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California Governor Announces Moratorium on Executions

California Governor Gavin Newsom on March 13, 2019 declared a moratorium on executions in the state with the nation’s largest death row. Newsom implemented the moratorium through an executive order granting reprieves to the 737 prisoners currently on California’s death row. He also announced that he was withdrawing the state’s execution protocol—the administrative plan by which executions are carried out—and was closing down the state’s execution chamber. In his executive order imposing the moratorium, Newsom said, “I will not oversee the execution of any person while Governor.”

With the governor’s announcement, California joins Colorado, Oregon, and Pennsylvania as states in which governors have imposed moratoria on executions, meaning that more than one-third (34.1%) of all death-row prisoners in the U.S. are now incarcerated in states in which governors have said no executions will occur. As a result of legal challenges to the state’s execution protocol and appeals challenging the constitutionality of the state’s death-penalty system, California has not carried out an execution since 2006. “Our death penalty system has been, by all measures, a failure,” Newsom said in a statement accompanying his moratorium declaration. “It has discriminated against defendants who are mentally ill, black and brown, or can’t afford expensive legal representation. It has provided no public safety benefit or value as a deterrent. It has wasted billions of taxpayer dollars. But most of all, the death penalty is absolute. It’s irreversible and irreparable in the event of human error.”

Despite the large number of death sentences in California, the state has conducted only 13 executions since reintroducing the death penalty in 1978. A 2011 study estimated the state had spent more than $4 billion on death penalty trials, appeals, and incarceration, and estimated an annual savings of $170 million if the death penalty were abolished. In his executive order, the governor said that the cost has since risen to $5 billion. In his remarks at the news conference, Newsom said that 164 wrongly convicted prisoners have already been exonerated from U.S. death rows since 1973, and an estimated 30 innocent prisoners may be among those still sentenced to death in California. In 2012 and 2016, voters narrowly rejected referenda that would have abolished capital punishment. In 2016, a voter referendum intended to speed up executions by limiting appeals passed by a two-percentage point margin. That measure, Proposition 66, was upheld but curtailed by a 2017 California Supreme Court decision.

Governor Newsom follows the lead of governors in three other Western U.S. states who have imposed moratoria on executions in the last decade. Governors John Kitzhaber of Oregon (November 2011), John Hickenlooper of Colorado (May 2013), and Jay Inslee of Washington (January 2014) halted executions in their states, and Kate Brown of Oregon announced in February 2015 that she would extend the existing moratorium. Washington’s supreme court struck down the death penalty in October 2018 on grounds of geographic arbitrariness and racial bias, making it the 20th state to abolish the death penalty. Legislators in Colorado and Oregon are considering bills to abolish or seriously restrict the death penalty, and a Republican-backed bill to repeal the death penalty passed the Wyoming state House and a Senate committee earlier this year before failing in a vote before the full Senate. No state west of Texas carried out any executions in 2018, and those states collectively imposed the fewest new death sentences since California brought back capital punishment in 1978. Newsom said “[t]he intentional killing of another person is wrong” and that his moratorium was a first step towards the ultimate goal of ending the death penalty in California.


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Colorado Governor Likely to Commute Death Sentences if State Abolishes Death Penalty

Colorado Governor Jared Polis (pictured) has said he will “strongly consider” commuting the death sentences of the three men on the state’s death row if the state abolishes the death penalty. In a February 7, 2019 interview on Colorado Public Radio, Polis told Colorado Matters host Ryan Warner, “if the legislature sends us a bill to eliminate the death penalty in Colorado, I would sign that bill … [and] I would certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison.” Polis, who voiced his opposition to the death penalty during his 2018 campaign for governor, reiterated his views during the Colorado Matters interview. “I think it’s not cost effective, I think it’s not an effective deterrent,” he said. “If the State Republicans and Democrats were to say, and I were to sign a bill that said we no longer have the death penalty in Colorado, whether it's formally in the bill or not,” the Governor said, “then I would strongly consider making sure that penalty that is no longer on the books in Colorado is not carried out for anybody who's in that process.”

