Six Ex-Governors Urge Gov. Jerry Brown to Clear California’s Death Row
Six former governors have urged California Governor Jerry Brown (pictured) to “be courageous in leadership” and grant clemency to the 740 men and women on California’s death row before he leaves office on January 7, 2019. In a December 13 op-ed in the New York Times, the former governors—Ohio’s Richard Celeste, Oregon’s John Kitzhaber, Maryland’s Martin O’Malley, New Mexico’s Bill Richardson and Toney Anaya, and Illinois’s Pat Quinn—wrote that “Mr. Brown has the power to commute the sentences of 740 men and women, to save 740 lives. ... Such an act will take political will and moral clarity, both of which Mr. Brown has demonstrated in the past. In the interest of his legacy, the people of California need his leadership one more time before he leaves office.”
The governors called signing a death warrant “a terrible responsibility, hard even to imagine until you’re asked to carry it out, as we were. But we became convinced that it wasn’t something a civilized society should ask of its leaders. That’s why we halted executions in our states, and we call on Gov. Jerry Brown of California to do the same.” Each of the former governors granted clemency to at least one death-row prisoner during their tenures in office, and Anaya, O’Malley, and Quinn commuted the death sentences of all the prisoners on their states’ death rows. The ex-governors said, “we know it must weigh on Mr. Brown that, unless he acts soon, he will leave behind 740 men and women on California’s death row. It’s a staggering number and our hearts go out to him. From a humanitarian perspective, it is horrifying to imagine executing that many humans. As a practical matter, it’s beyond comprehension. ... If the state were to execute a single person every day, people would still be waiting on death row after two years.”
In late November, three former Ohio governors, Richard Celeste, Bob Taft, and Ted Strickland gave a joint interview to the Columbus Dispatch in which each told the paper that the toughest burden he had to bear as governor was deciding whether a condemned prisoner should live or die. Celeste commuted the death sentences of eight prisoners—four men and all four women on the state’s death row—towards the close of his second term. Although no one was executed during his eight years in office, Celeste said, “[a]s I look back on it, if I had really ... been bold, I would have ... just sa[id], ‘I’m going to commute them all to life [sentences], without the benefit of parole.’” Strickland said his biggest regret was not stopping executions in his state. “I wish I had done what my friend Jay Inslee, who’s the governor of Washington state, did when he became governor. He just said, ‘There will be no executions as long as I’m the governor of the state of Washington.’ And I wish I had had the courage to make that decision.” Strickland granted clemency five times, but allowed 17 executions to go forward. “I’m just convinced as long as we have the death penalty, innocent people are going to lose their lives .... [O]ur judicial system has serious problems that need attention,” he said.
In their New York Times op-ed, the six former governors wrote: “The achievement of high office demands that one be courageous in leadership. Mr. Brown now has the chance to do what others in our ranks have done after they became aware of the price paid for taking a human life. We were compelled to act because we have come to believe the death penalty is an expensive, error-prone and racist system, and also because our morality and our sense of decency demanded it.” Brown, they said, should commute California's entire death row or “declare a moratorium on the death penalty and give Governor-elect Gavin Newsom the time he will need to figure out how to end a system broken beyond repair.” At an international conference on the death penalty at the Italian Parliament in November, the Community of Sant’ Egidio—a Catholic group with close connections to Pope Francis—and representatives of 25 countries, including the justice ministers of South Africa, Benin, Zimbabwe and Malaysia also called upon Brown to commute all death sentences in the state before leaving office.
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Kentucky Joins States With No Executions for at Least Ten Years
On November 21, 2018, Kentucky marked 10 years since its last execution, becoming the eleventh current death-penalty state that has not carried out an execution in more than a decade. Another 20 states have legislatively or judicially abolished their death-penalty laws, bringing the number of states that do not actively use the death penalty to 31. On the day before Kentucky reached its 10-year milestone, a lawsuit filed in federal court highlighted some of the greatest dangers of capital punishment in the Commonwealth. On November 20, Nickie Miller—a military veteran and cancer patient who spent two years in jail facing a possible death sentence before murder charges against him were dropped in 2017—filed a lawsuit against Montgomery County, Kentucky and local and state law enforcement officials alleging that they had conspired to frame him for murder.
