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Missouri Juror Who Voted for Death Says New Evidence Would Have Changed Sentencing Decision

In 1997, a St. Louis County, Missouri jury unanimously voted to sentence David Barnett to death. Eighteen years later, after learning horrific details of the physical and sexual abuse to which Barnett had been subjected as a small child, Andrew Dazey - the jury foreman in Barnett's trial - says "[t]here’s no way” he would have voted for death. At trial, Barnett's lawyer presented some evidence of his client's abuse, mental illness, and suicide attempts. However, he failed to present at least 11 available mitigation witnesses who could have provided critical additional mitigating evidence, including evidence that Barnett's mother had abused alcohol and diet pills while she was pregnant with him, wanted to abandon the newborn at the hospital, and repeatedly gave Barnett away - once to a suicidal, drug addicted prostitute and other times to a violent alcoholic man who permitted the child to be sexually abused, physically assaulted, and forced to drink dishwashing liquid, among other horrors. When U.S. District Judge E. Richard Webber overturned Barnett's death sentence in August, he wrote that, with the new evidence presented on appeal, "at least one juror would have determined the balance of aggravating and mitigating circumstances did not warrant death in Mr. Barnett’s case." Juror interviews by the St. Louis Post-Disatch suggest that he was right. Dazey told the paper, "David should not be on death row." Dazey believes that “had a fraction of this information been available” at trial, a majority of jurors would have voted differently. "I have never read where there was so much rejection in one life...If this wasn’t a case I was involved in, I would have thought it was a fiction novel. Everybody failed to recognize what was going on here."  


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NEW VOICES: Why Prosecutors in Texas, Pennsylvania Are Seeking Death Penalty Less Often

Prosecutors across the country are seeking the death penalty less frequently and in recent interviews two district attorneys, one from Texas and one from Pennsylvania, have given some of their reasons why. Randall County, Texas District Attorney James Farren (pictured) told KFDA-TV in Amarillo that his experience handling one particularly lengthy and costly capital case has changed how he will make decisions in future cases that are eligible for the death penalty. He said that his office has spent, "conservatively...at least $400,000" on the prosecution of Brittany Holberg, who has been on death row since 1998. Farren said the costs are too high for taxpayers and "I do not want to subject them to this kind of thing any longer." While he said he still supports the death penalty, Farren predicted that, in the near future, the U.S. Supreme Court "likely will decide society has evolved to the point that it’s no longer appropriate." In an interview with the Reading EagleJohn T. Adams, District Attorney of Berks County, Pennsylvania, says that he rarely seeks the death penalty and is "just as happy with a life sentence as I am a death sentence." If defendantants are sentenced to life without parole, Adams says, "[t]hey will not be a threat to our community ever again. And frankly, community safety is the utmost of my concerns." Adams adds, "I think you will find throughout Pennsylvania that we are seeking [the death penalty] less and less, and I think that's good."


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DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015

On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press ReleaseView a video summarizing the report. (Click image to enlarge.)


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NEW VOICES: South Dakota Republican Legislator to Propose Death Penalty Repeal Bill

South Dakota state Senator Arthur Rusch (R-Vermillion, pictured), a former trial court judge who presided over a capital trial in which a defendant was sentenced to death, said he will be introducing legislation next year to repeal the state's death penalty. Rusch said he supports repeal because of the emotional toll of capital trials on juriors and because of the financial impact of capital punishment. As a former Lincoln County circuit court judge, Rusch presided over the 1997 trial of Donald Moeller, and saw firsthand the anguish jurors experienced when they sentenced Moeller to death. Because of that experience, he said, "I think I'm more knowledgeable about the emotional toll. It's really hard on people having to make that decision." On the issue of cost, he said, "I know there’s this reaction that keeping people in jail for many, many years is expensive, but it’s nowhere near as expensive as the court costs." Death penalty abolition bills have previously failed in committee in South Dakota, but Senator Bernie Hunhoff (D-Yankton) said that the support of Republicans like Rusch could change that and allow the state to follow in the footsteps of neighboring Nebraska. "You can see that gradual transformation in Nebraska, and you’re seeing that very same thing here," said Sen. Hunhoff, who has sponsored past repeal bills in South Dakota. South Dakota has three people on death row, and has executed three people since 1976.


