LAW REVIEWS: The "Unreliability Principle" in Death Sentencing
A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the "unreliability principle" established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, "if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied." That is, certain classes of defendants can be exempt from the death penalty because juries cannot be relied upon to adequately assess the mitigating factors. This principle applied to both intellectually disabled defendants in Atkins and juvenile defendants in Roper. Sundby argues that the principle should be extended to mentally ill defendants as well. Six factors that the court considered in Atkins and Roper are identified, and subequently applied to defendants with mental illnesses. Among the factors identified are the defendant's impared ability to assist defense attorneys, the defendant's impaired ability to serve as a witness, and the defendant's distorted decision-making skills.
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North Carolina Innocence Commission Frees Another Inmate, 38 Years Late
The same Commission that freed former death row inmates Henry McCollum and Leon Brown in September exonerated another man who had been convicted of murder, Willie Womble (l.). The North Carolina Innocence Inquiry Commission freed Womble on October 17, dismissing his 1976 first-degree murder conviction and life sentence. Womble had been convicted of acting as a lookout while another man, Joseph Perry, robbed a convenience store and killed the cashier. Both Perry and Womble received life sentences. Though Womble had always said he was innocent, he never filed a motion to challenge his conviction, perhaps because of his diminished mental capacity (a disability also present in McCollum and Brown). In 2013, Perry wrote a letter to the Innocence Commission stating that Womble was innocent. When Perry learned that his actual accomplice had died, he decided he could reveal Womble's innocence without putting the other man in prison. The Commission investigated Womble's case and found that his confession had been possibly coerced and written by a detective working on the case. Christine Mumma, executive director of the N.C. Center on Actual Innocence, said, “In 2008, the legislature passed a law requiring the recording of interrogations. This is another case showing how important that is.” Granville County District Attorney Sam Currin supported Womble's exoneration, saying, “I apologized to Mr. Womble and to the family of Mr. Roy Bullock, who was the victim. I just felt it was right. The system and the state of North Carolina failed them for 39 years.” Although not sentenced to death, Womble's case shows the risks of capital punishment and the difficulty in discovering innocence.
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International Community to Focus on Mental Illness and the Death Penalty
On October 10 many international organizations and countries are focusing on the use of the death penalty around the world. The emphasis this year is on mental health issues related to capital punishment, with groups advocating for a ban on the execution of individuals with serious mental illness or intellectual disabilities. People with intellectual disabilities are vulnerable to manipulation during interrogation and have difficulty assisting in their own defense. Mental health problems can be exacerbated by the extreme isolation on death row. Recently, the UN Office of the High Commissioner for Human Rights released a publication, "Moving Away from the Death Penalty: Arguments, Trends, and Perspectives," which also discussed international issues related to the death penalty. In a preface to the publication, UN Secretary-General Ban Ki-moon said, "The death penalty has no place in the 21st century. Leaders across the globe must boldly step forward in favour of abolition. I recommend this book in particular to those States that have yet to abolish the death penalty. Together, let us end this cruel and inhumane practice."
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Georgia Judge Would Allow Execution of Intellectually Disabled Man, But Calls for Higher Court Review
A county judge in Georgia denied relief for Warren Hill, a death row inmate whose diagnosed intellectual disabilities have failed to meet the state's narrow standard for exemption from the death penalty. However, the judge encouraged the state Supreme Court to consider whether a recent U.S. Supreme Court ruling, Hall v. Florida, should require Georgia to modify its standard. Chief Judge Thomas Wilson of Butts County said, "In light of the severity of the penalty in this case, this Court hopes that, in reviewing [Mr. Hill’s] application to appeal, the Georgia Supreme Court will fully consider any potential application of Hall v. Florida to [his] case." In Hall v. Florida, the Supreme Court directed Florida to broaden its interpretation of intellectual disability. Florida refused to spare an inmate whose IQ was just one point above their cutoff. Similarly, Georgia has the narrowest standard of proof for intellectual disability in the entire country, requiring defendants to prove their disability beyond a reasonable doubt. Brian Kammer, an attorney for Hill, said,"Mr. Hill should not be eligible for execution in a nation which does not execute persons with intellectual disability, and he would not be eligible for execution in any other jurisdiction in the nation."
