NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty
The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution.
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BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty
In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."
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Lawyer Says North Carolina Client's Brutally Traumatic Childhood Characteristic of Many on Death Row
The life of Terry Ball (pictured) "is worth remembering," says his appeal lawyer, Elizabeth Hambourger. She says Ball's life, which ended October 18 when he died of natural causes on North Carolina's death row, "hold[s] keys to understanding the origins of crime and our shared humanity with people labeled the worst of the worst." His "story of childhood trauma and brain damage" is characteristic of the backgrounds of many on death row, Hambourger says, but "was barely told at trial." Ball was convicted and sentenced to death for the cocaine-induced murder of his pastor's wife and attempted murder of his pastor in 1993, which occurred during a relapse of Ball's cocaine addition. His road to death row began when he was hit by a car at age 10, suffering injuries that kept him hospitalized for eight weeks. The head trauma changed his personality, but the severity of his brain damage was not detected at the time. He and a girlfriend ran away from home when he was 13, during which time he was abducted by a serial rapist, Jerry Wood, and repeatedly raped, kept high on drugs, and forced to steal, until he was able to escape nearly a month later. Rather than receiving mental-health services as a victim of sexual assault, Ball was adjudicated delinquent for running away and was incarcerated in a juvenile detention center, where a state psychiatrist questioned his sexual identity, writing that his month-long "association" with his rapist "raised the question of possible homosexuality." Wood, who was never prosecuted for raping and abducting Ball, was later convicted of raping two other children and sentenced to 45 years in jail. Ball then turned to drugs as self-medication for his trauma. He later enlisted in, but was swiftly discharged from, the Navy and subsequently committed several violent drug-motivated robberies and was jailed for nearly killing two people. After his release from prison, he checked himself in to three treatment centers over the course of three years, all in an unsuccessful effort to overcome his addiction to crack cocaine. Hambourger says that Ball's story is a reminder that "[t]his is who we sentence to death: the most damaged, the most abused; traumatized children who grow into adults without learning how to cope with their fear and anger." In North Carolina, death sentences have fallen from an average of 28 per year in the five years spanning 1992-1996 to an average of one per year between 2012-2016. Hambourger believes that, had Ball's trial been held today, "this mitigating evidence would have been thoroughly presented and likely would have persuaded a jury to sentence him to life without parole instead of death."
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Former Florida Death-Row Doctor: Experience of Veterans Highlights Death Penalty's Failures
A former Florida death-row doctor says the experience of U.S. military veterans who have been sentenced to death provides a lens through which the public can better understand some of the failures of the state's death penalty and identify opportunities for meaningful reform of the criminal justice system. In a Veterans Day guest column in Florida Politics, psychiatrist Dr. Joseph Thornton (pictured) writes that "18-percent of Florida’s death row is made up of veterans of our military services." Their backgrounds of "childhood trauma, drug use and more," he says, is typical of the experiences of "almost all" of the prisoners on the state's death row. In conjunction with Veterans Day 2015, DPIC released a report, Battle Scars: Military Veterans and the Death Penalty, that estimated at least 300 veterans were on state and federal death rows across the country, representing approximately ten percent of the nation’s death row population. The report highlighted the plight of veterans with Post-Traumatic Stress Disorder (PTSD), the lack of effective mental health intervention and support services, and the failures of defense counsel to investigate and present critical evidence to spare the veterans' lives. Dr. Thornton—whose more than 30-years of clinical experience includes three years overseeing medical and psychiatric care on Florida's death row—noted that two men whom Florida executed in 2017 were military veterans. Michael Lambrix, who was executed on October 5, was honorably discharged from the Army after becoming disabled in a training accident and subsequently developed a serious problem with drugs. Patrick Hannon, executed November 8, already suffered from drug abuse while in the military. "Neither," Dr. Thornton writes, "had the benefit of current intervention tactics deployed by the Veteran’s Administration to care for veterans with a history of trauma and drug abuse." Dr. Thornton advocates that Florida reallocate the money it spends on the death penalty for "more mental health treatment services, especially for military veterans, who deserve better treatment after sacrificing so much for our country." The state, he writes, should "place a moratorium on executions, and not just those of veterans, but everyone on Florida’s death row." Four veterans were executed in the United States in 2016: Georgia executed Brandon Jones and William Sallie, who had served in the Army, and Travis Hittson, who had served in the Navy; Alabama executed former Army reservist. Ronald Smith. Two men who served in the military have been exonerated in 2017: Air Force veteran Ralph Daniel Wright, Jr. was exonerated in Florida in May and Rickey Dale Newman, a mentally ill former Marine suffering from posttraumatic stress disorder who was homeless at the time he was charged with capital murder in Arkansas.
