The American Bar Association's Criminal Justice Section has released its annual report on issues, trends, and significant changes in America's criminal justice system. The new publication, The State of Criminal Justice 2018, includes a chapter by Ronald J. Tabak, chair of the Death Penalty Committee of the ABA's Section of Civil Rights and Social Justice, describing significant death penalty cases and capital punishment developments over the past year. Tabak reports that 2017 had the second lowest number of death sentences (39) imposed in the United States in four decades – trailing only the 31 death sentences imposed in 2016. Two-thirds of these death sentences were imposed in just five states (California, Arizona, Nevada, Texas, and Florida), with nearly one-third of those sentences emanating from just three counties (Riverside, California; Clark, Nevada; and Maricopa, Arizona). Quoting Duke University Law Professor Brandon Garrett, Tabak writes that “‘jurors are increasingly reluctant to impose [a death sentence]’… where effective defense counsel have presented evidence about defendants’ mental illness, childhood abuse, and other facts that some juries – but far from all – have viewed as mitigating.” The chapter notes that local voters in states including Alabama, Florida, Texas, Louisiana, and Pennsylvania have replaced prosecutors in counties known for their heavy use of the death penalty with new district attorneys who are “far more skeptical about seeking death sentences.” Tabak also notes that the number of executions in 2017 (23) was the second-lowest number since executions resumed in the U.S. in the late 1970s, and four states – Texas, Arkansas, Florida, and Alabama – accounted for 74% of all 2017 executions. After discussing issues raised by executions in 2017, such as Arkansas’s rush to execute eight prisoners in two weeks or particularly problematic lethal injections, Tabak highlights “geographic, racial, and economic disparities, and other arbitrary factors, in implementing capital punishment,” the growing movement to “preclude executions of people with mental illness in particular situations,” and other major legal and legislative developments that may affect death penalty litigation. Regarding the future of capital punishment, Tabak writes, “There is ever greater appreciation of serious problems with the death penalty’s implementation. Increasingly, the death penalty in practice has been attacked by people who have served in the judiciary or law enforcement, taken part in executions, written death penalty laws, or are politically conservative.” Ultimately, he concludes, “[O]ur society must decide whether to continue with a penalty implemented in ways that cannot survive any serious cost/benefit analysis.”
An Arizona appeals court judge has urged the state's supreme court to rule that the death penalty violates Arizona's state constitutional prohibition against cruel and unusual punishment. In an August 16, 2018 opinion dissenting from the Arizona Supreme Court's affirmance of death-row prisoner Jason Bush's conviction and sentence, Court of Appeals Judge Lawrence Winthrop (pictured)—sitting by designation in the case because of the recusal of one of the high court's justices—wrote that "[t]he death penalty not only inflicts unnaturally cruel punishment, but the application and implementation of the death penalty is, at best, arbitrary and capricious." According to Judge Winthrop, the dangers of wrongful convictions and death sentences, systemic "flaws in administering the death penalty, and our historic inability to devise a method to implement the death penalty free from human bias and error" require that the death penalty be declared unconstitutional. His opinion catalogued a range of problems in Arizona's application of capital punishment, including racial bias, wrongful convictions, and geographic disparities. The death penalty, he also wrote, "has been shown to ... impose unintended trauma on the victim’s family and friends, and to be cost prohibitive. ... [G]iven the continued reports that demonstrate defendants may be sentenced to death because of jurors’ inherent bias, and studies that demonstrate the death penalty has no identifiable deterrent effect, the answer to the question of whether the cost of the death penalty outweighs the societal benefit is a resounding, 'No.'” Judge Winthrop's dissent echoes many of the themes of—and frequently quotes from—U.S. Supreme Court Justice Stephen Breyer's dissent in Glossip v. Gross (2015), which questioned whether the death penalty, as applied today, violates the U.S. Constitution. "We simply can no longer ignore the seemingly inherent variants and problems associated with implementing the death penalty," Judge Winthrop wrote. "To continue to affirm the enforcement the death penalty, given what we now know, is to approve a punishment that is both cruel and unusual." The court majority in Bush's case upheld his conviction and death sentence, rejecting a variety of arguments that the trial and sentencing were constitutionally flawed. The majority "express[ed] no opinion ... [on] the validity of capital punishment under Arizona’s Constitution," reserving that judgment for a case in which "the issue [were properly] raised, developed, and argued." However, Bush's case, they wrote, was "not the appropriate case to address or decide" that issue.
