Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death
The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”
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Alabama Governor Signs Law Shortening Death-Penalty Appeals
On Friday, May 26, Alabama Governor Kay Ivey (pictured) signed into law a statute denominated the "Fair Justice Act," which is designed to shorten the state death-penalty appeals process. The law constricts the amount of time death-row prisoners have to file appeals, imposes time limits for judges to rule on appeals, and requires prisoners to pursue their direct appeal and post-conviction appeal simultaneously, including raising claims of appellate counsel's ineffectiveness while appellate counsel is still handling the case. Governor Ivey characterized the law—which will apply to all defendants sentenced to death on or after August 1, 2017—as "strik[ing] an important balance between protecting the rights of a defendant and the state's interest in allowing justice to be achieved effectively and swiftly." Alabama Attorney General, Steve Marshall, said the statute "streamlines the appellate process" but "does not diminish the thoroughness of appellate review of death penalty cases." Critics of the law, however, say that is precisely what it does. Linda Klein, the President of the American Bar Association—which calls for fair process in the administration of capital punishment but takes no position on the death penalty itself—said that the new law "unduly limit[s] counsel’s ability to conduct that critical post-conviction investigation" and will "make Alabama an outlier on how appeals and post-conviction cases are handled." Birmingham civil-rights attorney Lisa Borden said Alabama capital cases typically suffer from a lack of “detailed investigation" into what the issues in the case actually are and if the state curtails the time for post-conviction investigation, "you are going to have people whose valid claims, whose important claims [are] cut off forever and people are going to die.” She said, "If Alabama really wants to fix the process[, it should] . . . provide competent representation and resources to people from the beginning." The National Registry of Exonerations has found that more than half of all murder exonerations involved prosecutorial failures to disclose exculpatory evidence, and that official misconduct was present in 87% of death-row exonerations of black defendants and 67% of death-row exonerations of white defendants. The study also showed that it took an average of four years longer to exonerate an innocent black defendant wrongly convicted of murder and sentenced to death than a wrongly convicted white death-row prisoner. Anthony Ray Hinton, an innocent African-American man who spent nearly 30 years on Alabama's death row for a crime he did not commit, has said that if he were convicted under the Fair Justice Act, "I would have been executed despite my innocence." Hinton says it took more than 14 years before he was able to obtain the competent representation and expert assistance necessary to prove his innocence.
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EDITORIALS: Seattle Times Urges End to Washington's "Zombie" Death Penalty
"The death penalty in Washington is like a zombie, not alive or dead, yet continuing to eat its way through precious resources in the criminal-justice system," The Seattle Times editorial board declared on May 21, urging the state legislature to end capital punishment. Washington currently has a moratorium on executions, imposed by Governor Jay Inslee in 2014, leading the Times to declare the practice "effectively dead." But because death sentences can still be imposed, and appeals continue for the eight men on death row, capital punishment is "still alive on the books." The editorial says this "limbo...gives no peace to victims’ families." It also leaves prosecutors to decide whether to continue seeking the death penalty, which they have done less often in recent years, "perhaps influenced by the legal uncertainty, the apparent reluctance of some juries and the extra $1 million or more that a death-penalty sentence adds to a murder case." The editorial calls the death penalty, "overly expensive, ineffective and immoral," joining current and former Attorneys General in asking the legislature to take up a repeal bill. The chair of the Senate Judiciary Committee has agreed to hold a hearing on an abolition bill if the House takes action first. Attorney General Bob Ferguson believes a House vote may uncover hidden support for repeal: “You don’t know that reaction if you don’t take a vote,” he said. The Seattle Times agrees: "The public wants bold leadership on important issues. A path to repeal is through the Legislature, either this year or next — if they have the courage to act."
