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BOOK: Slavery and the Death Penalty

Posted: September 6, 2018

"It is widely recognized that capital punishment in the United States of America continues to be imbued with the legacy of slavery" and, to end it, American death-penalty abolitionists "should draw on the radicalism of [anti-slavery] abolitionists." So argues British death-penalty scholar and abolitionist Dr. Bharat Malkani, a Senior Lecturer at the Cardiff University School of Law and Politics, in his new book, Slavery and the Death Penalty: A Study in Abolition. Malkani's book explores the historical and conceptual links between slavery and capital punishment and the efforts of abolitionist to end both practices. His book contrasts the discourse of conservative and pragmatic anti-death penalty activists, which he says accepts the legitimacy of the institutional machinery of capital punishment and the moral values of harsh retributivism, with arguments that "emphasize the inherent dignity of the person facing execution." He says the lessons of history suggest that the latter, "expressly rooting anti-death penalty efforts in the idea of dignity," is more effective. Malkani looks closely at the practical and psychological links between slavery and capital punishment, which he finds to be clear and inescapable. "The imposition of death sentences discriminates along racial lines and is disproportionately imposed on the poor, just as slavery was marked by divisions over race and class. Executions have occurred mainly, albeit not exclusively, in former slave states — the same places that witnessed the highest frequencies of lynchings. And," he writes, "capital punishment, like slavery, is predicated on the notion that some people do not belong to the political and moral human community." Malkani analogizes contemporary "conservative" and "pragmatic" anti-death penalty arguments that portray the death penalty as a failed government program or that focus on the economic costs of capital punishment to the approach of those anti-slavery advocates who argued for incremental legal restrictions on slavery or called for the gradual emancipation of only some slaves. He argues that the morality-based approach of more radical slavery abolitionists — emphasizing that the inhumanity of slavery violated the dignity of the slave, the slaveholder, and the community as a whole — has greater social impact. He believes that the arguments of many modern-day anti-death penalty activists focus too narrowly on the death penalty, giving too much credence to life in prison without parole as a viable option. These arguments, he writes, ignore the broader social injustices omnipresent within the United States' administration of the criminal laws. "[C]ontemporary anti-death penalty efforts," he writes, "must be radical in their visions, in order to inspire much-needed changes to the tendency to view some people’s lives as less valuable than others."

 

Louisiana Death-Penalty Case Tainted by Judge’s Conflict of Interest Returns to U.S. Supreme Court

Posted: September 5, 2018

A Louisiana death-row prisoner is asking the U.S. Supreme Court to review the constitutionality of his conviction and death sentence a second time based upon allegations that the trial judge had an undisclosed conflict of interest. In his petition to review his conviction for a triple-murder involving the death of a New Orleans police officer, Rogers Lacaze (pictured) argues that his right to due process was violated when his trial judge, Frank Marullo, failed to disclose that the judge had signed a court order releasing the probable murder weapon to Lacaze's co-defendant and that Marullo was a witness in a New Orleans Police Department investigation into the circumstances in which the weapon had been released. Judge Marullo then won re-election by a margin of 51%-49%, after running a campaign saying he was “tough on crime” and had sentenced “Lacaze to die by lethal injection.” Lacaze was convicted of a triple murder involving a 9mm gun his co-defendant—police officer Antoinette Frank—had obtained from the New Orleans Police Department property and evidence room shortly before the killing. The order releasing the gun to Officer Frank bore Judge Marullo's signature, and Marullo presided over Lacaze and Frank's trials. Before being assigned to the trials, Marullo was interviewed by police investigating the crime. The judge claimed his signature had been forged, but the officer in charge of the evidence room said he had personally given the form to Marullo's clerk, who took it into chambers and returned with the signed order. Marullo subsequently refused a police request for a second interview on the grounds that he was presiding over the trials. Marullo did not inform Lacaze of his connection to the murder weapon, even after Lacaze testified that he was not involved in the murders, but that Frank had told him she was going to get a gun from the evidence room. When Lacaze's attorneys later learned of Marullo's connection to the weapon, they filed an appeal challenging his failure to recuse himself. The Louisiana Supreme Court dismissed the appeal. In 2017, Lacaze petitioned the U.S. Supreme Court for the first time, and the Court vacated the Louisiana Supreme Court's decision and remanded the case for further review based upon its March 2017 decision in Rippo v. Baker, which found “an unconstitutional potential for bias” requiring recusal when a trial judge was being criminally investigated by the same prosecutor's office that was prosecuting the defendant. On remand, the Louisiana court once again rejected the appeal, saying that Lacaze had not shown a “probability of actual bias” by Judge Marullo against any specific party in the case. Lacaze's petition is supported by friend-of-the-court briefs by ten former state and federal trial and appellate court judges, experts in judicial ethics and judicial elections, and more than thirty associations of criminal defense lawyers. The amicus brief of the former judges warns that the Louisiana court's decision “provides license not simply to preside over a capital murder case despite personal connections to the underlying facts—but to withhold disclosure of those connections entirely.” Allowing this type of “startling” judicial conflict of interest, they write, “threatens the legitimacy of not just Mr. Lacaze’s conviction and sentence, but of the administration of justice.” Writing for the American Constitution Society blog, Lawrence J. Fox, counsel of record on the brief filed by the Ethics Bureau at Yale Law School, said “well-established constitutional due process requirements make clear that Judge Marullo should have recused himself” from the case. “Fair and impartial judges are the foundation stone of fair courts, fair trials, and just results,” Fox wrote. “There’s too much at stake in Mr. Lacaze’s case for the U.S. Supreme Court not to intervene.” Briefing in the case was completed on August 27. The Supreme Court is scheduled to rule later this month on whether to hear the case.

