European Commission Announces Tight Controls on Exportation of Lethal Injection Drugs

On December 20, the European Commission announced tough new restrictions on the export of drugs that could be used for executions in the United States. The EC added pentobarbital and sodium thiopental - two drugs on which almost all American executions currently depend - to its list of restricted products that are tightly controlled on the grounds that they may be used for cruel and inhuman treatment or punishment. "The decision today contributes to the wider EU efforts to abolish the death penalty worldwide," said the Commission's vice-president, Catherine Ashton.  The United Kingdom's Business Secretary, Vince Cable, welcomed the new regulations, saying, "We have led the way by introducing national controls on the export to the United States of certain drugs, which could be used for the purpose of lethal injection. However we have always stated our clear preference for action at EU level and I am pleased that, following our initiative, these steps are now being taken." Last year, the sole manufacturer of sodium thiopental, Hospira, Inc., announced it would no longer produce the drug.  In 2011, Lundbeck, Inc., the Danish manufacturer of pentobarbital, made efforts to block the sale of its product to any penal institution in the United States. All U.S. executions in 2011 were conducted by lethal injection.

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California Court Rejects New Lethal Injection Procedures

On December 16, Marin County Superior Court Judge Faye D’Opal rejected California’s new lethal injection protocols because corrections officials failed to consider a one-drug execution method now in practice in other states. Judge D’Opal also criticized the state for ignoring requirements of the law regarding the revision of official procedures. A federal court has also imposed a stay of executions while it is reviewing the state’s 3-drug lethal injection procedures. In 2006, U.S. District Court Judge Jeremy Fogel halted all executions because of concerns that executions in California could result in excessive and unnecessary pain.  No executions have occurred since then.  Natasha Minsker, an attorney with the American Civil Liberties Union of Northern California, said, “The time has come to replace the death penalty with life in prison with no chance of parole. Any attempt to devise new lethal injection rules will take an enormous amount of public employee time and cost hundreds of millions of dollars." A study published earlier this year by U.S. Court of Appeals Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell estimated that taxpayers have spent $4 billion to carry out the state’s 13 executions since 1978 and at least $184 million a year to maintain California’s capital punishment system.

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NEW VOICES: Ohio Supreme Court Justice Testifies for Death Penalty Repeal

On December 14, Ohio Supreme Court Justice Paul Pfeifer (pictured) testified before the state's House Criminal Justice Committee, urging lawmakers to overturn the death penalty law he helped write as a state senator 30 years ago. Justice Pfeifer said, “The death penalty in Ohio has become what I call a death lottery," citing factors such as the location of the crimes and the attitudes of individual county prosecutors as variables affecting whether the death penalty is pursued in a given case. He continued, “It's very difficult to conclude that the death penalty, as it exists today, is anything but a bad gamble. That's really not how a criminal justice system should work.'' As a sitting justice, Pfeifer has continued to issue decisions in death penalty cases and to set execution dates under the law. Of his role, he said, "I have a duty under the law to follow that law. At the same time, we are admonished under the rules that apply to judges that we have a duty to step forward and advocate for changes we think would lead to an improvement in the law.”

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North Carolina Governor Upholds Racial Justice Act, Calling Bias "Unacceptable"

North Carolina Governor Bev Perdue vetoed the bill that would have repealed the state's Racial Justice Act that was passed in 2009. The Act allows death row inmates to appeal their death sentences based on statistical studies showing racial bias. In issuing the veto, the governor, who supports the death penalty, said, “I am vetoing Senate Bill 9 for the same reason that I signed the Racial Justice Act two years ago: it is simply unacceptable for racial prejudice to play a role in the imposition of the death penalty in North Carolina.”  State courts have only recently begun to hear the first appeals filed under the Racial Justice Act. The Act provides that a death row inmate who receives a reprieve through a racial-discrimination challenge will receive a sentence of life without parole.  The Governor also added, "[B]ecause the death penalty is the ultimate punishment, it is essential that it be carried out fairly and that the process not be infected with prejudice based on race." Civil rights leaders and some family members of murder victims had met with the governor and encouraged her to veto the repeal, which was passed after significant changes in the legislature in 2010.

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STUDIES: American Bar Association Releases Assessement of Kentucky's Death Penalty

On December 7, the American Bar Association released a report assessing Kentucky's system of capital punishment and calling for a halt to executions in the state.  The report was prepared by the Kentucky Assessment Team on the Death Penalty, which included law professors, former state supreme court justices, and practicing attorneys.  The two-year study recommended that the state temporarily suspend executions until serious issues of fairness and accuracy are addressed.  The review reported that courts have found an error rate of more than 60 percent in the trials of those who had been sentenced to death.  The review also found that at least 10 of the 78 defendants sentenced to death were represented by attorneys who were subsequently disbarred. Among the problems identified by the Assessment Team were the absence of statewide standards governing the qualifications and training for attorneys in capital cases, and uniform standards on eyewitness identifications and interrogations.  Many of Kentucky's largest law enforcement agencies do not fully adhere to best practices to guard against false eyewitness identifications and false confessions, two of the leading causes of wrongful convictions nationwide.  Linda Ewald, a law professor at the University of Louisville who co-chaired the assessment team, said, “We came in to this with no real idea of what we would find.  But at the close of our two-year deliberations, we were left with no option but to recommend that the Commonwealth halt executions until the problems we identified are remedied. This report is really about the administration of justice in Kentucky.”

