions. In early February, U.S. Secretary of Defense Jim Mattis fired Rishikof without explanation, raising concerns of political interference in the already tumultuous legal proceedings. Then, on February 16, Spath halted all pretrial proceedings in the USS Cole case indefinitely. “We’re done until a superior court tells me to keep going,” he said. Spath said at the time that he was considering retiring from the Air Force.
Alabama will not execute eight death-row prisoners by means of the problematic lethal-injection protocol they have been challenging, but will instead carry out the executions using lethal gas. In a Joint Motion to Dismiss the prisoners' federal litigation over the state's execution protocol, filed on July 10, 2018, the parties agreed that the lawsuit had been rendered moot by the state's passage of legislation authorizing execution by nitrogen gas and the prisoners' election to die by nitrogen hypoxia. Alabama's lethal-injection process uses the controversial sedative midazolam, which has been implicated in numerous executions across the country that have been described as "botched." In October 2017, witnesses to Alabama's 35-minute execution of Torrey McNabb reportedly "expressed repeated concerns to each other that he was still conscious during the lethal injection." Alabama federal defender Christine Freeman, the director of the Alabama Post-Conviction Relief Project, testified on July 10 in separate litigation over Tennessee's lethal-injection process that she had witnessed McNabb grimacing and raising his arm up twenty minutes into the execution, well after the midazolam was supposed to have rendered him unconscious. Witnesses also reported that Alabama prisoner Ronald Smith heaved, coughed, clenched his left fist, and opened one eye during one 13-minute period of his 34-minute execution in December 2016. After Alabama added nitrogen gas as an option for carrying out the death penalty, the prisoners had a June 30 deadline to select gas as the method of their execution. In a nitrogen hypoxia execution, the prisoner breathes pure nitrogen, which displaces oxygen in the bloodstream, suffocating them. Experts characterized the prisoners' choice as preferring the unknown risks of execution by nitrogen gas to the known risks of execution by lethal injection. Nitrogen gas has never been used as a method of execution in the United States, but has been approved as an option by three states—Alabama, Mississippi, and Oklahoma. Of the three states, only Alabama leaves the choice of execution method to the prisoner. Mississippi and Oklahoma allow nitrogen executions only if lethal injection is held unconstitutional or is "otherwise unavailable," although Oklahoma has indicated that it is developing a lethal gas protocol to replace lethal injection. According to the federal defender's office representing the Alabama prisoners, their clients in the case, "and anyone else who elected the new method, cannot now be executed by lethal injection." Alabama still must develop a nitrogen-hypoxia protocol before it can carry out any executions using that method, and the prisoners have not waived their right to challenge that protocol. Federal public defender John Palombi, who represents the prisoners, said "While the best way to reduce the risks of botched executions would be to abolish the death penalty, if the death penalty does exist, it must be carried out in a constitutional manner with the respect and dignity that is required of such a solemn event." Alabama's lethal-injection protocol is the most secretive in the nation. Palombi encouraged the state to make the nitrogen hypoxia protocol public "so that the people of the state of Alabama know what is being done in their name."
In response to a lawsuit filed by pharmaceutical manufacturer Alvogen, Inc., a Clark County, Nevada District Judge has stayed the July 11, 2018, execution of Scott Dozier and issued a temporary restraining order barring Nevada from using drugs produced by Alvogen to execute Dozier. Saying Nevada had obtained a supply of the drug-maker's sedative midazolam “by subterfuge,” the multibillion-dollar generic drug company sued Nevada and the state Department of Corrections on July 10 to prevent the state from using its drugs in any execution. The lawsuit alleged that Nevada “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution and by “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug. In granting the restraining order, District Judge Elizabeth Gonzalez wrote that the misuse of midazolam in an execution would result in “irreparable harm to [Alvogen’s] reputation as a company that produces life-enhancing and life-saving drugs” and that the damage to its business reputation could adversely affect investor and customer relations. Alvogen has a policy not to accept direct orders from prison systems or departments of correction and “does not condone the use of any of its drug products, including midazolam, for use in state sponsored executions.” Alvogen's lawyers said that the company also had sent a letter in April to the governors, attorneys general, and prison directors of all of the death-penalty states in the U.S. expressing “in the clearest possible terms that Alvogen strongly objects to use of its products in capital punishment.” After Nevada's supply of another drug expired and it decided to switch to midazolam, prison officials bought the drug from pharmaceutical distributor Cardinal Health without disclosing its intended purpose. Alvogen said Nevada officials directed Cardinal Health to ship the drug to a state office more than 200 miles from the state prison “to further the implication that the midazolam was for a legitimate medical purpose.” Alvogen's suit is the second time a pharmaceutical company has taken legal action to stop its drugs from being used in executions. In April 2017, McKesson Medical-Surgical sued the state of Arkansas over the use of the paralytic drug vecuronium bromide, but ultimately was unsuccessful in blocking the state from using the drug. The Clark County court has ordered a status conference in this case for September 10.
A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.
A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.
Justice Anthony Kennedy's votes swung both to the right and to the left on death-penalty issues, professors Carol Steiker (pictured, l.) of Harvard Law School and her brother, Jordan Steiker (pictured, r.) of the University of Texas School of Law write in a commentary for SCOTUSblog, "but [he] declined to swing for the fences." The Steikers, who co-authored the acclaimed book, Courting Death: The Supreme Court and Capital Punishment, recount Justice Kennedy's nuanced interpretation of the Eighth Amendment and his mixed legacy as a swing vote on capital punishment. Though he was "a frequent supporter of restrictions on the availability of federal habeas review of capital cases, a skeptic of claims challenging the constitutionality of lethal injection and a relatively reliable vote against granting stays of execution in end-stage capital litigation," they write, he also was "the author of numerous opinions that broke new ground in the court’s Eighth Amendment jurisprudence." Most notably, he joined or authored landmark decisions that narrowed the scope of the death penalty, exempting defendants with intellectual disability, juvenile offenders, and those who committed non-homicide crimes. Those decisions on the Court's "proportionality doctrine" had systemic impact on the administration of the death penalty nationwide and paved the way for later decisions banning the use of mandatory life-without-parole sentences for juveniles. However, Justice Kennedy was content to grapple with the constitutionality of individual death-penalty practices one at a time, rather than addressing the constitutionality of capital punishment as a whole. Kennedy's role as a swing vote is illustrated by his change of heart on guarantees of individualized sentencing. In his early days on the Court, he voted to restrict defendants' rights to the consideration of mitigating evidence that could spare their lives, but nearly 20 years later, as the Court as a whole moved ideologically to the right, he shifted leftwards and joined majority opinions that broadly protected the rights to present and have capital sentencers meaningfully consider that evidence. In 1989, he provided the fifth vote in Stanford v. Kentucky to permit the use of the death penalty against offenders aged sixteen and seventeen. By 2005, citing an evolution of values in the United States, he authored the Court's 5-4 decision in Roper v. Simmons banning the death penalty for offenders under age eighteen. In 2015, Kennedy started an important discussion of the conditions of incarceration on death row, raising questions about the effects of long-term solitary confinement. Justice Stephen Breyer drew on Kennedy's concerns in his dissent in Glossip v. Gross, questioning the constitutionality of capital punishment.