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NEW VOICES: Retired Generals Call for Review of Status of Military Veterans Facing Death Penalty

In an op-ed for USA Today, three retired generals call for systemic review of the status of veterans on death row nationwide and urge decision-makers in capital cases to seriously consider the mental health effects of service-related PTSD in determining whether to pursue or to impose the death penalty against military veterans. Calling DPIC's new report, "Battle Scars: Military Veterans and the Death Penalty," "a wake-up call for an issue that few have focused on," Brigadiers General (Ret.) James P. Cullen, David R. Irvine, and Stephen N. Xenakis write that "[c]ountless veterans have endured violence and trauma that few others can fully imagine" but defense attorneys in capital cases "are often not adequately prepared to investigate and present" this evidence and prosecutors and judges often treat it dismissively. They say that, "at a minimum, when a judge or jury is weighing a person’s life or death, they should have full knowledge and understanding of that person’s life history. Veterans with PTSD — and, in fact, all those with serious mental illness at the time of their crime — deserve a complete investigation and presentation of their mental state by the best experts in the field." Citing DPIC's report, the generals discuss the cases of Andrew Brannan, James Davis, and John Thuesen, who suffered from combat-related PTSD but were sentenced to death without adequate consideration of their conditions. They contrast the often untreated "deeply debilitating" long-term wounds of combat PTSD to the physical wounds for which veterans do receive treatment. "PTSD can be treated," they write, "but in one study only about half of the veterans who needed treatment received it." They conclude with a call to action. "We should begin by determining the exact scope of this problem: Who are the veterans on death row? How could their military experience have affected their commission of a crime? How well were their disabilities investigated and presented in court? And what should be done when the system fails them? Veterans facing the death penalty deserve this assistance." (Click image to enlarge.)


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Missouri Scheduled to Execute Man Despite Evidence of Intellectual Disability

Ernest Johnson (pictured) is scheduled to be executed in Missouri on November 3, despite strong evidence that he is intellectually disabled and therefore ineligible for execution. Johnson has shown signs of intellectual disability throughout his life: he walked and talked much later than his siblings, he was twice held back a grade in school, academic test scores placed him in the bottom 1-2% in math and reading, and his siblings say he struggled with basic skills like using a knife and fork. His IQ scores have consistently fallen around or below 70, a common IQ marker for individuals with intellectual disability. Despite all this evidence, Johnson faces execution because, in the words of former U.S. Attorney John N. Gallo, "the facts of Johnson’s disability were clouded in court by the prosecutor’s inflammatory rhetoric." A prosecutor argued that Johnson was not “a weak, little skinny, mentally retarded kid” and told his jury, "To decide it's more likely true than not that this guy is mentally retarded is an insult, an insult to these victims." The prosecutor also accused Johnson of intentionally lowering his IQ scores, based upon the opinion of a technician who lacked any training in administering IQ tests or making clinical observations about them. In an op-ed for the St. Louis Post-Dispatch, Gallo urged Missouri Governor Jay Nixon to commute Johnson's sentence to life without parole, saying, "to allow this execution to go forward would be to sanction a gross injustice." [UPDATE: The U.S. Supreme Court stayed Johnson's execution, but not as a result of his intellectual disability. The Court ruled that Johnson was entitled to pursue an appeal to determine whether Missouri's execution protocols are unconstitutionally cruel and unusual as applied to a person with Johnson's particular medical condition. Johnson has a brain tumor, lesions, and scarring that his experts say create a substantial risk of seizures and extreme pain if executed by lethal injection with pentobarbital.]