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North Carolina Legislature Votes to Repeal Racial Justice Act; Governor May Veto

On November 28 the North Carolina Senate voted to repeal the state's Racial Justice Act, which allowed death row inmates to use statistical evidence of racial bias to challenge their sentences.  The House had earlier approved the repeal measure.  The Act was passed in 2009, and the first cases brought under the law are just now being considered in state court.  There were considerable shifts in the state's legislature in the wake of the 2010 elections, leading to the repeal bill.  Prosecutors had been unsuccessfully fighting application of the law in the courts and have pushed for legislative action.  The Act provides that a death row inmate who receives a reprieve through a racial discrimination challenge will receive a sentence of life without parole.  Darryl Hunt, a former inmate who spent 19 years in prison for a murder he did not commit, reminded the Senate Judiciary Committee that five of the seven inmates who have been exonerated from North Carolina’s death row were, like him, African-American.  Hunt said, “I was one vote away from the death penalty.  I had 11 whites and one black on my jury. If you think that race did not play a factor in my case, then you're not living here in North Carolina."  North Carolina Governor Beverly Purdue, who signed the Racial Justice Act into law in 2009--saying it would ensure death sentences were imposed "based on the facts and the law, not racial prejudice"--must now consider whether to veto the repeal.

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Oregon Governor Declares Moratorium on All Executions

In a statement released on Nov. 22, Governor John Kitzhaber of Oregon announced a halt to all executions in the state.  "I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon values," he wrote. "I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor."  His action halts the upcoming execution of Gary Haugen, an inmate who waived his appeals and was scheduled to die on December 6. The governor further stated he acted, "Both because of my own deep personal convictions about capital punishment and also because in practice, Oregon has an expensive and unworkable system that fails to meet basic standards of justice."

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RACE: Supporters Re-Affirm Importance of North Carolina's Racial Justice Act in Face of Prosecutors' Challenges

Leaders from North Carolina's civil rights groups, such as the NAACP, and from the defense bar have re-affirmed the need for the state's Racial Justice Act, which was passed in 2009.  The Act allows death row inmates to challenge their death sentences using data from statistical studies of racial bias within the state.  The North Carolina Conference of District Attorneys is attempting to have the law repealed because they say it threatens the entire death penalty system.  Tye Hunter from the Center for Death Penalty Litigation said that some of the academic studies being used under the Act show clear patterns of racial bias in the state’s capital punishment system, including exclusion of qualified jurors on the basis of race.  Moreover, he noted,  "We hadn't had an execution for three years before the Racial Justice Act was even passed. So the moratorium on the death penalty, I think, has to do with other issues.”  Two Racial Justice Act cases are currently underway in state courts, though one is currently on hold.  In the active case, prosecutors have repeatedly sought continuances and have unsuccessfully tried to have the assigned Superior Court judge, Greg Weeks, an African-American, removed from the case. 

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INNOCENCE: Texas Forensic Science Commission Closes Case of Possible Innocence

The Texas Forensic Science Commission recently closed its inquiry into the case of Cameron Todd Willingham (pictured), who was executed in Texas in 2004. The Commission was told by the Texas Attorney General that it did not have jurisdiction to rule on the Willingham case.  Hence, in its final report on October 28 on the matter, it declined to issue any finding regarding allegations of negligence or misconduct by the City of Corsicana or the Texas State Fire Marshal in the Willingham matter.  The Commission, however, acknowledged that outdated science regarding arsons played a role in Willingham’s 1991 murder conviction.  Willingham was convicted of setting the fire that killed his three daughters.  Since then, modern fire experts have determined that none of the more than 20 arson indicators identified by the standards of arson science in 1991 are reliable evidence of intentional fire.  Experts say that the cause of fire should have been "undetermined."  Stephen Saloom, policy director for the Innocence Project in New York, said,  "The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence.”  The Commission’s final report also included a commitment from the state fire marshal’s office to review old arson rulings to determine whether convictions were based on the now-debunked science."

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Coalition Including Victims' Families and Law Enforcement Officials Launches Death Penalty Repeal Initiative

A broad range of citizens in California launched a signature campaign on October 25 to replace the death penalty with life in prison and no parole through a ballot initiative in November 2012.  The signature drive was announced at the city hall in San Francisco and was attended by murder victims' families and law enforcement officials, such as San Francisco Sheriff Michael Hennessey (pictured), who support the measure.  Hennessey cited a study released last June showing that California has sent $4 billion on the death penalty since it was restored in 1977. The ballot initiative is called the Savings, Accountability and Full Enforcement (SAFE) for California Act, and the campaign must gather 504,000 voter signatures in order to qualify for the election.  Natasha Minsker, statewide manager for the campaign, said, "Californians are ready for the SAFE California Act because now they realize we have wasted literally billions of dollars on a failed death penalty system.  It's time to take our resources and put them instead toward public safety."  The initiative directs funds saved to go to victims' families and to improve law enforcement.  California has not had an execution since 2006.  A recent Field Poll released last month showed that more voters (48%) would prefer the punishment of life without parole for someone convicted of first-degree murder than the death penalty (40%).

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