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Death-Row Exoneree, Law Professor, Attorney Voice Opposition to Alabama's "Fair Justice Act"
Soon after passing legislation to make death penalty trials fairer by preventing judges from overriding jury recommendations of life sentences, the Alabama legislature is taking steps to enact a bill that critics say would make capital appeals far less fair. The bill, denominated the "Fair Justice Act," would constrict the amount of time death-row prisoners have to file appeals, impose deadlines for judges to rule on appeals, and require prisoners to pursue their direct appeal and post-conviction appeal simultaneously. Critics of SB 187/HB 260, which has passed the Senate and been approved by the House Judiciary Committee, include Harvard Law School Professor Ronald Sullivan Jr., Alabama death-row exoneree Anthony Ray Hinton, and Birmingham attorney Lisa Borden, who say the proposal is neither fair nor just. They argue that the bill would reduce the quality of appellate representation, insulate trial errors from appellate review, and increase the risk of executing innocent people. Sullivan called the bill "deceitfully named" and wrote it would "undermine much of the progress" made when Alabama recently became the last state in the U.S. to end judicial override. Hinton, who spent 30 years on Alabama's death row before being exonerated, said, "If proposed changes to Alabama's postconviction procedures under consideration by the state legislature had been enacted, I would have been executed despite my innocence." Hinton explains that he spent 14 years looking for volunteer lawyers who could help him prove his innocence, saying, "Because the so called "Fair Justice Act" now pending before the state legislature puts time restrictions on how long death row prisoners have to prove their innocence or a wrongful conviction, this legislation increases the risk of executing innocent people and makes our system even less fair." Borden raises concerns that the poor quality of trial-level representation will spill over into the proposed shortened appeals process. "The average trial of a capital case with appointed counsel takes just a few days, given appointed counsel's frequent lack of preparation and failure to challenge the State's case. ...The attorneys and experts who will try to uncover and correct the injustices done to poor defendants must not be forced to rush through the process too." She suggests, "If Alabama wants to save taxpayers millions of dollars, and provide certainty and finality for the peace of mind of the victim's families, it could do so by abolishing the death penalty, or by limiting its use to only the most egregious cases and providing real, effective representation for those charged with capital crimes."
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Louisiana Legislature Considers Bipartisan Measure to Abolish Death Penalty
Three Louisiana legislators, all of them former law enforcement officials, have proposed legislation to abolish the state's death penalty. Sen. Dan Claitor (R-Baton Rouge, pictured), a former New Orleans prosecutor who chairs the Senate Judiciary Committee, is the primary author of Senate Bill 142, which would eliminate the death penalty for offenses committed on or after August 1, 2017. The bill's counterpart in the House of Representatives, House Bill 101, is sponsored by Rep. Terry Landry (D-Lafayette), a former state police superintendent, with support from Rep. Steven Pylant (R-Winnsboro), a former sheriff. Both bills would replace the death penalty with a sentence of life without parole. In urging repeal, Sen. Claitor said he was "well aware of the need to create an environment that is hostile to violent crime and criminals. Yet," he said, "the death penalty has failed as deterrence to such horrendous criminal activity. Moreover, the death penalty is rarely utilized in Louisiana, and, when it is, the costs of appeals in these cases are extraordinarily burdensome to our law-abiding taxpayers.” Landry, who led the Louisiana State Police portion of the investigation that led to the murder conviction and death sentencing of Derrick Todd Lee, also expressed concerns about the cost and public safety value of the death penalty. "I've evolved to where I am today," he said. "I think it may be a process that is past its time." Louisiana's last execution was in 2010, but the Department of Corrections estimates that housing death row inmates costs $1.52 million per year, and the Louisiana Public Defender Board spends about 28% of its annual budget on capital cases, totaling about $9.5 million last fiscal year. That cost has also contributed to Louisiana's chronic underfunding of public defender services for non-capital cases across the state. The Catholic Church's opposition to the death penalty is also a factor in the heavily Catholic state. Sen. Claitor said his Catholic faith brought about a change of heart on the issue, and Sen. Fred Mills (R-Parks), said a statement of support for repeal, expected to be released by the Louisiana Catholic bishops, "would weigh heavy on me and on the vast majority of my constituents."