Colorado’s previous governor, John Hickenlooper, imposed a moratorium on executions in 2013. Hickenlooper said he initially had supported the death penalty, but changed his views when he learned more about the issue: “My whole life I was in favor of the death penalty. But then you get all this information: it costs 10 times, maybe 15 times more money to execute someone than to put someone in prison for life without parole. There’s no deterrence to having capital punishment. And I don’t know about you, but when I get new facts, I’ll change my opinion. I didn’t know all of this stuff.” Former prosecutor and state representative Doug Friednash, who sponsored a bill to expand Colorado’s death penalty to include multiple murders committed during a single criminal episode, has undergone a similar evolution. In a February 1 op-ed in the The Denver Post, Friednash called on the legislature to repeal its capital punishment law. “Twenty-five years ago, as a freshman House Democrat, I sponsored legislation to expand the death penalty,” Friednash wrote. “I was wrong.” The law he supported was used to prosecute James Holmes, who killed 12 people in a shooting at an Aurora movie theater in 2012, and Dexter Lewis, who stabbed five people to death in a Denver bar. Juries sentenced both to life. Holmes’ case, he says, illustrates some of the problems with the death penalty – the law failed to deter Holmes and his capital trial, which resulted in a life sentence, cost taxpayers approximately $5 million. Holmes was tried in Colorado’s 18th Judicial District, where defendants are "four times more likely to face a death prosecution than elsewhere in the state.” All three of the state’s death-row prisoners are Black men who were tried in that district. Friednash concludes, “It’s time to close this chapter in Colorado’s history books. The Colorado legislature should abolish the death penalty this session. And then Gov. Jared Polis should commute the death sentences of our three death-row inmates to life without the possibility of parole.”

In a February 9 editorial, the Boulder Daily Camera also urged the legislature to abolish the death penalty. Citing the lack of deterrent effect and the high cost of capital punishment, the paper wrote: “If the worth of a public policy is its ability to achieve policy objectives, then capital punishment is a failure.” The editorial also noted “great economic, geographic, and racial disparities” in Colorado’s imposition of the death penalty. “The location of the county line in relation to a crime,” it said, “should not determine whether a defendant lives or dies, and neither should the skin color of the accused.” And in conclusion, it pointed to former Governor Bill Ritter’s 2011 posthumous pardon of Joe Arridy, who was wrongfully executed by Colorado in 1939 despite what Ritter called “an overwhelming body of evidence” that Arridy was innocent. “The state-sanctioned killing of an innocent person is more morally repugnant than the execution of a guilty one could be morally just,” the editorial board wrote. “For this reason alone — given that innocent people almost certainly die under a regime of capital punishment — Colorado should abolish the death penalty.”


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Lawyers Seek Clemency for Tennessee Death-Row Prisoner Dying of End-Stage Cancer

Charles Wright (pictured), a prisoner on Tennessee’s death row, may die of cancer before the October 10, 2019 execution date that the state has set for him. His attorneys and supporters, including a former U.S. Congressman, are seeking clemency so Wright can spend his final days with his family. Wright has prostate cancer that has spread to his bones, and was recently moved from Tennessee’s death-row facility to a prison infirmary. He is asking the governor to either reduce his sentence to time served or to life without parole, allowing him to apply for a medical furlough, a special release that can be granted to terminally ill prisoners, but not to those on death row.

In September 2018, former Congressman Bob Clement wrote to then-Governor Bill Haslam, asking Haslam to grant clemency to Wright. “It is clear to me that Charles is not among the ‘worst of the worst’ for whom the ultimate punishment is to be reserved,” Clement wrote. “He was a product of his environment and the deprivation in which he — I will not say ‘was raised’ as the fact is, Charles and his siblings basically raised themselves. He turned to drugs early in his teenage years — he was fourteen or fifteen when an older drug dealer put a heroin needle in Charles’ arm. Charles does not absolve himself of his responsibility for making wrong choices.” Clement’s father, Frank Clement, served as governor of Tennessee in the 1960s, and commuted all the state’s death sentences in 1965, after the legislature defeated an abolition bill by one vote.