 

Nebraska Supreme Court Hears Challenge to Three-Judge Death Sentencing

Posted: September 4, 2018

The Nebraska Supreme Court heard oral argument on August 30, 2018 in a case challenging the constitutionality of the state's capital sentencing procedure, which requires a three-judge panel to decide whether to impose a death sentence. Attorneys for death-row prisoner John Lotter said the state's three-judge sentencing violates the Sixth and Fourteenth Amendments as applied to Florida's capital sentencing law in Hurst v. Florida. In that case, the U.S. Supreme Court found that the Sixth Amendment required “a jury, not a judge, to find each fact necessary to impose a sentence of death.” “Nebraska is the only active death penalty state without a sentencing structure that allows a jury to make the central findings of fact to impose a death sentence,” said Rebecca Woodman, an attorney representing Lotter. Under Nebraska law, a jury determines whether aggravating factors are present, deciding if a defendant is eligible for the death penalty, but judges weigh those factors against mitigating factors and decide whether the defendant receives a death sentence or a sentence of life in prison. James Smith, solicitor general for Nebraska Attorney General's Office, argued that the sentencing scheme is constitutional, saying, “Finding aggravating factors is the fact that’s significant, the fact that juries must decide. The aggravating factors are what makes the defendant death-eligible.” Woodman disagreed: “Nebraska’s statutory scheme is unconstitutional because it bases a death sentence not on a jury’s verdict, but on judge-only findings of critical facts necessary to impose a sentence of death.” She also argued that the ruling should be applied retroactively, granting new sentencing hearings to everyone on Nebraska's death row. 

 

Cases in Sudan, Saudi Arabia Illustrate Use of Death Penalty Against Women to Enforce Gender Norms

