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STUDIES: Elected High Court Judges Half as Likely as Appointed Judges to Overturn Death Sentences

A Reuters analysis of more than 2,000 state Supreme Court rulings in capital cases has found that elected judges are much less likely to overturn death sentences than judges who are appointed. In the 15 states in which the state Supreme Court is directly elected, justices overturned death sentences only 11% of the time as compared to a 26% reversal rate in the 7 states in which justices are appointed. 15 states have a hybrid system, where justices are initially appointed, but must then face election to remain on the bench; those states fell in the middle, with a 15% reversal rate. Tennessee Justice Gary Wade, who ran television ads during his re-election campaign touting the court's 90% rate of affirming death sentences, told Reuters, "Those who were employed to run the campaign believed that it was important for this court to have a demonstrated record, or willingness, to impose the death penalty." An Ohio defendant, Ashford Thompson, is arguing that politics played a role in the Ohio Supreme Court's 4-3 decision to uphold his death sentence in a decision rendered less than a week before two of the majority justices faced re-election. The justice who wrote that opinion was the beneficiary of a $600,000 advertising campaign that featured television ads praising her previous votes to uphold death sentences. Dissenting Justice William O'Neill wrote, "The majority’s failure to seriously engage in the weighing process provides yet another reason why, in my opinion, Ohio’s system of imposing and reviewing death sentences is unconstitutional."


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One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.


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NEW VOICES: Republican and Democratic Legislators Critique Tennessee's Death Penalty

In two separate guest columns for The Commercial Appeal (Memphis, TN), four state legislators urged an end to the death penalty in Tennessee. State Representatives Steve McManus (top left) and Mark White (top right), both Republicans, called capital punishment, "a lousy return on our investment." Estimating that Tennessee's death penalty is similar in costs to North Carolina's $11 million-per-year system, they listed some alternative uses for death penalty funds. "270 patrol officers. 361 state troopers. 228 detectives and criminal investigators. 110 new school buses. 239 teachers. Compensation for 367 crime victims and their families." They go on to raise concerns about the accuracy of capital convictions in Tennessee, which has executed six inmates and exonerated three. "Six-and-three isn't bad if you're playing football. It's not very good if you're deciding life or death." On the other side of the aisle, Democratic State Sen. Lee Harris (bottom left) and State Rep. Johnnie Turner (bottom right) called the death penalty, "broken," giving four reasons for their opposition to capital punishment. "First, we should be investing in infrastructure, schools, police and emergency services, and public transportation, among others...Second, executing an innocent person is an unacceptable risk...Third, the death penalty affects innocent people in other ways, too...the evidence shows that some people, when faced with the prospect of death, will falsely admit to taking a life to save their own...Fourth, we could be doing more for victims' families." They conclude, "In the end, the death penalty is a needless source of ongoing contention, and it takes up too much of our valuable time and resources while we're trying to work through all the other problems our criminal justice system is facing."


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An Historical Look at Nitrogen Gas, the Electric Chair, and the Firing Squad as Execution Alternatives

With lethal injection in administrative crisis and facing constitutional challenges, some states are looking towards abolition and others towards alternative methods of execution. In an article for The Marshall Project, reporters Maurice Chammah, Andrew Cohen, and Eli Hager explore the histories of nitrogen gas, electrocution, and the firing squad -- different methods of execution three states have recently adopted as alternatives to lethal injection in the event lethal injection is declared unconstitutional or execution drugs become unavailable. The article notes the similarities between promises made by proponents of each method that their method would be the most efficient, painless, and humane execution procedure, and discusses the ambivalence engendered by each execution method.  The article reports that experts have criticized the manner in which Oklahoma researched and adopted its nitrogen gas alternative as “cavalier.” "What Oklahoma is doing is not a scientific endeavor,” Emory University anesthesiologist Joel Zivot is quoted as saying. “It’s nonsense, empirically.” Highlighting the historical context of the electric chair in light of Tennessee's decision to reintroduce electrocution, the article chronicles the origins of the method and contrasts Thomas Edison's promise that the electric chair would be painless and efficient with stories of botched electrocutions. Finally, the article turns to the firing squad, which it quotes Utah Gov. Gary Herbert as calling “a little bit gruesome," even as he approved the law that brought it back as an option in his state. It recounts the unique historical relationship between Utah's use of the firing squad and some forms of Mormon theology. Finally, it contrasts the efficiency of the firing squad with the visceral responses it produces: in the words of Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit, “We mask the most violent act that society can inflict on one of its members with such an antiseptic veneer. Isn’t death by firing squad, with mutilation and bloodshed, more honest?”


