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73% of North Carolina's Death Row Sentenced Under Obsolete Laws, New Report Says

Most of the 142 prisoners on North Carolina’s death row were convicted under obsolete and outdated death-penalty laws and would not have been sentenced to death if tried today, according to a new report by the Center for Death Penalty Litigation. The report by the Durham-based defense organization, titled Unequal Justice: How Obsolete Laws and Unfair Trials Created North Carolina’s Outsized Death Row, says that nearly three-quarters of the prisoners on the nation’s sixth-largest death row were tried and sentenced before the state enacted significant reforms in prosecution, defense, and trial practices. “[I]f these people on death row had been tried under modern laws, most of them would be serving life without parole sentences instead of facing execution,” said Gretchen Engel, the Center’s executive director.

Seventy-three percent of the men and women on North Carolina’s death row (103 prisoners) were tried and sentenced to death before July 2001, when North Carolina repealed a 1990s-era law that had required prosecutors to pursue the death penalty in every aggravated murder case, irrespective of reasons that might call for mercy, and created a statewide office to represent indigent defendants in capital trials and appeals. North Carolina was the only state in the country that denied prosecutors the discretion to decide when to seek the death penalty, and as a result, there were more than fifty capital trials in the state each year, including cases involving defendants who were seriously mentally ill or intellectually disabled or were comparatively minor participants in a murder. Capital trials fell to an average of sixteen per year in the decade following the change. The creation of the capital defender office that same year dramatically improved the quality of representation, and further reduced the number of cases in which death verdicts were returned. Since then, North Carolina has enacted additional reforms aimed at ensuring fairer trials in capital cases. In October 2004, the state became the first in the country to require prosecutors to make all witness files, police reports, other investigative records, and physical evidence available to capital defendants prior to trial. In 2008, it adopted a series of eyewitness identification and interrogation protocols designed to prevent mistaken identifications and false or coerced confessions.

The report states that during the 1990s, before the reforms were enacted, “courtrooms were dominated by prosecutors like Ken Honeycutt in Stanly County, who celebrated new death sentences by handing out noose lapel pins to his assistant prosecutors.” “Today,” Engel said, “we are living in a different world .... Public support for the death penalty is at a 50-year low, and North Carolina has stopped executing people. Juries now see life without parole as a harsh and adequate punishment for the worst crimes.” That, however, has produced its own historical inequities. In terms of moral culpability, Engel said, the defendants facing trial in 1995 and 2015 “are equal. And yet, one of them is being subjected to execution and other is not and that is an unfairness that as a fair society, we can not tolerate.”


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Law Review: Junk Mental Health Science and the Texas Death Penalty

Junk science is “enabling and perpetuating grave miscarriages of justice” in Texas death-penalty cases. So concludes Professor James Acker in his article, Snake Oil With A Bite: The Lethal Veneer of Science and Texas’s Death Penalty, published in the latest issue of the Albany Law Review. Acker’s article highlights the heightened risks of injustice from pseudo-science and junk science in capital cases in Texas, one of the few states that conditions death eligibility upon a finding of the defendant’s future dangerousness. Acker writes that, “at virtually every ... stage of the state’s capital punishment process,” Texas prosecutors “have alternately enlisted expert witnesses and scientists who have helped move accused and convicted offenders progressively closer to the execution chamber, and ignored or discounted scientific norms and developments inconsistent with securing and carrying out capital sentences. All too often, the determinations made in support of death sentences are of dubious reliability—including opinions and conclusions based on what many would agree to qualify as junk science—thus greatly enhancing the risk of miscarriages of justice ....”