Posted: August 31, 2018

In high-profile cases in Sudan and Saudi Arabia, human rights advocates are protesting the threatened use of the death penalty against women for resisting oppression. In the Sudan, prosecutors are seeking to reinstate the death sentence against Noura Hussein (pictured), a teen girl forced into marriage who killed her abusive husband as he tried to rape her. The Saudi Arabian government is seeking the death penalty against Israa al-Ghomgham, an activist who has sought equal rights for Shiite Muslims. The two cases illustrate a worldwide pattern in the use of capital punishment against women who defy cultural gender norms. Hussein, now 19 years old, was forced into marriage at age 16. She fled the marriage, but was tricked into returning by her own family. When she refused to have sex with her husband, he enlisted several cousins to hold her down while he raped her. When he attempted to rape her again the next day, she stabbed him to death. Hussein's family turned her in to the authorities, and she was tried and sentenced to death in May 2018. After an international campaign on her behalf, a Sudanese court reduced Hussein's conviction to manslaughter, sentenced her to five years imprisonment, and fined her. State prosecutors are appealing the decision and seek to have her death sentence reinstated. Yasmeen Hassan of the human rights group Equality Now called the Sudan "an extremely patriarchal place [where] gender norms are very strongly enforced." She said Sudan permits arranged marriages for girls as young as age 10, "there's legal guardianship of men over women, women are told you have to walk a straight and narrow line and don't transgress." Amnesty International spokesperson Seif Magango called the use of the death penalty against Hussein "an intolerable act of cruelty." Condemning a girl for "killing her rapist husband in self-defence," she said, demonstrates the "failure of the authorities to tackle child marriage, forced marriage and marital rape." Hussein's family has fled their home, fearing reprisal from the victim's family. The victim's father told a Sudanese newspaper that, even if Hussein is executed, they will still seek revenge, because she killed a man, and women are not equal to men. Saudi Arabia, known for its oppression of women, has recently begun a crackdown on women's right's activists. While the Kingdom has often used the death penalty against political dissidents, trying them in terrorism courts notorious for the denial of due process, Human Rights Watch reports that al-Ghomgham is the first female activist to face execution for her human rights-related work. “Any execution is appalling," said Sarah Leah Whitson, Middle East director at Human Rights Watch, "but seeking the death penalty for activists like Israa al-Ghomgham, who are not even accused of violent behavior, is monstrous.” The organization warned that the action sets a "dangerous precedent for other women activists currently behind bars."

The pattern of executing women who break gender expectations has been identified and examined by death-penalty researchers. Dr. Mary Atwell, author of three books on capital punishment, explained: "[F]or the state to put somebody to death in our name, we have to see them as ‘other’ in some way ... and I think that’s even more true with a woman. You have to see her as not just doing things that are violent and cruel, but as particularly outside the expectations of what a woman should do.” That is why, she says, in cases in the U.S. in which women are sentenced to death and executed, prosecutors and the press "played up to a great extent" that "these were women who stepped outside the norms of gendered expectations."

 

Cincinnati's Aggressive DA and a Vatican Priest (His High School Classmate) Spar About the Death Penalty

Posted: August 30, 2018

Pope Francis' recent declaration committing the Catholic Church to opposing capital punishment in all circumstances has produced an unusual public war of words about the practices of Catholic public officials in one of the country's most aggressive death-penalty counties. Hamilton County, Ohio, has produced more death sentences and executions than any other county in Ohio, and is one of the 2% of U.S. counties reponsible for a majority of death sentences and executions in the United States. Its County Prosecutor, Joe Deters (pictured, left) is Catholic but, while pursuing a death sentence in the resentencing of Anthony Kirkland, made dismissive comments about Pope Francis' declaration that the death penalty is "inadmissible." "My dear friends who are priests don't understand what we're dealing with," Deters said. "There is evil in this world and there comes a point where society needs to defend itself." Those comments provoked a rebuke from Rev. Paul Mueller (pictured, right, with Pope Francis), vice director and superior of the Jesuit community at the Vatican Observatory, and a high school classmate of Deters. In a letter to the prosecutor, Father Mueller wrote, "I am disappointed, embarrassed, and scandalized that you, not only a Catholic but also a fellow alumnus of St. Xavier High School, have used the platform of your public office to oppose and confuse the moral teaching of the Church in so open a fashion." Deters reiterated his stance in comments to WLWT television on August 21, saying, Pope Francis is "in an ivory tower, God bless him. ... I'm just telling you they don't know what we're dealing with." St. Xavier High School, which both Deters and Mueller attended, weighed in on the issue, as the school's president, Tim Reilly, wrote, "St. Xavier is a Catholic school, and we intentionally and specifically follow the teachings of the Catholic Church. The Church teaches that people are obliged to follow a well-formed conscience. One of the key components of a well-formed conscience is a serious consideration of and reflection upon Catholic moral and social teaching." Kirkland was resentenced to death on August 28. At his sentencing, Judge Patrick Dinkelacker, also a Catholic, tangentially referred to the religious debate about capital punishment, saying, "As a person who morally believes in the sanctity of life, to judge another to determine if the imposition of the death penalty is appropriate is not a duty I take lightly. ... I took an oath to follow the law and I will do that. To do otherwise, is morally, legally, philosophically and theologically wrong."