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Court Rulings Raise Questions of What Constitutes Incompetency and How is it Determined
Two recent high court rulings have raised questions of whether death-row prisoners are sufficiently mentally impaired to be deemed incompetent to be executed and who gets to make that determination. On November 7, the Arkansas Supreme Court issued an order staying the execution of death-row prisoner Jack Greene (pictured, left) to resolve whether that state's mechanism to determine competency—giving the director of the Arkansas Department of Correction ("ADC") sole discretion to make the decision—violates due process. One day earlier, a unanimous United States Supreme Court permitted the execution of Alabama death-row prisoner, Vernon Madison (pictured, right), to go forward—despite evidence that strokes have left him legally blind, incontinent, unable to walk independently, and with no memory of the offense for which he was sentenced to death—saying that the Alabama Supreme Court's ruling that Madison had a rational understanding of his execution was not contrary to or an unreasonable application of clearly established federal constitutional law. Greene's lawyers had argued to the Arkansas Supreme Court that Arkansas had violated his right to due process when corrections director Wendy Kelley ruled him competent to be executed without having conducted any independent mental health evaluation or providing Greene's lawyers any opportunity to contest her determination. According to court filings, Greene is severely mentally ill and psychotic, delusionally believes that the ADC has destroyed his central nervous system, engages in "extreme physical contortions and self-mutilations" to attempt to combat the pain, and thinks the state and his lawyers are colluding to execute him to prevent disclosure of the injuries he believes have been inflicted by the state. In his Last Will and Testament, signed on November 1, he asked that his head be surgically removed after the execution and examined by a television reality show doctor in an effort to prove that he has been subjected to "percussion concussion brain injuries . . . inflicted by the Arkansas Department of Corrections since July 5, 2004." His lawyers have been seeking a court hearing on Greene's mental status to determine his competency. In ther Alabama case, the Supreme Court reversed a decision of the U.S. Court of Appeals for the 11th Circuit that had found Madison incompetent to be executed. The federal appeals court had rejected the state court's finding that Madison was aware of the reasons for his impending execution, saying that because of his stroke-induced "memory loss, difficulty communicating, and profound disorientation and confusion," he lacked an understanding of the "connection between his crime and his execution." The Supreme Court reversed the lower court's decision, holding that there was no clearly established law concerning when "a prisoner is incompetent to be executed because of a failure to remember his commission of the crime," as "distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case." Prosecutors in Arkansas said that they will not seek rehearing of the decision in Greene's case, and state attorneys in Alabama have not yet asked for an execution date for Madison.
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Former Arkansas Death-Row Prisoner Rickey Dale Newman Exonerated After Nearly 17 Years in Prison
An Arkansas trial judge has dismissed all charges against former death-row prisoner, Rickey Dale Newman (pictured), setting him free on October 11 after having spent nearly 17 years in custody following the February 2001 murder of a transient woman in a "hobo park" on the outskirts of Van Buren, Arkansas. Newman became the 160th person since 1973 to be exonerated after having having been wrongly convicted and sentenced to death. Newman, a former Marine with major depression, chronic posttraumatic stress disorder from childhood abuse, and an IQ in the intellectually disabled range, was seriously mentally ill and homeless at the time he was charged with murdering Marie Cholette. He was convicted and sentenced to death in June 2002 after a one-day trial in which the court permitted him to represent himself. No physical evidence linked Newman to the murder, but at trial a prosecution expert falsely testified that hair found on Newman's clothing came from the victim. Newman also told the jury he had committed the murder and asked them to impose the death penalty. He subsequently sought to waive his appeals and be executed. The Arkansas Supreme Court initially held that Newman had been mentally competent and granted his request to drop his appeals. However, four days before his scheduled execution on July 26, 2005, Newman permitted federal public defenders, including his current counsel, Julie Brain, to seek a stay of execution. DNA evidence on the blanket on which the victim was found excluded Newman, and the federal defenders obtained DNA testing of the hair evidence that disproved the prosecution's trial testimony. They also discovered that prosecutors had withheld from the defense evidence from the murder scene that contradicted what Newman had described in his confession. A federal court hearing disclosed that the state mental health doctor had made significant errors in administering and scoring tests he had relied upon for his testimony that Newman had been competent to stand trial. The Arkansas Supreme Court subsequently ordered new hearings on Newman's competency and on the evidence the prosecution had withheld from the defense. After those hearings, it wrote that "the record overwhelmingly illustrates that Newman’s cognitive deficits and mental illnesses interfered with his ability to effectively and rationally assist counsel" and overturned Newman's conviction. In September, it issued another ruling barring the use of Newman's incompetent confessions in any retrial. On October 2, Brain submitted a letter to the court saying that “Mr. Newman has now been incarcerated for over 16 years for a murder that he did not commit” and that the Arkansas Supreme Court had found that the invalid statements he had given while mentally incompetent were "the only meaningful evidence against him." In response, special prosecutor Ron Fields submitted letter to the court asking that charges be dismissed. Fields wrote that, without the confessions, prosecutors lacked sufficient evidence to obtain a conviction and "it would be a waste of tax payers money to retry [Newman]."