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Alabama Legislature Votes to End Judicial Override
The Alabama legislature has approved and sent to the Governor a bill that would bring to an end the practice of permitting trial judges to impose death sentences over a capital sentencing jury's recommendation that the defendant be sentenced to life. Alabama is the only state in the U.S. that currently permits judicial override. The legislature acted in response to mounting court challenges to Alabama's death penalty statute. On April 4, the state House of Representatives voted 78-19 to pass a bill prohibiting trial judges from overriding the sentencing recommendations of juries in death penalty cases. Governor Robert Bentley has indicated that he intends to sign the legislation. Two versions of the proposal had advanced in the state legislature. A bill sponsored by Sen. Dick Brewbaker (R-Montgomery) that would eliminate judicial override but retain Alabama's practice of allowing death sentences if ten or more jurors voted for death, passed the Senate 30-1 on February 23. A House bill by Rep. Chris England (D-Tuscaloosa) that would have abolished judicial override and required a unanimous jury vote for death had passed the House Judiciary Committee on February 16. Rep. England agreed to substitute the Senate version of the bill, which then overwhelmingly passed the House. The bill "places the death penalty back in the proper perspective," England said. "It puts it ... where in my opinion the Constitution intends it to be: in the hands of juries." Although Alabama is no longer an outlier on judicial override, it remains the only state in the country to permit a death sentence to be imposed based upon a non-unanimous jury vote. According to research by the Equal Justice Initiative (EJI), judicial override has historically been employed to impose death sentences when a jury recommended life, rather than as a safeguard against unjust jury votes for death. In 101 of the 112 cases in which Alabama judges have overriden capital jury sentencing recommendations, they have imposed the death penalty over a jury recommendation of life. The EJI study also found that the use of judicial override has been influenced by political concerns, with sentencing overrides disproportionately rising in election years. Bryan Stevenson, founder of EJI, said, "Override undermines the role of jurors, who sometimes deliberate for hours to make the right decisions in these cases on behalf of the community. Alabama has had one of the highest death-sentencing rates in the country largely because we add to death row so many people juries do not believe should be executed."
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NEW VOICES: Bipartisan Former Governors Support Death Penalty Exemption for Those With Severe Mental Illness
In a joint op-ed for The Washington Post, former governors Bob Taft (pictured, l.) and Joseph E. Kernan (pictured, r.) have expressed bipartisan support for proposed legislation that would prohibit the use of the death penalty against people who have severe mental illness. Taft, a former Republican governor of Ohio, and Kernan, a former Democratic governor of Indiana, call the execution of mentally ill defendants "an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts." They highlight recent executions of Adam Ward, who exhibited symptoms of mental illness by the age of four, and decorated Vietnam War veteran Andrew Brannan, whom the Department of Veterans Affairs classified as 100% disabled as a result of his combat-related posttraumatic stress disorder and bipolar disorder, as examples of severely mentally ill defendants who "continue to be sentenced to death and executed" in the United States. Legislators in Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia have introduced legislation in 2017 that would prohibit the death penalty for people with severe mental illness, arguing that these defendants are less culpable, more vulnerable to wrongful conviction, and often falsely perceived by jurors as more dangerous. Taft and Kernan explain that "Legislation being considered on this topic varies by state, but each bill creates a case-by-case decision-making process—conducted by either a judge or jury—to determine if a defendant has a severe mental illness. Only those with the most serious diagnoses would qualify." They urge legislatures to pass these measures, saying, "This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency."
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Florida Legislature Passes Bill Eliminating Non-Unanimous Jury Recommendations for Death Penalty
A Florida bill that would require the jury to make a unanimous recommendation for death before a judge may impose a death sentence will head to Governor Rick Scott for final approval, after both houses of the Florida legislature passed it by overwhelming margins. Senate Bill 280 passed unanimously (37-0) on March 9, and the corresponding House Bill 527 passed by a 112-3 vote on March 10. If signed by the governor, the bill will bring Florida into compliance with the Florida Supreme Court's rulings in Hurst v. State and Perry v. State in 2016. Hurst struck down Florida's prior capital sentencing statute, which had allowed judges to impose the death penalty if a majority of jurors recommended death or to override a jury's recommendation of life. Perry struck down an amended version of the statute, which had permitted judges to impose a death sentence if 10 or more jurors recommended death. The Florida Supreme Court also ruled that the unanimity requirement would apply to death-row prisoners whose direct appeals had been decided after the United States Supreme Court's June 2002 decision in Ring v. Arizona, which held that capital defendants had a right to a jury determination of all facts necessary to impose the death penalty. That decision is expected to overturn approximately 200 death sentences, while permitting a similar number of prisoners whose direct appeals had already been completed to be executed despite constitutional violations in their cases. Until recently, three states—Florida, Alabama, and Delaware—permitted judges to impose death sentences on the basis of non-unanimous jury recommendations for death. Non-unanimous cases accounted for more than 20% of all death sentences in the U.S. from 2010-2015 and disproportionately contributed to death-row exonerations. In 2016, the Delaware Supreme Court struck down its state's death penalty statute, holding that death sentences based upon non-unanimous jury recommendations for death were unconstitutional. The change to Florida's law would leave Alabama as the only remaining state in which a judge may impose a death sentence based upon a non-unanimous jury recommendation.