Military Commission Bars Guantánamo Death-Penalty Prosecutors From Using Statements by 9/11 DetaineesPosted: August 20, 2018
A Guantánamo military commission judge has barred prosecutors from using statements five accused 9/11 plotters made to the FBI after they had been subjected to years of torture in CIA black sites. On August 17, 2018, the military judge, Army Colonel James L. Pohl (pictured), suppressed all use of the statements, ruling that restrictions prosecutors had placed on the ability of defense counsel to interview witnesses and investigate the torture made it impossible for the defense to meaningfully challenge the statements’ voluntariness and reliability. The defendants—including alleged attack mastermind Khalid Shaikh Mohammed—had been tortured over the course of three to four years of CIA interrogation in secret locations. The torture involved physical, sexual, and psychological abuse, including waterboarding; sleep deprivation; slamming the captives’ heads into walls; suspending them, shackled, in painful positions; forcing them to remain nude or to wear diapers; and rectal abuse. A 2014 report on CIA interrogations by the U.S. Senate Select Committee on Intelligence—known as “The Torture Report”—documents that Mohammed was subjected to numerous acts of torture, including sleep deprivation, "rectal rehydration," and being waterboarded 183 times in a single month. Knowing that it could not use statements obtained by the CIA during those interrogations, the government had what they termed a “clean team” of FBI interrogators—who did not know what the detainees had told their CIA counterparts—interrogate the detainees to obtain statements for use at trial. The defense lawyers argued they needed access to records and witnesses documenting the torture to be able to show that the FBI statements were a coerced by-product of the CIA interrogations. Although Guantánamo defense counsel have top-secret security clearance, the government provided the defense only with redacted records of the CIA detention and “clean team” summaries of what guards and doctors said had occurred during the CIA interrogations. Defense lawyers also were threatened with prosecution if they tried to locate and interview CIA agents and others who had information about the circumstances of their clients’ interrogations. Judge Pohl ruled that the government restrictions denied the defense the ability to properly “investigate, prepare and litigate motions to suppress the F.B.I. clean team statements” and “to develop the particularity and nuance necessary to present a rich and vivid account of the 3-4 year period in C.I.A. custody the defense alleges constituted coercion.” Prosecutors have until August 27 to decide whether to appeal the order to the U.S. Court of Military Commissions Review. An appeal would further delay the already decade-long pre-trial proceedings in the case.
When the U.S. Supreme Court banned the death penalty for juvenile offenders in 2005 in Roper v. Simmons, Justice Anthony Kennedy's opinion for the Court acknowledged the inherent arbitrariness in selecting an age cutoff. "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18," he wrote. "However, a line must be drawn." New neuroscience research suggests that the age-18 line may be too low. The court's opinion in Roper found that a national consensus had developed against subjecting juveniles to the death penalty based upon behavioral evidence that juveniles are less able to understand the consequences of their actions, more susceptible to peer pressure, and less able to control their impulses. One word missing from the Roper court's analysis of the age-18 death-penalty cutoff: "brain." An August 12, 2018 article for The Marshall Project by Beth Schwartzapfel explores the judicial system's response to new neurological research on brain development and whether 18 is the most appropriate age of eligibility for the harshest sentences, including the death penalty and mandatory life without parole. Brain research now clearly demonstrates that those portions of the brain that regulate impulse control and decision-making do not fully mature until well into a person's 20s, and defense lawyers have begun to argue that the same limitations on extreme punishments applicable to juveniles should apply to youthful offenders in “late adolescence,” between the ages of 18 and 21. Brain research by Temple University psychology professor Laurence Steinberg (pictured), a national expert in adolescent brain development, found that impulsive thrill-seeking and the need for immediate gratification peaks in late adolescence around age 19, before declining through an individual's 20s. In a 2017 case in which a Kentucky trial judge declared the death penalty unconstitutional for defendants charged with committing a crime before age 21, Steinberg testified, "Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper." Judge Ernesto Scorsone agreed, writing, "If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling." On February 5, the American Bar Association House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." In September 2017, the U.S. Supreme Court declined to review Ohio death-row prisoner Gary Otte's claim that the death sentence was unconstitutionally imposed in his case because he was only 20 years old at the time of the offense. Otte was executed September 13, 2017.