Acker’s article discusses Texas’s long history of abusing expert testimony in support of execution, starting with the case of Estelle v. Smith, in which Dr. James Grigson — later nicknamed “Dr. Death” — evaluated Ernest Smith for his competency to stand trial, did not notify counsel of the evaluation, failed to advise Smith of his right to remain silent, and then testified in the penalty phase “that Smith was a severe sociopath, that his condition could not be treated, and that he ‘is going to go ahead and commit other similar or same criminal acts if given the opportunity to do so.’” The U.S. Supreme Court overturned Smith’s death sentence in 1981 for violations of his right to counsel and his constitutional privilege against compelled self-incrimination. Two years later, in Barefoot v. Estelle, the Court permitted the use of psychiatric predictions of future dangerousness, despite warnings by the American Psychiatric Association that such testimony was speculative and highly unreliable. Grigson went on to testify in 167 capital cases, repeatedly responding to hypothetical questions posed by prosecutors (even after he was expelled from state and national professional associations because of this practice) that defendants whose institutional records he had never reviewed and whom he had never evaluated were certain to commit future acts of violence. Texas has also misused expert mental health testimony in capital cases to falsely argue that capital defendants posed an increased threat to society because of their race or ethnicity, Acker writes. He describes the testimony of Dr. Walter Quijano, a clinical psychologist who testified in seven cases that defendants were more likely to pose a danger to society because they were black or Latino. The Texas Attorney General’s office ultimately conceded error in all but one of those cases. Duane Buck’s case, however, reached the Supreme Court, where Chief Justice Robert condemned Quijano’s testimony as “powerful racial stereotyping.”

The Texas courts also systemically disregarded scientific standards or otherwise abused expert mental health testimony in determinations of intellectual disability and competency to be executed, Acker says. In the case of Moore v. Texas, the Supreme Court declared Texas’s approach to intellectual disability to be unconstitutional and ordered a reconsideration of Bobby Moore’s intellectual disability claim. With the prosecution, the defense, and multiple mental health groups all agreeing that Moore is intellectually disabled, the Texas Court of Criminal Appeals nevertheless upheld his death sentence. Finally, Acker writes, the state’s approach to competency has been an outlier, deeming Scott Panetti — who had been “hospitalized more than a dozen times [for mental illness and] been diagnosed as suffering from schizophrenia, bipolar disorder, auditory hallucinations, and delusions of persecution and grandeur” — competent to stand trial, to represent himself, and to be executed. Texas “has alternatively coopted, disregarded, and subverted science and prevailing disciplinary norms of the mental health professions,” Acker concludes. “The death penalty in Texas, imbued with powerful symbolism and political significance, has succeeded not only in condemning offenders, but also the principled teachings of science. ... Science and politics are a deadly mixture, in the nature of snake oil with a bite.”


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DEATH-ROW CENSUS: Number of Prisoners Facing Active Death Sentences in U.S. Drops Below 2,500

For the first time in more than a quarter century, fewer than 2,500 prisoners across the United States now face active death sentences. According to the latest Death Row USA national census by the NAACP Legal Defense Fund (LDF), released in early September 2018, 2,743 people were on death rows in 32 states and the U.S. federal and military death rows on April 1, 2018. That total includes 249 people who were previously sentenced to death but face the possibility of a capital resentencing after a new trial or new sentencing hearing and prisoners whose capital convictions or death sentences have been reversed, but whose reversals are still subject to appeal by the state. 2,494 other prisoners face active death sentences. The Spring 2018 death-row census reflects that death row has declined by 100 from the 2,843 reported on death row as of April 1, 2017, and by 17% over the course of the last decade. The overall decline in the number of people on death rows across the country is greater than the number of executions in that period, meaning that more former death-row prisoners have been resentenced to life or less after overturning their death sentences, died from non-execution causes, or been exonerated than have been added to the row with new death sentences. California (740), Florida (354), and Texas (235) remain the nation’s largest death rows. Of the jurisdictions with at least 10 people on death row, those with the highest percentage of racial minorities are Texas, Louisiana, and Nebraska, each at 73%. The last time LDF recorded fewer than 2,500 prisoners facing active death sentences in the United States was in January 1993, when the Winter 1992 Death Row USA reported that 2,483 of the 2,676 men and women then on death row had active death sentences. 