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VICTIMS: 20 Years After Urging Death Sentence, Man Seeks to Save His Mother's Killer

At age 6, Clifford O'Sullivan (pictured with his mother) testified in favor of a death sentence for the man who had killed his mother. That man, Mark Scott Thornton, is on California's death row. Now, 20 years later, O'Sullivan says he believes Thornton's life should be spared. When he took the witness stand during the sentencing phase of Thornton's trial, O'Sullivan told the jury, "All I think is that what the bad man did to my mom should happen to him. It's really sad for my family 'cause she was one of the greatest mothers I've met." In the years that followed, O'Sullivan struggled to heal from his mother's death, experimenting with drugs and alcohol and even committing burglary as a teen. Today, he is an emergency room nurse in Nashville. In an interview with The Tennessean, he says he believes only a "hair-thin" difference in circumstances stopped him from ending up like Thornton. O'Sullivan also has become disillusioned with the death penalty, saying, "It certainly doesn't do the two things it's supposed to do. Offer retribution and deterrence." In 2014, he met Thornton, and the men spent 5 hours talking about their lives. The meeting cemented O'Sullivan's belief that Thornton should not be executed. "If they put him up for a date I would stop it, just like I started it," O'Sullivan says. "It wouldn't happen. Over my dead body."


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Tennessee Supreme Court Contemplates Electric Chair Appeal on 25th Anniversary of Botched Florida Electrocution

The week of the 25th anniversary of Florida's gruesome botched electric chair execution of Jesse Tafero (pictured), the Tennessee Supreme Court began hearing a challenge to the administration of a state law that would resurrect the use of that State's electric chair if lethal injection drugs are unavailable. On May 6, 2015, the Tennessee justices heard argument on death-row inmates' right to know which method of execution will be used in their cases.  The Justices voiced concerns about the secrecy that the law allows to shield the execution process and the decision about which method to use. "How are the defendants supposed to know?" Justice Cornelia A. Clark asked, offering a hypothetical situation in which an inmate expects to be executed by lethal injection until he sees the electric chair set up in the execution chamber. Deputy Attorney General Jennifer Smith argued that execution by electric chair is "just not going to happen," but Chief Justice Sharon Lee said that the inmates' evidence regarding the unavailability of execution drugs suggests, "execution (by the electric chair) is very probable."  On May 4, 1990, witnesses to Tafero's execution reported that a problem with Florida's electric chair caused foot-high flames to shoot from Tafero's head. Current had to be applied three times because the first two shocks failed to kill him.


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Tennessee Supreme Court Suspends Executions

On April 10, the Tennessee Supreme Court canceled the execution dates for all four Tennessee death-row inmates currently under death warrant, and returned their cases to the lower courts to address the inmates' challenges to the state's lethal injection procedures. The executions had been scheduled for October 2015 through March 2016. Tennessee has not carried out an execution since 2009, but the state announced in 2013 that it would switch from a three-drug lethal injection protocol to a one-drug protocol using pentobarbital. Because of difficulties obtaining lethal injection drugs, Tennessee also passed a law in 2014 permitting the use of the electric chair if lethal injection drugs are not available. A group of inmates are currently challenging the constitutionality of Tennessee's lethal injection protocol as constituting cruel and unusual punishment, and the inmates have also challenged the State's use of the electric chair.  The Tennessee Supreme Court is expected to decide soon if it will review the inmates' challenges to the electric chair.


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