Miller’s complaint names six people involved in his investigation and prosecution as defendants: Montgomery County Sheriff Fred Shortridge, Assistant Commonwealth Attorney Keith Craycraft, Detectives Ralph Charles Jr. and Mark Collier, county jailer Eric Jones, and Kentucky State Police Polygraph Examiner John Fyffe. The complaint alleges that the defendants fabricated and destroyed evidence, testified falsely, and coerced a woman into falsely implicating Miller by threatening to take her children unless she provided the statement they wanted. It specifically claims that Fyffe and the sheriff’s officers “conspired to take [Miller’s] liberty by knowingly initiating false charges based on evidence that the Defendants fabricated.” According to the complaint, the alleged misconduct “had a profound impact” on Miller’s health, denying him “proper medical treatment [for his cancer], including chemotherapy, while incarcerated.” “The defendants succeeded in manipulating the justice system for several years, including falsely accusing Mr. Miller of capital murder and seeking the death penalty against a clearly innocent man,” defense investigator Joshua Powell said. “Mr. Miller has suffered tremendous damage, mental suffering, cancer recurrence and loss of a normal life, all caused by the defendants’ misconduct.”
Kentucky has imposed 97 death sentences since reinstating the death penalty in 1975. More than half (49) of those convictions or sentences have been overturned, including the conviction of Larry Osborne, who was exonerated in 2002. Two of the three men executed in Kentucky waived some or all of their appeals, “essentially committing legal suicide,” said Damon Preston, a Public Advocate at the Kentucky Department of Public Advocacy. Preston also said that Kentucky’s death penalty system deprives families of closure: “It’s hard to see how the family would get resolution when the cases go on for so long. But the reason cases go on for so long is because the death penalty in Kentucky doesn’t work. If a defendant is sentenced to life without parole, that defendant gets an appeal to the Kentucky Supreme Court and then the case is essentially over.” Executions in Kentucky have been under a judicial hold since 2010, as a result of challenges to the lethal-injection protocol. The Attorney General’s Office is scheduled to file its brief in the lethal-injection case on November 30, but additional hearings and briefing are expected before the court issues a ruling in the case.
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Law Review: Junk Mental Health Science and the Texas Death Penalty
Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”
Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”
The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”
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Texas Schedules Back-to-Back Executions of Prisoners Who Claim Innocence
Texas has scheduled executions on consecutive nights of two prisoners who have long asserted their innocence. Troy Clark (pictured, left), who is scheduled to be executed on September 26, 2018, was convicted and sentenced to death based on the changing statements of a former girlfriend who could have faced the death penalty under the Texas law of parties but was tried as an accomplice and sentenced to 20 years in prison. Daniel Acker (pictured, right), scheduled to be executed September 27, was convicted and sentenced to death based upon since recanted forensic testimony that he had strangled his girlfriend. Clark was convicted of the 1998 kidnapping and murder of Christina Muse in Tyler Texas, and prosecutors have also accused him two other methamphetamine-related murders. He has no legal challenges pending and his clemency petition was turned down by the Texas Board of Pardons and Paroles on September 24. Clark alleges that he was set up by his girlfriend, who initially told police that another murder victim was responsible for Muse’s death and then later gave police a statement saying she had killed Muse out of jealousy and that Clark was not involved. Clark also argued in an unsuccessful habeas corpus petition that his court-appointed counsel at trial and in the post-conviction process failed to investigate and present mitigating evidence—including mental health evidence related to fetal alcohol syndrome—that he says could have persuaded the jury to spare his life. Acker, who also maintains his innocence, was convicted of strangling his girlfriend, Marquetta George, and dumping her body. He does not deny involvement in her death, but alleges that she jumped out of his moving car during an argument and died accidentally, likely having been struck and killed by a passing car. Acker's attorneys have filed appeals saying that his trial was tainted by the court's exclusion of evidence, and the inclusion of “false,” “misleading,” and erroneous forensic testimony. The prosecution changed its explanation for George’s death after a state medical examiner admitted in a 2011 evidentiary hearing that she had not been strangled. Instead, the prosecution argued for the first time that Acker pushed George from the truck. “He didn’t have the physical ability to strangle her while he was driving,” Acker’s attorney said, and had no motive to kill George. The Texas pardons board has also denied Acker’s application for clemency. On September 21, he filed a petition for review and a motion to stay his execution in the U.S. Supreme Court, arguing that due process is violated when “a State has repudiated a false theory of criminal liability on which it based a death sentence, but intends to carry out that sentence based on a new theory of liability” that was never presented to the jury. Texas has already executed eight people in 2018.