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Death Off the Table for Four Former Death-Row Prisoners, as Death Row Continues to Shrink Nationwide

In a period of less than one week, four former death-row prisoners in four separate states learned that they no longer face execution, contributing to the continuing decline in the number of people on death rows across the U.S. The result of the unrelated court proceedings—a resentencing hearing in Pennsylvania, a non-capital grand jury indictment in Louisiana, a prosecutor’s decision to drop death in Indiana, and a court ruling on intellectual disability in Alabama—illustrate the ongoing erosion of the death-row population in America, which has fallen in size in each of the past 17 years. On September 10, 2018, Daniel Saranchak (pictured, left) was resentenced to life without parole in Schuylkill County, Pennsylvania, following the reversal of his death sentence by a federal court in October 2015. That court said Saranchak had been provided ineffective representation in the penalty phase of his original trial in 1994 and granted him a new sentencing hearing. In November 2000, Saranchak came within 45 minutes of being executed before receiving a stay. Three days after Saranchak’s resentencing, a Jefferson Parish, Louisiana grand jury returned a non-capital indictment against Teddy Chester (pictured, middle left), who had been sentenced to death in 1997. Chester was granted a new trial on June 11, 2018 based on evidence of his counsel’s failure to challenge the prosecution case against him and DNA evidence that had not been presented to Chester’s trial jury suggesting that he is not the killer. Chester and his co-defendant, Elbert Ratcliff, each claim that the other shot cab driver John Adams in order to rob him. The grand jury indicted Chester for second-degree murder, which carries an automatic life sentence if convicted. Ratcliff was previously convicted of second-degree murder. On September 14, a St. Joseph County, Indiana trial judge approved the prosecution’s motion to remove the death penalty as a possible punishment against Wayne Kubsch (pictured, middle right). Kubsch will face a maximum sentence of life without parole at his third trial in a 1998 triple homicide. Kubsch maintains his innocence, and his second conviction was overturned because “critical evidence” was withheld. The victims’ families supported the prosecution’s decision to seek a life sentence. “I believe this is the right decision,” said Diane Mauk, mother of victim Beth Kubsch. “I feel that in the state of Indiana it would be another 15 years or more before an execution would take place, if it ever happened. ... It’s time to get justice for our families.” And also on September 14, the Alabama Supreme Court found death-row prisoner Anthony Lane (pictured, right) ineligible for the death penalty because of intellectual disability, vacated his death sentence, and directed the trial court in Jefferson County to resentence Lane to life without parole. The Alabama state courts had previously rejected Lane's claim of intellectual disability, but had applied an unconstitutional and scientifically unsupported definition of intellectual disability in reaching that conclusion. The U.S. Supreme Court reversed that ruling in 2015 and returned the case to the state courts to decide the issue using an appropriate standard.

A Bureau of Justice Statistics brief on May 20, 2017 and DPIC's year end reports in 2016 and 2017 have shown that removals from death row—mostly in the form of resentencings—have outstripped new death sentences every year since 2001.


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Nebraska Supreme Court Hears Challenge to Three-Judge Death Sentencing

The Nebraska Supreme Court heard oral argument on August 30, 2018 in a case challenging the constitutionality of the state's capital sentencing procedure, which requires a three-judge panel to decide whether to impose a death sentence. Attorneys for death-row prisoner John Lotter said the state's three-judge sentencing violates the Sixth and Fourteenth Amendments as applied to Florida's capital sentencing law in Hurst v. Florida. In that case, the U.S. Supreme Court found that the Sixth Amendment required “a jury, not a judge, to find each fact necessary to impose a sentence of death.” “Nebraska is the only active death penalty state without a sentencing structure that allows a jury to make the central findings of fact to impose a death sentence,” said Rebecca Woodman, an attorney representing Lotter. Under Nebraska law, a jury determines whether aggravating factors are present, deciding if a defendant is eligible for the death penalty, but judges weigh those factors against mitigating factors and decide whether the defendant receives a death sentence or a sentence of life in prison. James Smith, solicitor general for Nebraska Attorney General's Office, argued that the sentencing scheme is constitutional, saying, “Finding aggravating factors is the fact that’s significant, the fact that juries must decide. The aggravating factors are what makes the defendant death-eligible.” Woodman disagreed: “Nebraska’s statutory scheme is unconstitutional because it bases a death sentence not on a jury’s verdict, but on judge-only findings of critical facts necessary to impose a sentence of death.” She also argued that the ruling should be applied retroactively, granting new sentencing hearings to everyone on Nebraska's death row. 


