DPIC News

Federal Appeals Court Upholds Injunction Against Ohio Execution Protocol

The U.S. Court of Appeals for the Sixth Circuit has upheld a lower federal court ruling blocking the state of Ohio from proceeding with plans to carry out executions with its new three-drug execution protocol. The decision affirmed a district court preliminary injunction that barred the state from using the drug midazolam as part of a three-drug execution process, and barred the state from using "any lethal injection method which employs either a paralytic agent...or potassium chloride." Judge Karen Moore, writing for the 2-1 majority, said, “We are bound by the district court’s factual finding that ‘use of midazolam as the first drug in a three-drug execution protocol will create ‘a substantial risk of serious harm.’” Midazolam, a sedative, has been linked to botched executions in Ohio, Oklahoma, Arizona, and Alabama. Three Ohio death-row prisoners, Gary Otte, Ronald Phillips, and Raymond Tibbets, challenged Ohio's proposed protocol, which would use midazolam, followed by a paralytic drug, followed by potassium chloride to stop the heart. In January, a U.S. Magistrate Judge conducted the most extensive evidentiary hearing to date on the constitutionality of using midazolam in executions. After hearing five days of testimony featuring expert medical witnesses and eyewitness accounts of previous midazolam executions, the court issued a preliminary injunction against Ohio's execution protocol. The Sixth Circuit upheld the district court's decision, ruling that—given the evidence presented at the hearing—the court's findings of fact regarding the risks posed by midazolam were not clearly erroneous. The appeals court also upheld the lower court's injunction against the use of any paralytic drug or potassium chloride, agreeing with the district court that Ohio was bound by its previous repeated representations that it would not use those drugs in future executions. In reliance on those representations, the death-row plaintiffs had dropped claims related to those drugs from the litigation. The Sixth Circuit wrote, "[a]llowing the State to reverse course and use pancuronium bromide and potassium chloride in executions not only would unfairly advantage the State, but also would undermine the integrity of this litigation." In a short concurring opinion, Judge Jane Stranch commented: "This dialogue about the constitutional prohibition on cruel and unusual punishment is closely intertwined with our ongoing national conversation about the American criminal justice system. Woven through both is disquiet about issues such as punishing the innocent, discrimination on the basis of race, and effective deterrence of crime. These concerns are present throughout the criminal justice processes from arrest, to trial, to sentencing, to appeals, and to the final chapter in death penalty litigation such as this." Judge Raymond Kethledge dissented from the majority opinion. Ohio Attorney General Mike DeWine's office has not yet decided whether to appeal the decision.  

Arkansas Parole Board Recommends Clemency for Jason McGehee

The Arkansas Parole Board voted 6-1 on April 5 to recommend clemency for Jason McGehee, one of the eight death-row prisoners scheduled to be executed in an unprecedented eleven-day period later this month. McGehee's clemency petition drew support from both the former Director of the Arkansas Department of Correction, Ray Hobbs, and the trial judge who presided in his case, Robert McCorkindale. Speaking on McGehee's behalf, Hobbs told the Board, "He has learned his lesson, and he still has value that can be given to others if his life is spared." McGehee's lawyer, assistant federal defender John C. Williams, said clemency was warranted for numerous reasons and "respectfully ask[ed] the Governor to accept the parole board’s recommendation and sentence Mr. McGehee to life without the possibility of parole instead of death." Williams emphasized that McGehee was only twenty years old when the murder occurred and had a "near-perfect" prison record. He said, "The parole board determined Mr. McGehee warrants clemency instead of death because of his exemplary behavior, his youth at the time of the crime, and also because his sentence is not proportional." Two of McGehee's co-defendants, whom his lawyers argued were at least as culpable as McGehee, had received lesser sentences. The Fair Punishment Project chronicled numerous mitigating factors that, because McGehee's lawyer at trial barely investigated the case, his jury never heard. This included evidence that McGehee had been diagnosed with bipolar disorder and that he had experienced severe abuse and neglect as a child that led him to use drugs and alcohol as early as sixth grade. The parole board has recommended against clemency for four of the other prisoners, despite issues in those cases that include seriously inadequate defense, histories of mental illness, and borderline intellectual disability. The board's recommendations are advisory, not binding, and Governor Asa Hutchinson makes the final decision whether or not to grant clemency. [UPDATE: The U.S. District Court for the Eastern District of Arkansas has stayed McGehee's execution pending final action by Governor Asa Hutchinson on the Parole Board's clemency recommendation.]