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Medical Expert: Billy Ray Irick Tortured to Death in Tennessee Execution
Billy Ray Irick (pictured) was tortured to death during his August 9, 2018 execution in Tennessee, according to one the nation's leading anesthesiologists. In an affidavit submitted to the Tennessee Supreme Court on September 6 as part of an appeal filed by state death-row prisoners challenging Tennessee’s execution process, anesthesiologist Dr. David Lubarsky, the Vice Chancellor for Human Health Sciences at the University of California-Davis Health, said Irick was not properly anesthetized during his execution and experienced the torturous effects of the second and third lethal-injection drugs while still conscious. Lubarsky, who previously testified during a lower court hearing on the prisoners’ lethal-injection challenge, examined witness descriptions of Irick's execution and concluded “to a reasonable degree of medical certainty” that Irick “was aware and sensate during his execution and would have experienced the feeling of choking, drowning in his own fluids, suffocating, being buried alive, and the burning sensation caused by the injection of the potassium chloride.” Witnesses reported that Irick choked, moved his head, and strained his forearms against restraints, all of which, Dr. Lubarsky said, are signs that he was able to feel the effects of the drugs. Lubarsky also noted that prison officials taped Irick's hands—a step unnecessary to the execution because Irick’s wrists were already restrained—preventing witnesses from observing movements of the fingers and hands that would have been “a clear indicator” that he was not anesthetized. The second and third drugs used in Tennessee are known to be excruciatingly painful if a prisoner is not fully unconscious. A court pleading filed by Kelley Henry, an attorney representing Tennessee’s death-row prisoners in their legal challenge to the execution protocol, graphically described the execution process. “This case is about whether it is constitutional to inject a human with a small bottle of acid—which will destroy the lining of their lungs and cause them to drown in blood—and then to inject them with a paralytic that will leave them conscious but expressionless—unable to speak or scream—feeling as if they are buried alive, and finally to stop their heart with an injection that will, in their last minute of life, cause them to chemically burn alive.” Prior to Irick’s execution, U.S. Supreme Court Justice Sonia Sotomayor dissented from a denial of a stay, 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.” Records from Irick’s execution also indicate that the state violated its own execution protocol by failing to prepare an additional dose of midazolam, the drug used to sedate him. New filings in the lethal-injection suit said that the state’s actions showed that the “protocol is meaningless” and “creates a substantial risk of severe pain and suffering.” Tennessee prosecutors filed a response on September 13 asking the court not to consider Lubarsky's declaration, saying his opinion was based on hearsay and hadn't been subject to cross-examination. The Tennessee high court has removed the case from the state’s intermediate appellate court and set an expediting briefing schedule, an unusual move that Tennessee Supreme Court Justice Sharon Lee criticized as a “rocket docket” that undermines the possibility of meaningful appellate review. On September 14, the Tennessee Supreme Court issued an order deferring a ruling until after oral argument on the appeal of the lethal injection challenge on October 3.
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Nebraska Executes Carey Dean Moore in First Execution in 21 Years
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.
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Tennessee Executes Billy Ray Irick in First Execution Since 2009
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.