In court filings, Wright’s attorneys also raised issues of arbitrariness and racial bias. Wright, who is Black, was convicted and sentenced to death for a drug-related double-homicide in 1985. According to his attorneys, capital cases in the 1980s were infected with racial bias, and Wright’s case exemplifies the arbitrariness of Tennessee’s death penalty. While Wright was sentenced to death, many other drug-related murders have resulted in life sentences, even when there were more than two victims. A 2018 study of Tennessee's death-penalty system called it “a cruel lottery” and found that the best indicators of whether a case would result in a death sentence were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case.


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Supreme Court Lets Death Sentence Stand for Prisoner Whose Attorney Presented No Mitigating Evidence

Over a sharp dissent by three justices, the United States Supreme Court has let stand the death sentence imposed on a Georgia prisoner who was suffering from dementia, brain damage, and borderline intellectual functioning, but whose trial lawyer failed to present any mitigating evidence. On January 7, 2019, the Supreme Court denied the petition for writ of certiorari filed on behalf of death-row prisoner Donnie Cleveland Lance seeking the Court’s review of the Georgia Supreme Court's denial of relief in his case. Justice Sonia Sotomayor – joined by Justices Ruth Bader Ginsburg and Elena Kagan – dissented, writing that “the Court’s refusal to intervene permits an egregious breakdown of basic procedural safeguards to go unremedied.”

Lance was sentenced to death by a Georgia court for the 1997 murder of his ex-wife and her boyfriend. Lance’s trial lawyer – a solo practitioner who was convinced he could persuade the jury of Lance’s innocence – asked the trial court to appoint a second lawyer to handle any potential penalty phase. The court denied that request and also denied a defense motion for funds to retain expert witnesses to challenge the range of experts hired by the prosecution in the case. After the court denied his motions, Lance’s lawyer conducted no penalty-phase investigation and did nothing to prepare for the penalty phase. Following Lance’s conviction, counsel made no penalty-phase opening statement, called no witnesses, and presented no mitigating evidence. In his cursory closing argument, counsel asked the jury to think of Lance’s family and to not seek vengeance. 

New counsel represented Lance in his state post-conviction proceedings and presented extensive evidence of Lance’s serious cognitive impairments. Four mental health experts agreed that Lance had brain damage in his frontal lobe, that his IQ was on the borderline for intellectual disability, and that he suffered from clinical dementia. While the three defense experts agreed that Lance’s brain damage significantly impaired his ability to control his impulses and conform his conduct to the law, the state’s expert disagreed about the extent of his impairment. The trial court overturned Lance’s death sentence, ruling that counsel had provided ineffective representation. However, the Georgia Supreme Court reversed, holding that while counsel’s performance was deficient, the presentation of mitigating evidence would have been futile given the facts of the murder. On federal habeas corpus review, the Georgia federal courts ruled that the Georgia Supreme Court had not unreasonably applied Supreme Court precedent when it upheld Lance’s death sentence.

The three-justice dissent from the U.S. Supreme Court’s decision not to intervene argued that the Georgia Supreme Court decision was “an objectively unreasonable application” of U.S. Supreme Court precedent and had “mischaracterized or omitted key facts and improperly weighed the evidence.” The evidence of Lance’s “‘serious’ and ‘significant’” mental impairments, Justice Sotomayor wrote, “reasonably could have affected at least one juror’s assessment of whether Lance deserved to die for his crimes, and Lance should have been given a chance to make the case for his life.” Instead, she said, “Lance may well be executed without any adequately informed jury having decided his fate.”


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