Nineteen years after having been sentenced to death in Schuylkill County, Pennsylvania, and five years after winning a new trial, Ronald Champney entered a no-contest plea to lesser charges in a plea deal that could soon set him free. Under the plea deal, which the court accepted on August 10, 2018, Champney agreed—without admitting guilt—that prosecutors had sufficient evidence for a jury to convict him of third-degree murder and possessing instruments of crime, and prosecutors withdrew charges of first-degree murder, burglary, aggravated assault, and other related offenses. The court resentenced Champney to a term of 10 to 20 years imprisonment, much of which he has already served. With death-penalty reversals and non-capital resentencings far outstripping new death sentences, Pennsylvania's death row has fallen by 100 in the last 16 years—from 247 in April 2002 to 147 on August 1, 2018—without any executions. 170 Pennsylvania death-row prisoners have overturned their convictions or death sentences in state or federal post-conviction proceedings and Pennsylvania's state courts have reversed an additional 100 death sentences on direct appeal. Champney's case is one of 139 of the cases reversed in post-conviction to have completed retrial or resentencing, and he is one of the 135 defendants (97.1%) to be resentenced to life or less or acquitted. Of the prisoners who were resentenced to death, only three are still on death row, and another died before his post-conviction challenges to that sentence were adjudicated. Champney was convicted and sentenced to death in 1999 for a murder that occurred in 1992. In June 2008, the trial court overturned his death sentence because his lawyer failed to object to the prosecution's presentation of victim-impact testimony that was not admissible under Pennsylvania law. The court also granted Champney a new trial, finding that his lawyer had been ineffective for failing to move to suppress statements police had improperly obtained from Champney while interrogating him without his lawyer being present. An equally divided Pennsylvania Supreme Court upheld the trial court's ruling in April 2013, setting the stage for the plea agreement. On June 25, the Pennsylvania state senate's Task Force and Advisory Committee on Capital Punishment issued a report describing the Commonwealth's death-penalty system as seriously flawed and in need of major reform, in part because of high rates of constitutional error and substandard defense representation at trial.
Fox Commentator: Oklahoma “Frontier Justice” Has Produced “Wretched Record” of Wrongful Capital ConvictionsPosted: August 15, 2018
Calling Oklahoma “the notorious home of ‘Hang ’Em High’ executions,” conservative commentator and Fox News contributor Michelle Malkin (pictured) has urged the state to adopt sytemic reforms to address its “wretched record on wrongful convictions.” Malkin says that despite 35 exonerations in the last 25 years—including 7 death-row exonerations—and a “reign of prosecutorial terror and forensic error by the late Oklahoma County District Attorney Bob Macy and rogue Oklahoma City police department crime lab analyst Joyce Gilchrist,” the state has failed to create a forensic science commission to investigates errors and professional misconduct by crime labs and forensic analysts and “not a single Oklahoma district attorney’s office has established an official mechanism to review tainted convictions.” In an August 8, 2018 commentary for the Creators Syndicate, Malkin warns that “‘Frontier justice’ costs too many citizens of all races, creeds, and backgrounds their freedom and their lives.” She says, “In the old days of the Wild West, vigilantes worked outside the judicial system to punish rivals regardless of their guilt or innocence. Today, outlaws operate inside the bureaucracy to secure criminal convictions at all costs.” In her commentary, Malkin highlights the death-penalty exonerations of Curtis McCarty and Robert Lee Miller, Jr., and current appeals attempting to free death-row prisoner Julius Jones. Notorious former Oklahoma County District Attorney Bob Macy withheld evidence from McCarty’s attorneys, and crime lab analyst Joyce Gilchrist, implicated in at least 11 wrongful convictions, falsified and destroyed forensic evidence. Gilchrist’s false testimony in the case included claims that hairs found at the crime scene matched McCarty’s and that his blood type matched