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Prosecutors Accept Life Plea by Severely Mentally Ill Man in Killing of Texas Sheriff's Deputy
Texas prosecutors have dropped their pursuit of the death penalty against a severely mentally ill capital defendant charged with what they characterized as the "ambush murder" of a Harris County sheriff’s deputy. Special prosecutor Brett Ligon (pictured, left)—the Montgomery County District Attorney who was handling the prosecution because Houston prosecutors had a conflict that prevented them from participating in the case—announced on September 13 that he had agreed to a plea deal in which Shannon Miles (pictured, right) would be sentenced to life without possibility of parole in the killing of Sheriff’s Deputy Darren Goforth. Miles’s lawyers say that he has schizophrenia and episodic psychosis when he is not on psychiatric medication, that he has no memory of the murder, and that they intended to pursue an insanity defense in the case. In 2012, the trial court had declared Miles incompetent to be tried. In March of 2017, after treatment at a state mental hospital that had been delayed by a shortage of available beds, the court found Miles competent to stand trial. In explaining the plea deal, Ligon said "[t]he state's experts all came to the same conclusion, the likelihood of executing a mentally incompetent man was almost zero." The victim’s widow, Kathleen Goforth, said she supported to deal because her two children “have been spared” the ordeal of extended death-penalty proceedings. She said, “They will not have the backdrop of their lives, for the next 10 to 25 years, being court dates, trials and appeals…. They won't have that inflicted upon them and that is merciful. It's compassionate and it's the right thing to do." Harris County Sheriff Ed Gonzalez and Donald Cuevas, president of the Harris County Deputies Organization, said justice had been served by the plea deal. The plea had been entered against the backdrop of an emerging sex scandal. The sole grounds on which prosecutors could seek the death penalty in the case was if Officer Goforth had been killed in the performance of his duties. However, evidence had come to light that Goforth was at the gas station to meet his mistress, who was a witness to the murder and would be called upon to testify in the case. Two sheriff’s officers—one who was assigned to investigate the case—had been fired for having sexual relations with the woman, and a third had been fired for sending her an email soliciting sex. The Goforth murder once again focused attention on the role of mental illness in premeditated murders of police officers. In July 2016, in unrelated incidents, mentally ill Gulf War veterans who exhibited symptoms of Posttraumatic Stress Disorder fatally shot five police officers in Dallas, Texas and three in Baton Rouge, Louisiana. In July 2015, a Washington jury sentenced a mentally ill and delusional capital defendant, Christopher Monfort, to life without parole for the ambush murder of a Seattle police officer.
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REPORT: Most of the 26 Prisoners Facing Execution in Ohio Through 2020 Severely Abused, Impaired, or Mentally Ill
Almost all of the 26 men scheduled for execution in Ohio over the next three years suffer from mental, emotional, or cognitive impairments or limitations that raise questions as to whether they should have been sentenced to death, according to a new report released August 30 by Harvard's Fair Punishment Project. While the U.S. Constitution requires that the death penalty be reserved for the worst crimes and the worst offenders, the report—Prisoners on Ohio's Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age—says that, instead, these prisoners "are among the most impaired and traumatized among us." The report says Ronald Phillips, whom Ohio executed July 26, was "19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse – information his trial lawyers never learned or presented to a jury." It says at least 17 of the 26 other condemned prisoners Ohio seeks to execute between September 2017 and September 2020 experienced serious childhood trauma, including "physical abuse, sexual abuse, neglect, and exposure to serious violence"; at least 11 have evidence of "intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury"; and at least 6 "appear to suffer from a mental illness." Jessica Brand, the Project's Legal Director, describes what has happened in these cases as a "horrible trifecta" in which "people who are the most impaired received some poor representation at some time in their cases and then are facing the most severe penalty possible." The Ohio Alliance for a Mental Illness Exemption from the death penalty, which is supporting an Ohio bill seeking to ban the use of capital punishment against the severely mentally ill, issued a press statement in which they noted that two of the prisoners are so mentally ill that they should be categorically exempted from the death penalty. A Death Penalty Information Center review of Ohio’s 2017-2020 scheduled executions shows that more than 60% of the execution warrants are directed at prisoners who were sentenced to death before Ohio had adopted its life-without-parole sentencing option and jurors had to weigh the death penalty against the risk that a prisoner would be released back into society. Mirroring trends repeated across the country, death sentences fell dramatically in Ohio when the state amended its death-penalty law to make life without parole available as a sentencing alternative. Death sentences dropped by 2/3rds in the state over the next decade, from an average of 12.7 per year to 4.3. The data suggests that juries would likely have treated evidence of intellectual disability, mental illness, or behavioral problems arising from chronic abuse and trauma very differently if they had assurances that the defendants would not later be released if sentenced to life.