Alabama Legislature Votes to End Judicial Override

The Alabama legislature has approved and sent to the Governor a bill that would bring to an end the practice of permitting trial judges to impose death sentences over a capital sentencing jury's recommendation that the defendant be sentenced to life. Alabama is the only state in the U.S. that currently permits judicial override. The legislature acted in response to mounting court challenges to Alabama's death penalty statute. On April 4, the state House of Representatives voted 78-19 to pass a bill prohibiting trial judges from overriding the sentencing recommendations of juries in death penalty cases. Governor Robert Bentley has indicated that he intends to sign the legislation. Two versions of the proposal had advanced in the state legislature. A bill sponsored by Sen. Dick Brewbaker (R-Montgomery) that would eliminate judicial override but retain Alabama's practice of allowing death sentences if ten or more jurors voted for death, passed the Senate 30-1 on February 23. A House bill by Rep. Chris England (D-Tuscaloosa) that would have abolished judicial override and required a unanimous jury vote for death had passed the House Judiciary Committee on February 16. Rep. England agreed to substitute the Senate version of the bill, which then overwhelmingly passed the House. The bill "places the death penalty back in the proper perspective," England said. "It puts it ... where in my opinion the Constitution intends it to be: in the hands of juries." Although Alabama is no longer an outlier on judicial override, it remains the only state in the country to permit a death sentence to be imposed based upon a non-unanimous jury vote. According to research by the Equal Justice Initiative (EJI), judicial override has historically been employed to impose death sentences when a jury recommended life, rather than as a safeguard against unjust jury votes for death. In 101 of the 112 cases in which Alabama judges have overriden capital jury sentencing recommendations, they have imposed the death penalty over a jury recommendation of life. The EJI study also found that the use of judicial override has been influenced by political concerns, with sentencing overrides disproportionately rising in election years. Bryan Stevenson, founder of EJI, said, "Override undermines the role of jurors, who sometimes deliberate for hours to make the right decisions in these cases on behalf of the community. Alabama has had one of the highest death-sentencing rates in the country largely because we add to death row so many people juries do not believe should be executed."

In Expanding Dispute Over Death Penalty, Florida Governor Orders Replacement of Local Prosecutor in 21 Murder Cases

Florida Governor Rick Scott issued a series of executive orders on April 3 removing locally elected 9th Judicial Circuit State Attorney Aramis Ayala (pictured) from 21 first-degree murder cases and replacing her with 5th Judicial Circuit State Attorney Brad King. The removal comes two weeks after Ayala announced a policy that her office would not pursue the death penalty in murder prosecutions. The cases include a number of potential capital resentencings resulting from the Florida Supreme Court's 2016 decision declaring non-unanimous death sentences to be unconstitutional. Ayala, a Democrat whose district encompasses Orange and Osceola Counties in and around Orlando, said on March 16 that, after conducting "an evidence-based review" of the issue, she had concluded that seeking the death penalty was not cost-effective and "is not in the best interests of this community or in the best interests of justice." Ayala is the only African-American elected prosecutor in Florida. Gov. Scott previously removed her from the high-profile trial of Markeith Loyd, a defendant accused of killing his pregnant ex-girlfriend and an Orlando police officer, also appointing King to handle that case. That decision prompted opposition from the Florida Legislative Black Caucus and the victim's parents. Democratic state Rep. Sean Shaw of Tampa called Scott's action in the 21 cases a "gross abuse of his power." Louis Virelli, a law professor at Stetson University, warned that Gov. Scott's actions set a dangerous precedent, saying, "this opens the door for governors of all political parties to cherry-pick cases away from prosecutors." Ayala has hired Roy L. Austin, Jr., a former civil rights attorney at the U.S. Department of Justice, to challenge Scott's authority to issue the executive orders. Ayala's spokesperson, Eryka Washington, said Scott had not notified the State Attorney that he was issuing the executive orders and that Ayala first learned of the orders from the media. “Ms. Ayala remains steadfast in her position that the Governor is abusing his authority and has compromised the independence and integrity of the criminal justice system,” Washington said. Orange and Osceola Counties imposed a total of one death sentence from 2012-2016. Citrus, Hernando, Lake, Marion, and Sumpter Counties—the predominantly Republican counties that make up the judicial circuit in which State Attorney King was elected—imposed six death sentences during that period.