the semen found on the victim’s body. They didn’t. Miller’s case was also tainted by bad forensics and a coerced false confession. Malkin points to the case of Julius Jones—recently featured in the documentary series The Last Defense—as emblematic of some of the ongoing problems in Oklahoma cases. Jones, who is seeking appellate review of evidence that supports his innocence claims, filed motions for discovery and a request for an evidentiary hearing in December 2017. Under instructions of a court clerk, they placed supporting evidence in a sealed envelope labeled “protected material.” That crucial evidence was not presented to the court and disappeared for six months until Jones’ investigator was able to uncover them herself in the clerk’s office. The court initially rejected Jones’ appeal, but will now reconsider, due to the clerk’s “mismanagement of the exhibits.” Another Oklahoma County death-row prisoner, Richard Glossip, was convicted and sentenced to death based on solely on the testimony of a 19-year-old who confessed to the murder and then implicated Glossip in exchange for a reduced sentence. No physical evidence linked Glossip to the crime, the teen gave investigators multiple contradictory descriptions of the murder before adopting police suggestions that Glossip was involved, and two witnesses who have come forward with evidence of Glossip’s innocence say they have been subjected to retaliation and intimidation by prosecutors. Oklahoma, Malkin says, “stands out for its decades of trampling due process, subverting public disclosure, perpetuating forensic junk science, manufacturing false accusations and enabling official misconduct.” She says that, given the state’s record and its recent “chilling” history of “horrific botched executions,” permitting the state to resume executions poses a “human rights crisis.” Silence in the face of that crisis, she says, “is complicity.”
On August 14, 2018, more than two decades after last putting a prisoner to death, Nebraska executed Carey Dean Moore (pictured). The execution—which used an untested drug formula of diazepam (the sedative Valium), fentanyl citrate (an opioid painkiller), cisatracurium besylate (a paralytic), and potassium chloride to stop the heart—took 23 minutes. It was the state's first execution ever by lethal injection. The first drug, diazepam, was administered at 10:24 am, and Moore, who had spent 38 years on death row, was pronounced dead at 10:47. Associated Press reporter Grant Schulte, a media witness who kept a timeline of events during the execution, reported that on three occasions prison officials dropped a curtain that prevented the witnesses from seeing portions of the execution, and that towards the end of the procedure Moore's face turned reddish, then purple. Joe Duggan, a journalist for the Omaha World-Herald, said the media witnesses could see the IV-line connected to Moore's arm, but could not see into the room where prison personnel controlled the flow of the drugs. "[I]t was not possible for us to know exactly when each drug was administered," he said. Brent Martin, reporting for Nebraska Radio Network, compared Moore's executions to the 13 executions he had previously witnessed in Missouri, saying "this was much longer." He also noted that the Nebraska team "approached it a bit differently" than had corrections officials in Missouri, where executions had "become routine." But, he said, "I didn't get any sense that it did not go other than how they planned it to go." Later, prison officials acknowledged the curtain had been lowered after the last drug was administered, preventing the reporters from witnessing Moore's reaction to that drug. Before the execution, Moore gave a written final statement in which he apologized to his younger brother, Don, for "bringing him down," and asked opponents of the death penalty to work on behalf of four men on Nebraska's death row who he said are innocent. Capital punishment has been a contentious issue in Nebraska. In 2015, the state legislature repealed the death penalty over the veto of Governor Pete Ricketts. Ricketts then sponsored a voter referendum to reinstate the death penalty, which succeeded in 2016. The state's last execution had been in December 1997, when Robert Williams was executed in the state's electric chair. The nearly 21-year period between executions in the longest time any state has gone between executions in modern U.S. history.