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Arkansas, Nevada Obtain New Supplies of Drugs, Plan to Carry Out Two Questionable Executions
The states of Arkansas and Nevada have announced that they have obtained new supplies of execution drugs that will permit them to carry out two executions in what critics have called questionable circumstances. On August 4, Arkansas obtained a supply of midazolam—the controversial drug used in botched executions in at least four states—paying $250 in cash to an undisclosed supplier for 40 vials of the drug. Then, on August 17, Attorney General Leslie Rutledge asked Governor Asa Hutchinson to set an execution date for Jack Greene (pictured), described by his lawyers as “a severely mentally ill man [with] well-documented brain damage.” Also on August 17, Nevada—which does not currently have an execution protocol in place—announced that it had obtained drugs to execute Scott Dozier, using a three-drug formula that no state has ever tried before. Dozier—who has waived his appeal rights and volunteered to be executed—is scheduled to die on November 14. In a press statement, Greene’s lawyer, John C. Williams, said “[c]apital punishment should not be used on vulnerable people like the severely mentally ill.” Greene, he said, is mentally incompetent and suffers from delusions that “his spinal cord has been removed and his central nervous system has been destroyed.” Responding to this delusion, Williams said, Greene “constantly twist[s] his body and stuff[s] his ear and nose with toilet paper to cope with the pain,” often causing himself to bleed. A spokesperson for Hutchinson—who authorized Arkansas’s unprecedented attempt to execute eight prisoners over an eleven-day span in April—has indicated that the governor will set an execution date for Greene. To execute Dozier, Nevada has indicated that it will use an untried combination of diazepam (Valium), fentanyl (an opiod), and cisatracurium (a paralytic). The state has not yet announced how the drugs will be administered. All but one of the prisoners executed in Nevada since 1977 were found to have waived their appeals; Dozier would be the state's 12th death-row prisoner to volunteer to be executed. Nevada recently spent nearly $900,000 on building a new execution chamber.
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Severely Delusional Georgia Man Found Incompetent to Face Death-Penalty Trial
A Cobb County, Georgia trial court has declared a severely mentally ill capital defendant incompetent to stand trial and committed him to a state mental hospital, effectively ending prosecutors' seven-year efforts to obtain the death penalty in his case. Jesse James Warren (pictured) was facing trial and a possible death sentence for killing four men and wounding another in 2010 at a Penske Truck Rental store where he had previously worked. The shooting spree was allegedly motivated by Warren's delusional belief that the military had paid him $500 million for inventing WiFi and that Penske had stolen some of that money from him. The ruling by Judge Mary Staley Clark followed testimony from two state psychiatrists on August 1. Both agreed that Warren suffers from a debilitating delusional disorder and refuses to take medication, making him a danger to himself and anyone who challenges his delusions outside of a hospital setting. Warren, a mechanic by training, was first diagnosed as delusional in 2009 when Penske—his former-employer—sent him to a psychiatrist. Among his other delusions, Warren reportedly claimed that he is an emperor, that he was the son of God, and that churches and religions were trying to kill him. Prosecutors sought the death penalty against Warren despite his documented history of mental illness, but lost a legal challenge in the Georgia Supreme Court in 2015 to have Warren forcibly medicated with anti-psychotic drugs to try to make him fit to stand trial. Warren's delusions render him unable to rationally understand the charges against him and assist counsel in his defense. Prosecutors now agree that he is unlikely to become competent to stand trial, even with medication. Georgia has executed fifteen prisoners in the past three years, many under controversial circumstances. A DPIC analysis of those executions showed that eight of the fifteen struggled with a combination of mental illness, intellectual disability, and/or other serious mental or emotional disturbances. In 2015, Georgia executed Andrew Brannan, a decorated Vietnam veteran with a diagnosis of Post-traumatic Stress Disorder and a 100% mental disability recognized by the Veterans Administration. In 2016, it executed Kenneth Fults, despite evidence that he was intellectually disabled and functioned at the level of the lowest 1% of the population. At the same time, Georgia juries have been moving away from the death penalty, having not imposed any new death sentences since 2014.
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