STUDIES: 21st-Century Executions Disproportionately Involve Defendants With Mental Illness

A new study of the case records of the men and women executed in the United States between 2000 and 2015 has found that 21st-century executions disproportionately involve prisoners diagnosed with mental illness and who have experienced traumatic child abuse. In The Washington Post's data feature, Monkey Cage, Professor Frank Baumgartner and Betsy Neill of the University of North Carolina-Chapel Hill write that "[m]ost Americans oppose the death penalty for the mentally ill. But our research suggests that the death penalty actually targets those who have mental illnesses." The authors' examination of case files found that 43% of the executed prisoners had received a mental illness diagnosis at some point in their lives, more than double the 18% of people in the general population who have ever been diagnosed with any mental illness. 4% of Americans have been diagnosed with a serious mental illness. Personality disorders and depression were the most commonly diagnosed illnesses among those executed, but executed death-row prisoners also had significantly higher rates of such serious disorders as schizophrenia, posttraumatic stress disorder, and bipolar disorder. Evidence of mental illness—and depression in particular—was especially prevalent among those prisoners who waived their appeals and "volunteered" for execution. 63% of volunteers had a mental illness diagnosis, compared to 39% of others who were executed. More than one-quarter (26%) of volunteers had been diagnosed with depression, 37% had documented suididal tendencies, and nearly one-third (32%) had attempted suicide, leading the authors to suggest, "If suicidal tendencies are evidence of mental illness, then death penalty states actively assist suicide." Rates of childhood trauma—a risk factor for mental illness—were also dramatically higher among executed prisoners than among the general public. The Department of Health and Human Services estimates about 10% of U.S. children are abused or neglected, but nearly 40% of executed prisoners had been abused. The study found that executed death row prisoners were 13 times more likely than U.S. children as a whole to have been sexually abused, 13 times more likely to have been physically abused, and twice as likely to have been neglected by their caregivers. According to the authors, "The CDC and independent researchers have repeatedly found that childhood trauma’s long-term effects include higher likelihoods of disrupted neuro-development, cognitive impairment, mental illness, and becoming the perpetrator or victim of violence." (Click image to enlarge.) 

Corrections Officials Warn Arkansas Leaders About Psychological Trauma From Unprecedented Execution Schedule