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Texas Executes Juan Castillo Without a Hearing on His Claims of Innocence and Ineffective Representation
Texas executed Juan Castillo (pictured) on May 16, 2018, after its state courts stayed his execution to address whether his conviction and death sentence for a botched robbery and murder had been a product of false testimony, but then denied him an evidentiary hearing necessary to prove that claim. No physical evidence implicated Castillo in the murder, and he consistently asserted his innocence. To convict him, Bexar County prosecutors presented testimony from several admitted perpetrators who had been given favorable plea deals, corroborated by the testimony of prison informant, Gerardo Gutierrez, who claimed that Castillo had confessed to him. But in 2013, Gutierrez recanted, admitting in a sworn affidavit that he had lied "to try to help myself." With Castillo facing a December 2017 execution date, the Texas Court of Criminal Appeals granted him a stay on November 28, and directed the trial court to resolve his claim that prosecutors had violated his rights by presenting false or perjured testimony from Gutierrez. Two days later, on November 30, the Bexar County District Attorney's office submitted proposed findings of fact and a proposed order to deny Castillo's petition without a hearing. The next day, on December 1, Judge Maria Teresa Herr adopted the prosecution's proposed findings and order verbatim—changing only the signature line on the order—without permitting Castillo's lawyers to submit proposed findings or to respond to the prosecution's submission. The Texas Court of Criminal Appeals upheld the ruling, and with Texas prosecutors arguing that defects in the state-court process were not a basis for federal review because prisoners "ha[ve] no due process right to collateral proceedings," the U.S. Supreme Court declined to intervene. Castillo also asked the Texas Board of Pardons and Paroles and Governor Greg Abbott to stop his execution. Greg Zlotnick, who represented Castillo in his clemency proceedings, argued that the treatment of Castillo's case by the courts "had been marked by unfair and arbitrary decisions" and the courts had "rubber-stamped" the denial of Castillo's latest petition "with no regard for his opportunity to be heard." Zlotnick argued that Castillo’s trial lawyers "failed to actively investigate the case, speak with witnesses, question police, request additional evidence from law enforcement and district attorney offices, and properly plead legal claims in the courts" and that the post-conviction courts had denied without a hearing Castillo's "common-sense request for DNA testing on physical evidence that could have pointed to another perpetrator." Trial counsel's performance was so bad, Zlotnick said, that "Mr. Castillo even felt compelled to represent himself at sentencing." After the pardons board denied the clemency application, the Texas Defender Service (TDS)—which became involved in the case close to the execution date—sought a 30-day reprieve from Governor Abbott to further develop evidence in the case. In a May 15 letter to the governor, executive director Amanda Marzullo wrote that TDS had discovered additional evidence that contradicted the testimony given at Castillo’s trial, including a video of a woman telling police—contrary to her prior statements—that Castillo had never told her he was the triggerman. Abbott did not act on that request. Castillo was the eleventh person executed in the United States in 2018, and the sixth in Texas.
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Pressed on Execution Practices, Nebraska Obstructs Release of Information
As legislators and the media have pressed Nebraska for information on its secretive execution practices, the executive branch has responded—the state's leading newspapers say—with obfuscation and with a lawsuit that has created a state constitutional crisis. After adopting a new execution policy that the Lincoln Journal Star reported "was written in a single draft without input from the governor, attorney general, Corrections director, outside experts or other state officials," the state Department of Correctional Services has drawn harsh criticism and multiple lawsuits for refusing to disclose information about its execution process to lawmakers, the media, advocacy groups, and prisoners. And after the state legislature issued a subpoena that would require Director Scott Frakes (pictured) to testify about the Department's latest efforts to obtain execution drugs and to respond to allegations that it has not complied with federal drug laws on the handling of controlled substances, state Attorney General Doug Peterson sued the legislature to block Frakes from testifying. The Department's most recent refusals to release information—after having lost $54,400 in taxpayer money in a failed attempt to illegally import execution drugs from India—prompted lawsuits from legal advocacy groups, lawmakers, and prisoners demanding protocol transparency. Senator Ernie Chambers, a long-time opponent of capital punishment, filed a formal complaint with the legislature's Executive Board alleging, among other things, that the state's execution protocol violates federal requirements for handling controlled substances and that its refusal to provide information on the lethal-injection drugs violates the Nebraska Public Records Act. In an editorial, the Omaha World-Herald wrote: "The Nebraska news media and members of the Legislature have raised legitimate questions on that score. They’ve asked the state Department of Correctional Services for information involving its purchase of death penalty drugs and its planned procedure for carrying out an execution, to ensure the applicable laws and procedures were all followed. So far, the department has refused to provide answers. Its message, instead, has been: Just trust us. That’s not good enough." A Journal Star editorial criticized executive branch officials for "hypocritically refus[ing]" to subject themselves to public scrutiny. "We don’t know where the state obtained its lethal injection drugs," the editors wrote."We don’t know how the four-drug cocktail was tested. All we have ... is Corrections’ word that they were done in accordance with the law. Given the state’s costly failed attempts to illegally buy execution drugs overseas, that alone is not good enough." The editorial board said accountability means more than just punishing those convicted of murder. "Accountability must also extend to the state officials responsible for implementing and carrying out capital punishment. ... Before Nebraska can hold convicted killers accountable, it first must do so for itself – something it’s shown more interest in obfuscating than pursuing." The Omaha World-Herald encapsulated the issue as follows: "Is the state following the law in all respects regarding the death penalty, or isn’t it? State officials should stop trying to sidestep this central issue. For the sake of the public interest and respect for the law, they need to answer that question in full."