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President Obama Calls Death Penalty "Deeply Troubling"

In an interview with Bill Keller of The Marshall Project, President Obama said the administration of the death penalty is "deeply troubling," and questioned the manner in which capital punishment is applied in the United States. While the President said that he is not opposed to capital punishment "in theory," he expressed concern about issues including racial bias, wrongful convictions, and botched executions. "We know, statistically, that there's a racial bias that has been built into the death penalty," the President said. "We know that it is hugely inefficient, it takes a long time. We know that there were people who've been on death row that have been freed because, later on, it's been proven that they were innocent. We know that, in the application of the death penalty, we've had recent cases in which, by any standard, it has not been swift and painless, but rather, gruesome and clumsy. And all of this, I think, has led me to express some very significant reservations." President Obama said that these reservations had led him to direct the Department of Justice to "take a hard look" at the death penalty, and that "at a time when we're ... thinking about how to make the system more fair, more just," an examination of the death penalty should be included as part of efforts to bring about broader federal criminal justice reform. 


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New Position of National Association of Evangelicals Shows Cracks in Death Penalty Support

Recognizing that "a growing number of evangelicals now call" for a shift away from the death penalty, the National Association of Evangelicals - an umbrella group for congregations representing millions of evangelical Christians in the United States - has backed away from its prior strong support for capital punishment. A newly adopted NAE resolution states, "Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation. We affirm the conscientious commitment of both streams of Christian ethical thought." The resolution says "Nonpartisan studies of the death penalty have identified systemic problems in the United States" and expresses concerns about "the alarming frequency of post-conviction exonerations." Previously, the NAE had been entirely supportive of the death penalty. Shane Claiborne, an evangelical Christian author and activist, called the NAE's change, "a big deal," saying, "For evangelicals, one of the core tenets of our faith is that no one is beyond redemption. The death penalty raises one of the most fundamental questions for evangelicals: Do we have the right to rob someone of the possibility of redemption?" According to a Pew Research Center poll from March 2015, white evangelical Protestants were more supportive of the death penalty than any other group, with 71% in favor, although support had dropped 6 percentage points since 2011. 


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NEW VOICES: The Impact of Capital Punishment on Corrections Workers

In an op-ed for the Pittsburgh Post-Gazette, former corrections official David Rose criticizes the arbitrariness and dehumanizing nature of the death penalty. Rose, who spent 30 years working in corrections in Pennsylvania, Florida, and New Jersey, said, "I don’t think the public realizes the impact that executions have on the public servants who are tasked with carrying them out." Rose draws on his own experiences and those of his colleagues to describe the toll that capital punishment takes on people who work in prisons. He says he knows of no corrections officials who believe the death penalty is necessary for the safety and security of prison personnel, but has met a number who considered the death penalty "a waste of money that caused serious security issues when executions were actually carried out." Rose said it is "sometimes difficult to distinguish those who end up on death row from those who get lesser sentences based on their crimes or level of culpability" and describes a time he was assigned to monitor a newly death-sentenced inmate until he could be transferred to death row: "I still remember the time that I spent sitting outside the cell of that condemned inmate, thinking of how absurd it was that my employment could one day depend on getting some inmates ready for release and another day on keeping an inmate alive so the state could kill him." Rose recommends other programs in place of the large amounts taxpayers spend on the death penalty.


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NEW VOICES: Newt Gingrich "More Open" to Death Penalty Repeal After Pope's Speech

Former Speaker of the U.S. House of Representatives Newt Gingrich said he is "more open" to the abolition of the death penalty after hearing Pope Francis' address to Congress. Gingrich, who converted to Catholicism several years ago, said he was "very impressed" with Pope Francis' comments. In an appearance on HuffPost Live, Gingrich highlighted the work he has done on criminal justice reform, saying, "I very deeply believe we need to profoundly rethink what we've done over the past 25 years in criminal justice." With regards to the death penalty, he raised particular concerns about innocence: "You do want to be careful not to execute somebody who you find later on, as we've found, to be innocent." Openness to the idea of abolition represents a significant change in Gingrich's stance on the issue, as he was House Speaker when Congress passed the law (known as the Antiterrorism and Effective Death Penalty Act (AEDPA)) limiting the availability of federal judicial review of death sentences imposed in the state courts and once advocated a mandatory death penalty for drug smugglers.


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