As Arkansas moves toward attempting to conduct an unprecedented eight executions in eleven days, former corrections officials from across the country are warning Arkansas Governor Asa Hutchinson of the psychological toll the compressed execution schedule could take on prison personnel. Dr. Allen Ault (pictured), former warden and corrections commissioner in Georgia who oversaw five executions in that state, said "[t]he rapid schedule will put an extraordinary burden on the men and women required by the state to carry out this most solemn act, and it will increase the risk of mistakes in the execution chamber — which could haunt them for the rest of their lives." Dr. Ault joined 22 other former corrections officers in sending a letter to Governor Hutchinson, urging him to "reconsider the pace of the planned executions to protect the professionals who will carry them out and to ensure that the procedures are legal and humane." They caution, "[a]s former corrections officials and administrators—some of whom have directly overseen executions—we believe that performing so many executions in so little time will impose extraordinary and unnecessary stress and trauma on the staff responsible [for] carrying out the executions." Frank Thompson, a former warden of prisons for the Arkansas Department of Corrections and superintendent of the Oregon State Penitentiary, spoke of the mental health problems he has witnessed in prison officials who participated in executions, saying, "There is absolutely no way to conduct a well-run execution without causing at least one person to lose a little bit of their humanity, or to start at least one person on the cumulative path to post-traumatic stress. So for Arkansas to do this eight times in 10 days, to me that is unimaginable – it is compounding the stress, laying traumatic experiences on top of each other.” Jerry Givens, who carried out 62 executions for the state of Virginia, said simply, "I just ask the governor a favor.... [J]ust have some heart for the officers that have this task that they want them to carry out. Think about their lives afterwards."

NEW VOICES: Bipartisan Former Governors Support Death Penalty Exemption for Those With Severe Mental Illness

In a joint op-ed for The Washington Post, former governors Bob Taft (pictured, l.) and Joseph E. Kernan (pictured, r.) have expressed bipartisan support for proposed legislation that would prohibit the use of the death penalty against people who have severe mental illness. Taft, a former Republican governor of Ohio, and Kernan, a former Democratic governor of Indiana, call the execution of mentally ill defendants "an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts." They highlight recent executions of Adam Ward, who exhibited symptoms of mental illness by the age of four, and decorated Vietnam War veteran Andrew Brannan, whom the Department of Veterans Affairs classified as 100% disabled as a result of his combat-related posttraumatic stress disorder and bipolar disorder, as examples of severely mentally ill defendants who "continue to be sentenced to death and executed" in the United States. Legislators in Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia have introduced legislation in 2017 that would prohibit the death penalty for people with severe mental illness, arguing that these defendants are less culpable, more vulnerable to wrongful conviction, and often falsely perceived by jurors as more dangerous. Taft and Kernan explain that "Legislation being considered on this topic varies by state, but each bill creates a case-by-case decision-making process—conducted by either a judge or jury—to determine if a defendant has a severe mental illness. Only those with the most serious diagnoses would qualify." They urge legislatures to pass these measures, saying, "This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency."

Maricopa County, Arizona DA Seeks Death Penalty So Often, The County Has Run Out of Capital Defense Lawyers

Maricopa County, Arizona County Attorney Bill Montgomery has sought the death penalty so frequently that the county has run up millions of dollars in defense costs and run out of defense lawyers qualified to handle new capitally-charged cases. The Arizona Republic reports that, with 65 active death-penalty cases and more new capital cases charged than the 35 that have been resolved since July 1, 2014, the county ran out of the specialized lawyers needed to defend the cases in January of this year. Yet despite the county's high rate of seeking the death penalty, the number of death sentences imposed in the county is falling. With 81 people on death row as of January 1, 2013, Maricopa County ranked fourth among all U.S. counties in the number of death-row prisoners. According to a 2016 Fair Punishment Project report, Maricopa County imposed 28 death sentences between 2010 and 2015, making it one of only 16 counties to have imposed as many as 10 death sentences over that period. However, only six of the cases resolved since July 1, 2014, have resulted in death sentences. In addition to burdening the county's defense services, the County Attorney's broad pursuit of the death penalty has placed a significant financial strain on the county. An audit commissioned by the Office of Public Defense Services, one of the agencies that provides representation for capital defendants, found that capital murder cases cost eight to 40 times more than first-degree murder cases in which the death penalty is not sought. The audit found that non-capital murder trials cost about $27,000 to defend, whereas capital cases—which require two defense attorneys, an investigator, and a mitigation specialist—cost from $213,000 to $1 million, depending on the outcome. Capital cases ending in a plea to a lesser offense or sentence cost about $213,000, the audit said; more than the cost of a non-capital case taken to trial. Death penalty trials resulting in life sentences cost $580,000, and those that ended with a death sentence cost $1 million, not including federal appeals. John Canby, an attorney for the Maricopa County Public Defender's Office, summarized the situation: “For a variety of reasons it appears that juries in Maricopa County are less willing to return death verdicts in trials for first-degree murder than they once were. Nevertheless, it seems that the County Attorney’s Office is still willing to seek death sentences in cases with only a remote possibility of a death verdict. That practice costs the taxpayers of Maricopa County a lot of money because the court is required to appoint capital-qualified attorneys to those cases, even if the possibility of a death sentence is in fact very remote." 