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Florida, Alabama Consider Legislation on Exoneree Compensation
As the Florida legislature considers a bill that would change Florida's "Clean Hands" policy, which denies compensation for wrongful convictions if the defendant had a prior felony record, Alabama lawmakers are deciding whether to grant compensation to Anthony Ray Hinton (pictured), who was exonerated in 2015 after spending nearly 30 years on death row. In Florida, death row exoneree Herman Lindsey told the Senate Criminal Justice Committee about his having been denied compensation because of prior unrelated felony convictions. He spoke about the difficulty he has faced finding housing or a job because the arrest for murder is still on his record. He said the "Clean Hands" Provision is, "basically saying, ‘we can take anybody that has a criminal record and say let’s falsely incarcerate him and when he found it wasn’t really him, we can actually put him out on the streets and we don’t actually even have to worry about it.’ I didn’t receive any apology. I didn’t receive any compensation.” The proposed bill would allow compensation for some exonerees who have prior nonviolent felony convictions. Sen. Jeff Brandes (R-St. Petersburg), a supporter of the bill, said, “If the state and the people of the state get it wrong, it shouldn’t matter what individuals have done in their past.” Lindsey said only four of Florida's 26 death-row exonerees have received compensation under the Clean Hands Act. “Now, perhaps, this might open the door for 10." Meanwhile, the Alabama Committee on Compensation for Wrongful Incarceration is considering an application to grant $1.5 million in compensation to Anthony Ray Hinton. The amount is based on the 30 years Hinton was wrongfully incarcerated. Two Assistant Attorneys General have written conflicting letters to the committee, with one stating, "I have found no information that indicates that Mr. Hinton's application is disqualified by any of the eligibility exceptions," while the other claims, "The fact that thirty years later different ballistic experts are unable to say conclusively that this gun fired the fatal shots, without the benefit of the original test fired projectiles used by the original examiners, is not evidence of innocence." Sen. Paul Bussman (R-Cullman) has introduced a bill to compensate Hinton $1.5 million, to be paid over a three-year period. He criticized the notion that a wrongly convicted person should be denied compensation when the state lacks evidence to convict, saying, "We can't convict someone in the court of public opinion. ... It has to be in a court of law."
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Former Tennessee Attorney General Supports Mental Illness Exemption
In an op-ed in the Memphis newspaper, The Commercial Appeal, former Tennessee Attorney General W.J. Michael Cody (pictured) has expressed his support for a bill that would exempt people with serious mental illness from the death penalty. Cody, who later served as a member of the American Bar Association's Tennessee Death Penalty Assessment Team, said that "as society's understanding of mental illness improves every day," it is "surprising that people with severe mental illnesses, like schizophrenia, can still be subject to the death penalty in Tennessee." In his op-ed, Cody describes how cases with seriously mentally ill defendants differ from other capital cases: "In 2007, an ABA study committee, of which I was a member, conducted a comprehensive assessment of Tennessee’s death penalty laws and found that 'mental illness can affect every stage of a capital trial' and that 'when the judge, prosecutor and jurors are misinformed about the nature of mental illness and its relevance to the defendant’s culpability, tragic consequences often follow for the defendant.'" He also draws on his experience as the state's top prosecutor, saying, "As a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ...But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole." Tennessee is one of at least seven states in which legislators have introduced bills that would exempt those with severe mental illness from the death penalty. Numerous legal and mental health organizations, including the American Bar Association, American Psychiatric Association, and National Alliance on Mental Illness, support excluding defendants with serious mental illness from the death penalty.
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