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POSSIBLE INNOCENCE: Originally Sentenced to Death, Brothers May Now Be Cleared in North Carolina
UPDATE: Both defendants freed after judge overturns convictions. EARLIER: Henry McCollum (l.) and Leon Brown (r.), two brothers who were convicted of murder and sentenced to death in 1984, may soon be freed because of evidence uncovered by the North Carolina Innocence Inquiry Commission. McCollum was 19 and Brown was 15 when they confessed to the rape and murder of 11-year-old Sabrina Buie. Both men are intellectually disabled - McCollum has an IQ in the 60s and Brown has scored as low as 49 on IQ tests. McCollum and Brown have maintained their innocence since their trial, saying they were unaware they were signing a confession. “I’d never been under such pressure, people yelling and screaming at me,” McCollum said of his interrogation. “I was scared, and was just trying to get out of that police station and go home.” In 2010, Brown, who is now serving a life sentence for rape after his murder conviction was thrown out, contacted the Innocence Commission about his case. The Commission found DNA evidence near the crime scene belonging to another man, Roscoe Artis, who was sentenced to death for a crime similar to the one for which McCollum and Brown were sentenced to death. (Artis' sentence was later reduced to life.) On September 2, defense attorneys for Brown and McCollum will present the evidence and ask a Robeson County judge to free both men. Robeson County District Attorney Johnson Britt, who is not opposing the request, said, “The whole case rests on the confessions, and the DNA evidence threw those confessions under the bus.”
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NEW STATEMENTS: The Death Penalty Is Incompatible with Human Dignity
On July 19 Prof. Charles Ogletree of Harvard University Law School wrote in the Washington Post about the future of the death penalty in the U.S. Noting that the U.S. Supreme Court recently affirmed (Hall v. Florida) that executing defendants with intellectual disabilities serves “no legitimate penological purpose,” Prof. Ogletree said this reasoning could be applied to the whole death penalty: "The overwhelming majority of those facing execution today have what the court termed in Hall to be diminished culpability. Severe functional deficits are the rule, not the exception, among the individuals who populate the nation’s death rows." He cited a study published in the Hastings Law Journal that found that "the social histories of 100 people executed during 2012 and 2013 showed that the vast majority of executed offenders suffered from one or more significant cognitive and behavioral deficits," such as mental illness, youthful brain development, or abuse during childhood. He concluded that when you examine capital punishment more closely, "what you find is that the practice of the death penalty and the commitment to human dignity are not compatible." Read the op-ed below.
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ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared
Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."
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Georgia Supreme Court Upholds Lethal Injection Secrecy
In a 5-2 ruling issued on May 19, the Georgia Supreme Court upheld the state's law that hides the source and the identity of the preparer of drugs and equipment used in executions. The court said, “We conclude that Georgia’s execution process is likely made more timely and orderly by the execution-participant confidentiality statute...." The ruling lifted the stay of execution that was in place for Warren Hill, whose lawyers challenged the law. In a dissent, Justice Robert Benham referenced the recent botched execution in Oklahoma, writing, “I fear this state is on a path that, at the very least, denies Hill and other death row inmates their rights to due process and, at the very worst, leads to the macabre results that occurred in Oklahoma." Hill's lawyer, Brian Kammer, said the decision, “effectively affords the State of Georgia carte blanche to alter their lethal injection protocol in any way it sees fit, and to conceal from the public and even the courts the identity and provenance of the chemicals it intends to use to carry out executions.” A similar secrecy law in Missouri is being challenged by five news organizations, who say the law violates the First Amendment.
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Supreme Court Strikes Down Florida's Strict IQ Cutoff for Death Penalty
On May 27, the U.S. Supreme Court held in Hall v. Florida that Florida's strict IQ cutoff for determining intellectual disability in capital cases is unconstitutional. The Court concluded, "Florida’s law contravenes our Nation’s commitment to dignity and its duty to teach human decency as the mark of a civilized world." In 2002, the Court banned the execution of people with "mental retardation," but allowed states leeway in selecting a process for determining who would qualify for that exemption. According to Florida's Supreme Court, defendants with an IQ even one point above 70 cannot be considered intellectually disabled, even though most states allow for a margin of error in such tests. The Supreme Court's ruling stated that Florida's strict rule "disregards established medical practice" and noted that the "vast majority of states" rejected such a narrow interpretation of IQ scores. The Court held that, "When a defendant's IQ test score falls within the test's acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits." Hall will receive a new hearing on his intellectual disability claim.
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Texas Execution Stayed Over Intellectual Disability Claim
The U.S. Court of Appeals for the Fifth Circuit stayed the execution of Robert Campbell just hours before he was scheduled to be executed in Texas on May 13, granting him permission to file a new petition on his claim of mental retardation. If Campbell is intellectually disabled, he is barred from execution by the Supreme Court's 2002 ruling in Atkins v. Virginia. The unanimous three-judge panel noted that Texas authorities had withheld IQ test results from Campbell and misled his attorneys: "Throughout this litigation in the state and federal courts regarding Campbell’s ability to assert an Atkins claim on the merits, the State never disclosed that it was in possession of evidence of three intelligence tests suggesting that Campbell was intellectually disabled." State files contained the results of IQ tests including one from Campbell's childhood, with a score of 68, and one from shortly after his arrival on death row at age 19, with a score of 71. Robert Owen, an attorney for Campbell, said, "It’s very clear now that the evidence strongly supports the diagnosis of mental retardation for Mr. Campbell, and it might be best for everyone for the state to give up its pursuit of executing him and resolve this case by reducing his death sentence to life imprisonment rather than face the prospect of months or years of further litigation."
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