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Alabama Pardons Scottsboro Boys--Former Death Row Inmates

On November 21, the Alabama Board of Pardons and Paroles unanimously voted to posthumously pardon Charles Weems, Andy Wright, and Haywood Patterson, three of the nine "Scottsboro Boys," a group of black teenagers who were charged in 1931 of raping two white women. Eight of the nine defendants, including the three who were recently pardoned, were originally sentenced to death. The racial injustice of the case sparked protests and two U.S. Supreme Court decisions, one because the defendants did not receive adequate counsel and the other because no blacks were allowed to serve as jurors during the trials. The three who were recently exonerated were the last of the group who had not already been pardoned or had charges against them dropped. Legislation passed in Alabama earlier this year allowed the Board to grant posthumous pardons in cases involving racial or social injustice. The pardon and parole board's assistant executive director, Eddie Cook, said, "Today, we were able to undo a black eye that has been held over Alabama for many years." Alabama Gov. Robert J. Bentley said, “The Scottsboro Boys have finally received justice.”


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Texas Court of Criminal Appeals Denies New Hearing for Duane Buck

In a 6-3 decision on November 20, the Texas Court of Criminal Appeals denied a request from death row inmate Duane Buck for a new sentencing hearing, despite the fact that racially prejudicial statements had been made during his trial. While the jury was being asked to consider if Buck would be a future danger to society, a psychologist testified that African Americans commit a disproportionate number of criminal offenses. Buck's case was one of seven identified in 2000 by then-Texas Attorney General John Cornyn in which testimony linking race to future dangerousness was impermissibly used. The other six defendants received new sentencing hearings, but Buck did not because his case was still in the early stages of appeal. Three judges dissented, writing, "The record in this case reveals a chronicle of inadequate representation at every stage of the proceedings, the integrity of which is further called into question by the admission of racist and inflammatory testimony from an expert witness at the punishment stage." Buck's attorneys said they will appeal: "We will ask the U.S. Supreme Court to review the important due process and equal protection issues at stake in Mr. Buck’s case, and we are hopeful that the Supreme Court will intervene to right this unequivocal wrong," they said.


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NEW VOICES: President Carter Calls for Halt to Executions

Former President Jimmy Carter spoke recently about the death penalty in an interview with The Guardian in advance of his appearance at the American Bar Association's symposium on capital punishment in Atlanta on November 12. As governor of Georgia, Carter signed the revised death penalty law that the Supreme Court upheld in Gregg v. Georgia (1976), but he told the paper, "In complete honesty, when I was governor I was not nearly as concerned about the unfairness of the application of the death penalty as I am now. I know much more now. I was looking at it from a much more parochial point of view – I didn’t see the injustice of it as I do now." He said he is particularly concerned about the arbitrariness of death sentences, “In America today, if you have a good attorney you can avoid the death penalty; if you are white you can avoid it; if your victim was a racial minority you can avoid it. But if you are very poor or mentally deficient, or the victim is white, that’s the way you get sentenced to death.” Carter said the Supreme Court should put a hold on executions and reconsider the death penalty: “It’s time for the Supreme Court to look at the totality of the death penalty once again. My preference would be for the court to rule that it is cruel and unusual punishment, which would make it prohibitive under the US constitution.”


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STUDIES: Human Rights Groups Examine Death Penalty in California and Louisiana

The Center for Constitutional Rights and the International Federation for Human Rights recently released an analysis of the death penalty in California and Louisiana. The report concluded that those states' application of capital punishment "violates U.S. obligations under international human rights law to prevent and prohibit discrimination and torture, cruel, inhuman or degrading treatment." Researchers conducted interviews with many of those involved in the legal system and examined data on charging, sentencing, and executions. They found that racial disparities in the death penalty in both states constituted discrimination. The report was particularly critical of death row conditions, saying, "[E]xtreme temperatures, lack of access to adequate medical and mental health care, overcrowding and extended periods of isolation, do not respect and promote human dignity...Such deplorable circumstances have been condemned by the U.N. Special Rapporteur on Torture as constituting cruel, inhuman, or degrading treatment, or, in certain circumstances, torture."


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STUDIES: American Bar Association Releases Assessment of Virginia Death Penalty

On September 5, the American Bar Association's Death Penalty Due Process Review Project released its latest report, focusing on the fairness and accuracy of Virginia's death penalty system. The assessment recommended changes to the way the state handles defendants with mental retardation and severe mental illness. It also recommended requiring prosecutors to disclose additional information about testifying witnesses and allowing prosecutors to withdraw the death penalty even after charging a defendant with capital murder. The report was critical of the state's practice of setting an execution date before all appeals are complete because it "effectively provides less due process to those under a death sentence than that which is afforded to non-capital inmates." The report praised recent improvements in documenting police procedures for eyewitness identification and accreditation of crime laboratories, but recommended additional reforms. The assessment found the state to be not in compliance or only in partial compliance with many of the ABA's protocols for the death penalty. The assessment team included Mark Earley, the former Attorney General of Virginia, John Douglass (Chair), the Dean Emeritus of the University of Richmond Law School, and other leaders from the judicial and legislative communities.