The Florida Supreme Court has halted the execution of Jose Antonio Jimenez (pictured), scheduled for August 14, 2018. The unanimous one-page order issued by the court on August 10 did not explain the reasons the justices granted the stay. However, Jimenez’s motion for a stay referenced 80 pages of police records that, Jimenez’s lawyer said, had not previously been provided to the defense. Those records—which were part of 1,000 pages of documents turned over to the defense two weeks before the scheduled execution—included hand-written notes by the investigating detectives that appear to contradict pre-trial testimony police had given in the case. The motion, filed by Jimenez's lawyer, Marty McClain, said the “previously unseen notes" contained "surprising and downright shocking information” that the lead detective (identified as a Detective Ojeda) and a second police investigator (identified as Detective Diecidue) gave “false and/or misleading” testimony “in order to facilitate Mr. Jimenez’s conviction” when they were deposed by Jimenez’s trial counsel. McClain told The News Service of Florida, “[t]he new documents show dishonest cops,” which has added significance in this case because Jimenez has maintained his innocence “and the conviction is premised on Ojeda telling the truth.” Jimenez also sought a stay pending the United States Supreme Court’s disposition of a Missouri death-penalty case, Bucklew v. Precythe, that could clarify the standard for determining when a state’s lethal-injection protocol is unconstitutional. Jimenez has argued that Florida’s use of the drug etomidate as a sedative during three-drug executions creates an unconstitutional risk of a torturous death. During Florida’s last execution, Eric Branch screamed when the execution drugs were administered. McClain said that expert testimony in another case had indicated that a quarter of executions using etomidate could result in prisoners screaming in pain. “Is it OK to have your condemned people scream 25 percent of the time?,” McClain said. “And what about the torture to those who are next, who know that 25 percent of the time people are in pain and screaming? Are they going to be the one?” The Florida Supreme Court has set a schedule for briefs to be filed in the case, with briefing concluding on August 28. The court will then decide whether it will hear oral argument in the case.
Over sharp dissents by justices of the U.S. and Tennessee Supreme Courts and lingering questions about the prisoner's history of mental illness and the efficacy of the state's lethal-injection protocol, Tennessee executed Billy Ray Irick (pictured) on August 9. He was the first person executed by the state since 2009. Justice Sonia Sotomayor described the process as a "rush to execute" and a descent into "barbarism." In the days leading up to the execution, the Tennessee Supreme Court and Tennessee Governor Bill Haslam rejected Irick's request for a stay or clemency. The state Supreme Court ruled on August 6 that Irick had failed to show his challenge to the execution protocol was likely to succeed on appeal, a requirement for the court to allow the lawsuit to proceed. Judge Sharon Lee dissented from the majority decision, writing, "The harm to Mr. Irick of an unconstitutional execution is irreparable. Yet the harm to the State from briefly delaying the execution until after appellate review is minimal, if any." Governor Bill Haslam declined to exercise his clemency power in Irick's case, saying that the judicial review of the case was "extremely thorough." Gene Shiles, Irick's attorney disagreed: "The truth is no facts relating to Billy’s state mind at the time of the offenses — including his hallucinations and talking to 'the devil' were ever considered by a single court on the merits. These facts, the most important to reasoned decisions as to guilt and punishment, were instead 'defaulted' and never weighed because they were determined to be untimely — raised too long after the trial." The U.S. Supreme Court denied a stay, but Justice Sonia Sotomayor strongly dissented from that denial, writing, "In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis. I cannot in good conscience join in this 'rush to execute' without first seeking every assurance that our precedent permits such a result. If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism." The Tennessean reported that Irick's execution was "certain to fuel a fierce national debate surrounding the drugs used to kill him, and if they amount to state-sanctioned torture." Federal public defender Kelley Henry said Irick exhibited signs of pulmonary edema during an execution that took more than twenty minutes. Henry said media witnesses had reported that “Mr. Irick ‘gulped for an extended period of time,’ was ‘choking,’ ‘gasping,’ ‘coughing,’ and that ‘his stomach was moving up and down.’ Witnesses described movement, including movement of the head, after the consciousness check. This means that the second and third drugs were administered even though Mr. Irick was not unconscious,” Henry said. Media reports indicated that the second and third drugs, a paralytic agent and potassium chloride, would cause a pain similar to drowning and being burned alive.