 

Congressional Black Caucus Asks Oklahoma Governor to Review Case of Julius Jones

Posted: August 29, 2018

The Congressional Black Caucus has urged Oklahoma Governor Mary Fallin to review the case of death-row prisoner Julius Jones (pictured) and to use her authority to correct what it characterized as his "wrongful conviction." In an August 21, 2018 letter to the Governor, the Black Caucus — an organization of African-American members of the U.S. House of Representatives — expressed its "deep concerns" about racial bias in the application of the death penalty in Oklahoma and the risk of executing an innocent person. Jones' case, it said, fell "[a]t the nexus" of those issues. Jones, an African-American honor student who was co-captain of his high school football, basketball, and track teams, was convicted and sentenced to death for the murder of a white businessman. His conviction relied heavily on the testimony of his co-defendant, Christopher Jordan, who avoided the death penalty and was given a substantially reduced sentence in exchange for his testimony against Jones. According to the letter, "[t]wo prisoners even heard Mr. Jordan bragging that he set-up Julius, and that he would get out of prison in 15 years in exchange for his testimony." Jones did not fit the description of the murderer given by the victim's sister, but Jordan did. However, Jones' lawyers, the letter emphasized, had no capital trial experience, "failed to show the jury a photograph of Mr. Jones, taken a few days before the shooting ... that [proved] he could not be the person who the victim's sister described," and "did not put on a single witness to testify during the guilt-innocence phase of his trial." The letter said Jones' case also "was plagued by a racially charged investigation and trial," and his sentence was tainted by the "profound inequity in the application of the death penalty based on race." Jones' current attorneys recently uncovered evidence that one of his jurors used a racial slur during the trial. "One juror reported telling the judge about another juror who said the trial was a waste of time and 'they should just take the [n-word] out and shoot him behind the jail,'" the letter states. The Oklahoma Court of Criminal Appeals has agreed to consider this new evidence, and Jones also has a petition pending before the U.S. Supreme Court. Relying on a 2017 study on race and death sentencing in the state, that petition argues that Oklahoma's death penalty unconstitutionally discriminates on the basis of race. One key finding of that study, the letter said, is that "a black defendant accused of killing a white male victim in Oklahoma is nearly three times more likely to receive a death sentence than if his victim were a non-white male." The congressmembers also urged Gov. Fallin to address a range of systemic reforms suggested by the Oklahoma Death Penalty Review Commission, including reforms to eyewitness identification procedures, forensic science reform, regulating the use of informants, and recording custodial interrogations. "Major reform is needed to the criminal justice system to ensure that the fair and impartial process called for by the Death Penalty Study Commission becomes a reality," they write. "Given this backdrop, we strongly urge you to use the power of your office to put these recommended reforms in place."

 