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Aging of Death Row Raises Humanitarian and Practical Concerns, As Alabama Executes 83-Year Old Prisoner
Death row is aging and increasingly infirm and, as a series of recent death warrants suggest, that phenomenon is raising legal, practical, and humanitarian concerns. One year after executing 75-year-old Thomas Arthur, Alabama on April 19 executed 83-year-old Walter Moody (pictured, left), the oldest person and only octogenarian put to death in the United States since executions resumed in 1977. Attempts to execute prisoners debilitated by physical and cognitive impairments exacerbated by aging have proven problematic and inhumane. After canceling his previously scheduled cancer surgery to issue a death warrant, Alabama failed for 2 1/2 hours to set an intravenous line to execute gravely ill 61-year-old Doyle Hamm on February 22. His lawyer moved to bar the state from trying a second time, describing the failed attempt as "torture." Ohio tried and failed to execute terminally ill 69-year-old Alva Campbell (pictured, center) in November 2017. He then died of his terminal illness on March 3. And in late January 2018, the U.S. Supreme Court halted Alabama's scheduled execution of 67-year-old Vernon Madison (pictured, right), who is legally blind, incontinent, and unable to walk independently, and suffers from vascular dementia caused by strokes that have left him with no memory of the offense for which he was sentenced to death. The Court on February 26 agreed to review his claim that his illness leaves him mentally incompetent to be executed. A Washington Post review of Department of Justice data reported that the percentage of death-row prisoners aged sixty or older has more than doubled this century, up from 5.8 percent of U.S. death rows in 2007 to 12.2 percent in 2013. The aging of the row has also affected executions. An Associated Press review of the Death Penalty Information Center execution database found that the median age of an executed prisoner in the U.S. rose from 34 to 46 between 1983 and 2017. A DPIC analysis of U.S. execution data found that only two of the 933 prisoners executed in the United States between 1977 and 2004 were aged 65 or older. That total was matched in a single 35-day period this year between March 15 and April 19, when Georgia executed 67-year-old Carlton Gary and Alabama executed Mr. Moody. In 23 years of executions between 1977 and the close of the 20th century, ten prisoners aged 60 or older were executed. Thirty-six have already been executed this decade, 13 since 2015 alone. The aging of death row raises humanitarian issues, separate and apart from the risk of botched executions. Speaking to Associated Press, DPIC Executive Director Robert Dunham noted that, while many of the prisoners facing execution have been convicted of terrible crimes, the public is "torn between wanting to punish [them] severely and the belief it is beneath us as a nation to kill a frail person who is already dying. It’s a challenge to our morality and our sense of humanity,” Dunham said. The attempts to execute the infirm also have attracted international attention and approbation. When Alabama sought to execute Madison, David O'Sullivan, the European Union's Ambassador to the United States, wrote "an urgent humanitarian appeal" to Alabama Governor Kay Ivey not to execute him. The Ambassador's letter reminded Alabama that "[t]he execution of persons suffering from any mental illness or having an intellectual disability is in contradiction to the minimum standards of human rights, as set forth in several international human rights instruments." When Ohio sought to execute Campbell, his lawyer, assistant federal defender David Stebbins, predicted that the execution could become a “spectacle” if prison staff were unable to find a suitable vein. “All of this in an attempt to execute an old and frail man who is no longer a threat to anyone,” Stebbins said. In a statement that applies to more and more prisoners facing death warrants, Madison’s lawyer, Bryan Stevenson of the Equal Justice Initiative, summed up the issue: “Killing a fragile man suffering from dementia," he said, "is unnecessary and cruel.”
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