Less than a month after a Nevada court halted the execution of Scott Dozier in response to a lawsuit filed by generic-drug manufacturer Alvogen, another drug company has sued Nebraska, seeking to block the use of its medicines in an upcoming execution. The German-based pharmaceutical company Fresenius Kabi filed suit in Nebraska federal court on August 8, 2018 alleging that Nebraska intended to execute Carey Dean Moore on August 14 using drugs manufactured by the company that had been obtained "through improper or illegal means." The lawsuit said the company's distribution contracts with authorized wholesalers and distributors prohibit sales to departments of corrections, and it alleges that Nebraska obtained the drugs "in contradiction and contravention of the distribution contracts," most likely from an unauthorized supplier. Nebraska Attorney General Doug Peterson said the state's execution drugs “were purchased lawfully and pursuant to the State of Nebraska’s duty to carry out lawful capital sentences,” an assertion that cannot be verified because of the state's secrecy practices. The state has refused to identify the source of the drugs it intends to use in Moore's execution, but two of the drugs—the paralytic, cisatracurium, and potassium chloride, the drug used to stop the heart—are manufactured by Fresenius Kabi and only that company makes vials of potassium chloride in the size obtained by the state.
Nebraska is one of fifteen death-penalty states that have joined in an amicus curiae ("friend of the court") brief in the Nevada Supreme Court on August 6, 2018 urging the court to overturn a restraining order that has prevented Nevada from carrying out executions using supplies of the drug, midazolam, produced by the pharmaceutical company Alvogen. Alvogen's suit alleges that Nevada had obtained the midazolam "by subterfuge" and “intentionally defrauded Alvogen’s distributor” by concealing its intention to use Alvogen’s medicine in Dozier‘s execution. The company's pleadings accused Nevada of “implicitly ma[king] the false representation that they had legitimate therapeutic rationale” for buying the drug and covering up its true intention by having the drug shipped to a state office several hundred miles away from the prison. In addition to issuing the restraining order, the Nevada trial court stayed Dozier's July 2018 execution. Like Fresenius Kabi, Alvogen alleges that the use of its products in executions would damage its corporate reputation and adversely affect investor and customer relations. The amicus brief was filed by 15 of the 30 other states that authorize capital punishment, all with Republican attorneys general—Arkansas, Alabama, Arizona, Florida, Georgia, Idaho, Indiana, Louisiana, Missouri, Nebraska, Oklahoma, South Carolina, Tennessee, Texas, and Utah. The nine death-penalty states with Democratic attorneys general did not join the pleading, nor did six other states with Republican attorneys general. The pleading claims, without providing any factual support, that Alvogen's lawsuit is the "latest front in the guerilla warfare being waged by anti-death-penalty activists and criminal defense attorneys to stop lawful executions." The state officials warn that, if the Nevada Supreme Court allows Dozier's stay of execution to stand, activists will "flood" the courts in other states with similar "meritless" challenges. In 2017, the drug distributor McKesson sued Arkansas to prevent the state from using a supply of the paralytic drug, vecuronium bromide, in executions, alleging that the state had deliberately misled the company to believe that the drug would be used for legitimate medical purposes. The brief asserts that "Alvogen’s meritless claims mirror those rejected by the Arkansas Supreme Court" in McKesson case. However, court records reflect that the Arkansas Supreme Court actually returned McKesson's case to the trial court for further evidentiary development and the case remained active until the expiration of the state's supply of vecuronium bromide rendered the case moot in the Spring of 2018.