Supreme Court Overturns Texas' "Outlier" Standard for Determining Intellectual Disability in Capital Cases

The U.S. Supreme Court has unanimously struck down Texas' standard for evaluating intellectual dIsability in death penalty cases, calling the state's approach an "outlier" that, "[b]y design and in operation, ... create[s] an unacceptable risk that persons with intellectual disability will be executed." In Moore v. Texas, the Court on March 28 vacated the judgment of the Texas Court of Criminal Appeals (CCA), which had applied an unscientific set of lay stereotypes known as the “Briseño factors” (named after the Texas court decision that announced them) to overturn a trial court determination that Texas death-row prisoner Bobby Moore was intellectually disabled. The Court described these seven factors—including such things as whether lay people who knew the defendant thought he was intellectually disabled and whether he could hide facts or lie effectively—as an unscientific "invention" of the CCA that was "untied to any acknowledged source" and that lacked support from "any authority, medical or judicial." The Supreme Court ruled in 2002, in Atkins v. Virginia, that the execution of individuals with intellectual disability was unconstitutional, but it left states with some discretion in determining who was intellectually disabled. However, as Justice Ruth Bader Ginsburg, writing for the five-justice majority, reiterated, "States’ discretion ... is not unfettered.” "[A] court’s intellectual disability determination," she wrote must be “informed by the medical community’s diagnostic framework." The Moore decision is the second time in recent years that the Court has addressed state deviations from clinical definitions of intellectual disability, which focus on "three core elements: (1) intellectual-functioning deficits, (2) adaptive deficits, and (3) the onset of these deficits while still a minor." The Court struck down Florida's use of a strict IQ cutoff in the 2014 case Hall v. Florida, noting that Florida's standard, "disregards established medical practice." The Hall decision addressed the first element, intellectual-functioning, while Moore addressed aspects of both the first and second, adaptive deficits. Chief Justice John Roberts and Associate Justices Samuel Alito and Clarence Thomas dissented from the portion of the Court's opinion that held that Texas had inappropriately rejected Moore's evidence of the first prong, deficits in intellectual functioning. But they joined the Court in rejecting Texas' use of the Briseño factors, calling it “an unacceptable method of enforcing the guarantee of Atkins.”

New Podcast: Women and the Death Penalty, With Expert Guest Mary Atwell

"We live in a gendered society," says Dr. Mary Atwell (pictured), one of the nation’s foremost experts on women and capital punishment, and the men and women who go to death row are different. In the latest podcast episode of "Discussions with DPIC," commemorating Women's History Month, Dr. Atwell says why that is so. Dr. Atwell chose to write about women on death row because she "wanted to do something about capital punishment that was not just numbers, that was a human take on capital punishment.” In the podcast, DPIC staff members Anne Holsinger and Robin Konrad interview her about patterns in cases in which women have been sentenced to death, including the nature of the crimes, the defendants' histories of physical and sexual abuse and addiction, and prosecutor and media stereotyping of female capital defendants as violating gender norms. They also discuss how women are affected differently than men by systemic issues, such as inadequate defense and jury bias. "Women who have been sentenced to death are much more likely than the men who are sentenced to death to have committed a murder of an intimate person, rather than a stranger," Dr. Atwell says. She explains that, "for 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 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." Dr. Atwell is Professor Emerita of Criminal Justice at Radford University and author of three books on capital punishment, most recently Wretched Sisters: Examining Gender and Capital Punishment.

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