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New Neuroscience Research Suggests Age Limit for Death-Penalty Eligibility May be Too Low

When the U.S. Supreme Court banned the death penalty for juvenile offenders in 2005 in Roper v. Simmons, Justice Anthony Kennedy's opinion for the Court acknowledged the inherent arbitrariness in selecting an age cutoff. "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18," he wrote. "However, a line must be drawn." New neuroscience research suggests that the age-18 line may be too low. The court's opinion in Roper found that a national consensus had developed against subjecting juveniles to the death penalty based upon behavioral evidence that juveniles are less able to understand the consequences of their actions, more susceptible to peer pressure, and less able to control their impulses. One word missing from the Roper court's analysis of the age-18 death-penalty cutoff: "brain." An August 12, 2018 article for The Marshall Project by Beth Schwartzapfel explores the judicial system's response to new neurological research on brain development and whether 18 is the most appropriate age of eligibility for the harshest sentences, including the death penalty and mandatory life without parole. Brain research now clearly demonstrates that those portions of the brain that regulate impulse control and decision-making do not fully mature until well into a person's 20s, and defense lawyers have begun to argue that the same limitations on extreme punishments applicable to juveniles should apply to youthful offenders in “late adolescence,” between the ages of 18 and 21. Brain research by Temple University psychology professor Laurence Steinberg (pictured), a national expert in adolescent brain development, found that impulsive thrill-seeking and the need for immediate gratification peaks in late adolescence around age 19, before declining through an individual's 20s. In a 2017 case in which a Kentucky trial judge declared the death penalty unconstitutional for defendants charged with committing a crime before age 21, Steinberg testified, "Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper." Judge Ernesto Scorsone agreed, writing, "If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling." On February 5, the American Bar Association House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." In September 2017, the U.S. Supreme Court declined to review Ohio death-row prisoner Gary Otte's claim that the death sentence was unconstitutionally imposed in his case because he was only 20 years old at the time of the offense. Otte was executed September 13, 2017.


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Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.


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Florida Juries Reject Death Sentences for Four Men, Highlighting Impact of Unanimity Requirement

Juries in two Broward County, Florida death-penalty trials have handed down life sentences for four capital defendants in the span of one week, highlighting the effect of a new Florida law requiring the unanimous agreement of the jury before a defendant can be sentenced to death. On July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff's deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter. The verdicts marked the third time in four capital trials since Florida adopted the jury unanimity requirement that Broward juries have opted for life sentences. The sole exception was the case of Peter Avsenew, who represented himself in the penalty-phase after firing his lawyers, presented no penalty-phase defense, and told the jury he had "no regrets" for his actions and was "proud of the decisions [he'd] made." South Florida juries in Palm Beach County also have recommended life sentences in the three first-degree murder trials conducted there since September 2017. In March 2017, the Florida legislature changed its death penalty law in response to two Florida Supreme Court decisions in October 2016 that declared the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendations for death to be unconstitutional. Those decisions were based on the U.S. Supreme Court's January 2016 decision in Hurst v. Florida, which ruled that Florida's previous death-penalty statute violated the Sixth Amendment right to a jury trial by giving judges, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. Florida's criminal law required unanimity for every other decision made by a jury, and the 2017 amendment brought Florida's law into line with the laws of virtually every other death-penalty state. Only Alabama still permits a trial judge to impose the death penalty based upon a jury's non-unanimous sentencing recommendation. 


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Colorado Jury Returns Life Sentence in Third Consecutive High-Profile Death-Penalty Case