Amnesty International Issues Report on the Death Penalty in Florida

Posted: August 28, 2018

A new report by Amnesty International says Florida's approach to redressing the nearly 400 unconstitutional non-unanimous death sentences imposed in the state has deepened its status as an outlier on death-penalty issues by "add[ing] an extra layer of arbitrariness to [the state's] already discriminatory and error-prone capital justice system." The report, released on August 23, 2018, examines the impact of Florida's reponse to U.S. and Florida Supreme Court rulings in Hurst v. Florida and Hurst v. State that overturned the state’s capital sentencing statute. That response, Amnesty said, would permit the execution of more than 170 prisoners whom the state acknowledges were sentenced to death under unconstitutional sentencing procedures. Executing those prisoners, Amnesty wrote, will violate "well-established" international human rights law requiring that any person "convicted of a capital offence must benefit when a change of law following charge or conviction imposes a lighter penalty for that crime." In 2016, the Florida Supreme Court struck down a state practice that permitted judges to impose a death sentence despite the recommendations of one or more jurors that a life sentence should be imposed. However, the court then declined to enforce that ruling in cases that had completed direct appeal before the U.S. Supreme Court announced in Ring v. Arizona in June 2002 that capital defendants had a right to have a jury decide all facts that were necessary to impose the death penalty. The Amnesty International report described the Florida court's refusal to enforce the constitution in cases in which it acknowledged that constitutional violations had occurred as "fear of too much justice." "Finality won out over fairness when the Florida Supreme Court decided the Hurst retroactivity issue," the report said. The report highlights the cases of prisoners with serious mental illness, those with "actual or borderline intellectual disability," youthful offenders with backgrounds of severe deprivation and abuse who were condemned in unconstitutional sentencing trials, and the wrongful impact of race on sentencing decisions, and argues that Florida's refusal to review these cases is not only arbitrary, but also violates international human rights norms and the constitutional principle that the death penalty is supposed to be reserved for "the worst of the worst" cases. The report also discusses Florida's long history of employing unconstitutional death-penalty practices that were later overturned by the United States Supreme Court. It spotlights the case of James Hitchcock, who was unconstitutionally sentenced to death four times for a crime he committed at age 20. The first three times, his death sentence was overturned, including a landmark U.S. Supreme Court ruling striking down Florida's statutory restriction on the mitigating evidence the sentencing judge and jury could consider. The fourth time, he was sentenced to death after a non-unanimous jury vote, but was denied review of that constitutional violation. "The death penalty is no way to impart justice," said Amnesty's Americas Director, Erika Guevara Rosas. "Florida and all other states where the death penalty is still in use must impose immediate moratoriums on executions until they can end this cruel practice once and for all." In the meantime, the report urges all officials to “ensure an end to the use of the death penalty against anyone with intellectual disability or mental disability,” “ensure that all capital case decision makers are made fully aware of the mitigating evidence surrounding youth and emotional and psychological immaturity,” and “facilitate a public education campaign to raise awareness across Florida of the costs, risks and flaws associated with the state’s death penalty.”

 

New Study Finds Link Between Perception of Resource Scarcity and Support for Death Penalty

Posted: August 27, 2018

A new study by an interdisciplinary team of Arizona State University psychology researchers has found a link between the actual and perceived scarcity of resources and support for capital punishment. The study, currently in press but available online on August 10 in the science journal, Evolution and Human Behavior, discovered that countries with greater resource scarcity were more likely to have a death penalty, as were U.S. states with lower per capita income. Building on theories of human evolution and evidence of how humans evolved to deal effectively with different environments, the ASU research team of social psychologists, evolutionary psychologists, and legal scholars theorized that psychological factors related to the abundance or scarcity of resources could influence individual and social views of punishment. Keelah Williams, the lead author of the study who is now an assistant professor of psychology at Hamilton College in New York, said “[t]o understand why people feel the way they do about the death penalty, we looked beyond individual differences to features of the environment that might affect people’s punishment attitudes, sometimes in ways outside of their conscious awareness.” The researchers first looked to see whether they could find a relationship at the societal level between punishment and abundance or scarcity and, after finding that link, conducted two experiments to test that relationship at the individual level. They found that study participants who had been shown information and images of economic hardship tended to view the death penalty more favorably than those of the same political ideology and socioeconomic status who had been given information and images about economic prosperity. They next hypothesized that resource scarcity affects the death penalty by leading people to see offenders as posing greater risks to society and asked questions to see whether there was a relationship between scarcity, tolerance of recidivism, and the death penalty. They found that when they asked study participants their views on questions such as “Keeping convicted murderers alive is too great a risk for society to take” or “The death penalty is the only way to ensure a convicted murderer will not murder again” before asking them about the death penalty itself, respondents expressed greater support for capital punishment. Law professor Michael Saks, the senior author of the study, said the findings suggest that perceptions about economic security influence the way a group deals with individuals who threaten the safety of others in the group. Arizona State University’s Psychology Department Chair Steven Neuberg said the study findings "help support the view that aspects of contemporary psychology rest on a deep, evolved rationality. They also have more immediate, practical implications: The ability of scientific psychology to better understand the peripheral factors that shape beliefs about the death penalty may be, for some, the difference between life and death."