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STUDIES: The Role of Implicit Racial Bias in the Death Penalty

A new study testing internal attitudes and stereotypes among potential jurors in six death penalty states may help to explain the racial disparities that persist in the application of capital punishment. Researchers Justin Levinson (l.), Robert Smith (r.), and Danielle Young tested 445 jury-eligible individuals and found they harbored two kinds of racial bias: they maintained racial stereotypes about Blacks and Whites and made associations between the race of an individual and the value of his or her life. Those studied tended to associate Whites more with "worth" and Blacks with "worthless." The study further found that death-qualified jurors held stronger racial biases than potential jurors who would be excluded from serving in death penalty cases.


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RACE: Former Military Officials and Other Groups Ask North Carolina for Fairness in Jury Selection

A number of prominent groups have filed supportive briefs with the North Carolina Supreme Court asking that the practice of racial bias in selecting jurors for death penalty cases be ended. Former senior military officials, families of murder victims, and potential jurors denied the opportunity to serve because of their race were among those arguing that a ruling under the state's Racial Justice Act be upheld. In 2012, Judge Gregory Weeks held that Marcus Robinson's (pictured) trial was tainted with racial discrimination and that there was evidence of similar bias around the state. Statistical studies showed that qualified African Americans were struck from juries at more than twice the rate of whites. Potential black jurors were removed for such reasons as membership in the NAACP or attending an historically black university. Robinson’s death sentence was reduced to life, but the Racial Justice Act was recently repealed after the ruling. The state supreme court will review Judge Weeks' findings of bias. No briefs were filed by groups opposing the ruling in Robinson's case.


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Ohio Committee Makes Preliminary Recommendations for Death Penalty Reform

A committee empaneled by the Chief Justice of the Ohio Supreme Court made three preliminary recommendations at its June meeting for reforming the state's death penalty. The panel, which consists of prosecutors, defense attorneys, judges, and academic experts, voted to recommend a reduction in the scope of crimes eligible for the death penalty, the creation of a statewide panel to decide on seeking a death sentence, and the enactment of a Racial Justice Act. The restriction of capital crimes would limit the death penalty to only those cases that involved the murder of multiple victims, a child under 13, or a police officer, or a murder committed to escape detention or eliminate a witness. The statewide review panel would consist of former prosecutors, who would examine potential capital cases to determine whether local prosecutors could bring capital charges. A Racial Justice Act would allow death row inmates to use statistical studies to support claims of racial bias in state courts. While the proposals received a majority vote from the committee, not all members supported them and some opponents were absent from the meeting. A final report is due by the end of the year.


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500th Texas Execution Scheduled Despite Concerns about Racial Bias and Quality of Legal Representation

Kimberly McCarthy (pictured), who is facing execution on June 26, is scheduled to become the 500th person executed in Texas since 1976. McCarthy’s attorney, Maurie Levin, recently filed a new motion to stay the execution because racial discrimination and inadequate legal representation played significant roles in McCarthy’s case. According to the filing, only four non-white potential jurors made it to the final selection from an initial pool of 64 prospective jurors. Three of the four potential jurors were removed from the final jury by the prosecution using peremptory strikes. Levin also argues that McCarthy’s execution should be stayed because she received inadequate legal representation. In a recent U.S. Supreme Court ruling in Trevino v. Thaler, the Court said Texas courts are required to consider appeals from death row inmates who claim ineffective assistance of counsel.


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RECENT LEGISLATION: North Carolina Legislators Vote to Repeal Racial Justice Act

On June 5, legislators in North Carolina voted to repeal the Racial Justice Act, which had allowed death row inmates to challenge their sentences using statistical evidence of racial bias. Since the law took effect in 2009, most of the inmates facing execution in North Carolina appealed their sentence under the law. In 2012, Marcus Robinson, who was the first defendant to receive a hearing under the RJA, was re-sentenced to life without parole due to evidence of racial bias in jury selection. Rep. Darren Jackson expressed his disappointment at the repeal: “[W]e voted for the RJA because we wanted the death penalty to be applied uniformly, without regard to race. Be it the perpetrator, the victim, or an individual juror, race should play no part in the process.”  Governor Pat McCrory has said he will sign the repeal bill.


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