Colorado Springs jury rejected a death sentence for Glen Law Galloway (pictured), marking the third high-profile case since 2015 in which Colorado jurors have selected a life sentence over death. The verdict brought to an end El Paso County’s first capital prosecution in more than a decade, after a six-week trial in a courtroom with a $50,000 makeover that included new audio and video technology and a remodeled jury box enlarged to accommodate six alternate jurors. 2,800 potential jurors had received summonses to appear for service in the case. Prosecutors unsuccessfully attempted to portray Galloway as an unrepentent and remorseless killer who, in the words of El Paso District Attorney Dan May, had committed “two horrific homicides.” They claimed that Galloway had killed a homeless man, Marcus Anderson, to steal his truck and silence him as a witness, and then drove it to the house of his ex-girlfriend, Janice Nam, where he killed her to exact revenge for a stalking conviction. The jurors found Galloway guilty of premeditated murder in Nam's killing, but determined that Anderson’s murder had not been premeditated and acquitted Galloway of aggravated robbery, rejecting the prosecution’s contention that he had killed Anderson to steal his truck. The same defense team that represented Aurora movie-theater shooter James Holmes presented more than thirty witnesses in four days of testimony about Galloway’s character and background, describing to the jury how the former Army veteran “snapped” following the detoriation of his relationship with Nam. Defense attorneys presented mitigating evidence on Galloway's harsh upbringing and his life in the Army, followed by a career in microchip manufacturing. Denver public defender Daniel King, one of Galloway's attorneys, said Galloway was an otherwise law-abiding person who tragically lost control. “Mr. Galloway is not just the worst thing that he’s done,” King said. “He’s committed many acts of kindness, friendship, service, love and duty.” After five hours of deliberation, the jury found that the mitigating evidence in the case outweighed aggravating evidence and sentenced Galloway to life. Colorado juries had previously rejected death sentences for Holmes, who killed twelve people in a mass shooting, and Dexter Lewis, who fatally stabbed five people in a Denver bar. “Once again, a jury has told the government that seeking the death penalty is a waste of everyone’s time,” said Phil Cherner, a retired attorney and chairman of the board for Coloradans for Alternatives to the Death Penalty. Colorado has not imposed a death sentence since 2010, and has not executed a prisoner since 1997. Governor John Hickenlooper declared a moratorium on executions in 2013.


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Life Plea in Police Killing Highlights Turbulence Over Philadelphia Death-Penalty Reform

Two men charged with killing Philadelphia Police Sgt. Robert Wilson III have been sentenced to life without possibility of parole, plus an additional term of 50 to 100 years, as prosecutors in one of the nation’s largest death-penalty counties agreed not to seek the death penalty in exchange for the defendants’ guilty pleas. Philadelphia District Attorney Larry Krasner (pictured) appeared in court on June 25 to personally explain the rationale behind the plea deal that ensures brothers Carlton Hipps and Ramone Williams will spend the rest of their lives in jail. Krasner told the court that the mothers of Sgt. Wilson’s two young children “do not want the death penalty” and that the plea deal would “minimize the re-traumatization” that would occur if they were exposed to a capital trial and lengthy appeals. Krasner said “[t]he death penalty in Pennsylvania is not what people think it is. The reality is people are not executed in Pennsylvania. They die in custody on death row.” The plea deal drew highly publicized criticism from the Philadelphia Fraternal Order of Police and other members of Wilson's family who wanted the death penalty to be pursued. It also provoked opposition from activists who said that Krasner’s use of the death penalty as leverage for the guilty pleas violated his campaign promise never to seek death sentences. The Philadelphia lodge of the FOP—who, along with former prosecutors who were fired from or left the DA’s office, have engaged in a prolonged public relations war against Krasner’s proposals for criminal-justice reform—called the plea deal “despicable.” On social media, it urged its members to attend the sentencing to “show support” for the Wilson family. Krasner said that the mothers of Wilson’s children had received threatening messages, which they believed were from the FOP, pressuring them to ask Krasner to seek the death penalty. Only family members who opposed the deal came to the court hearing. Krasner’s decision not to seek the death penalty comes in the wake of a twenty-year decline in Philadelphia’s use of capital punishment. The city imposed 99 death sentences in the 1990s, 21 in the first decade this century, and fewer than one every other year in the 2010s. Nearly 150 death sentences imposed in the city since the 1970s have been overturned, and there has been only a single execution. After highlighting the high cost of capital punishment, Krasner said, “A choice to waste money may be a choice to endanger police officers. And frankly, if you really want to get down to it, when did the death penalty prevent this outcome? The death penalty has not stopped it here. The death penalty has not stopped it in the past. And, every bit of scientific evidence indicates that it’s not going to stop it in the future.” A Death Penalty Information Center analysis of FBI murder data has shown that over the last three decades, police officers have been killed at a rate that is 1.37 times higher in states that currently have the death penalty than in states that have long abolished it.


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