 

Amidst Nebraska Execution-Secrecy Controversy, California Judge Lets Execution-Access Lawsuit Proceed

Posted: August 24, 2018

As lawyers for Nevada told their state supreme court that a controversial Nebraska execution had been carried out without problems, a federal judge issued a ruling allowing a lawsuit to proceed that would force California to allow media witnesses to observe executions in that state in their entirety. The developments in the cases in the two states highlight an ongoing controversy over the lack of transparency and accountability in recent lethal-injection executions. Attorneys representing the Nevada Department of Corrections said in a court filing on August 16, 2018 that media witnesses to Nebraska's four-drug execution of Carey Dean Moore, which used three of the drugs Nevada plans to use to execute Scott Dozier, "reported no complications, only some coughing before Moore stopped moving." They failed to report to the court that the witnesses did not see when the lethal-injection chemicals had been administered or what lethal-injection expert, Fordham Law Professor Deborah Denno, called "[t]he parts of the execution that would be most problematic" - when the IV lines are set and the period after the final drug is administered. Those occurred behind drawn curtains. Contrary to what Nevada's lawyers told the court, the Lincoln Journal-Herald, compiling witness observations to the execution, wrote: "Nebraska witnesses actually reported Moore coughed, his diaphragm and abdomen heaved, he went still, then his face and fingers gradually turned red and then purple, and his eyes cracked open slightly. One witness described his breathing as shallow, then deeper, then labored." Nebraska College of Law Professor Eric Berger, who studies the death penalty, called the eyewitness reports "somewhat troubling." He said, "It's certainly possible that everything went smoothly and humanely, but it's also possible that it didn't ... We just don’t have enough information to make that determination." Similar concerns with the ability of the public to view potentially problematic executions animated the federal court's ruling on the California execution process. Noting that the public has a First Amendment right to “view executions from the moment the condemned is escorted to the execution chamber," federal district court judge Richard Seeborg denied a motion filed by lawyers for the California Department of Corrections seeking to dismiss a lawsuit challenging administrative rules that bar the public from viewing the preparation and injection of lethal drugs and to keep the curtain open through the completion of the execution process. Christopher S. Sun, who represented media plaintiffs The Los Angeles Times, KQED, and the San Francisco Progressive Media Center, called public access to executions "critical to informing our national dialogue about the death penalty" and said the suit was filed to ensure that the public knows what actually happens during an execution. Sun said current California state regulations afford execution personnel discretion during the execution to draw the curtain on the window through which witnesses see the execution and require the curtain to be closed and the public address system turned off if three doses of the lethal-injection drugs fail to kill the prisoner, denying important information to the public in a matter of heightened public interest. In allowing the suit to proceed, the court said the media had made a threshold showing that it was entitled to observe prison personnel "preparing the chemicals[,] ... the process of administering the chemicals," the entire execution itself, and "the administration of medical care ... in the Lethal Injection Room" in the event of a failed or botched execution. The California lawsuit is not the first of its kind. In 2016, an Arizona federal court ruled that the First Amendment affords the public the right to view executions in that state in their totality.

 

Article Considers “Frontier Justice” and the West's Legacy of Lynching

Posted: August 23, 2018

In his recent article, Reckoning with History: The legacy of lynching in the West, historian Adam Sowards challenges the view romanticized in American popular mythology that “frontier justice” was a necessary community response in “a violent frontier where the need for justice sometimes preceded an established legal system.” In fact, he says, although Westerners created an elaborate rhetoric of a “Western vigilante tradition” to differentiate their posse killings from lynchings in the South, Western lynchings – like their Southern counterparts – were “racialized, gendered, brutal and lawless” and “disproportionately targeted people of color.” Reviewing the work of artist Ken Gonzales-Day, who catalogued more than 350 lynchings between California’s admission to the Union in 1850 and 1935, when the last known lynching occurred, Sowards notes that two-thirds of the victims of lynchings whose race is known were people of color, primarily Mexican. Lynchings of more than 871 Mexican Americans have been documented across 13 Western and Southwestern states in the years after the Civil War, and historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920 by vigilantes, local law-enforcement officers, and Texas Rangers. The notion that vigilante killings “simply fulfilled a criminal justice function at a time when the state’s courts failed to execute their duty" is false, Sowards writes. “All lynch mobs are lawless and unjust, and they point to white supremacy — no matter what earlier Westerners might have insisted.” Lynching declined across America, he says, “when states — whether Western, Midwestern or Southern — instituted capital punishment efficiently and racialized the criminal justice system.”

 

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