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After Mid-Term Elections, Legislators Poised to Renew Efforts at Death-Penalty Abolition in 2019

Empowered by the results of the November 2018 mid-term elections, legislatures in at least four states are poised to renew efforts to repeal their states’ death-penalty statutes or drastically reduce the circumstances in which capital punishment is available.  State legislative and gubernatorial elections in Colorado, Nevada, New Hampshire, and Oregon have redefined the local political landscape in 2019 in ways that death-penalty abolitionists say have made those bills more likely to succeed. Colorado and Oregon already have moratoria on the death penalty, but legislators in both states are expected to move forward with bills abolishing or further restricting its use. In New Hampshire, where legislators voted to repeal the death penalty in 2018 but were unable to override a gubernatorial veto, the newly-elected legislature may now have the two-thirds supermajority necessary to override. And in Nevada, where a state court found that corrections officials had engaged in “subterfuge” in attempts to obtain execution drugs, voters elected a governor who has expressed concerns about capital punishment, and legislators say they will propose an abolition bill.

In Colorado, Gov. John Hickenlooper, who imposed a moratorium on executions in May 2013, was barred by term limits from seeking reelection. Voters elected Democrat Jared Polis (pictured, left), who said during the gubernatorial campaign that he would sign a bill to abolish or phase out the state’s death penalty, and Democrats gained control of both houses of the state legislature. Fort Collins State Rep. Jeni Arndt, who plans to sponsor the repeal bill, said she is seeking bipartisan support for the measure, noting that “If [prosecutors] can’t get the death penalty for the Aurora theater shooter, then this is a waste of taxpayer time and money.” Outgoing senate minority leader Lucia Guzman, a past sponsor of repeal legislation, said “I have worked on this issue for several years but wasn’t able to get it passed. But I think this year is going to be the year.”

Mid-term changes to the composition of the New Hampshire legislature have increased the likelihood that the Granite State will repeal its death penalty in 2019, despite another promised veto by Gov. Chris Sununu. State Rep. Renny Cushing (pictured, right), whose repeal bill received bipartisan legislative support in 2018, is reintroducing the measure in 2019. Voters elected a veto-proof majority of sixteen abolitionist senators in November. In the state house, where the repeal bill received just under the two-thirds supermajority necessary to overcome a veto in 2018, backers of abolition are optimistic they will have even more support in 2019.

In Oregon, voters reelected Gov. Kate Brown, who pledged to extend the state’s moratorium on executions, and elected Democratic supermajorities in both houses of the state legislature. With the state constitution requiring a voter referendum to abolish the death penalty, legislators are instead seeking bipartisan support for a plan to limit capital punishment only to acts of terrorism. In Nevada, Governor-elect Steve Sisolak, who defeated state attorney general and death-penalty proponent Adam Laxalt, has indicated he is willing to sign a bill to abolish the death penalty. Assemblyman Ozzie Fumo, who favors repeal, said he expects the legislature to consider an abolition bill or to request that the governor impose a moratorium on executions. “There’s a social change coming,” Fumo said. “Overwhelmingly, we’re going to see people think about it, and say this is wrong.”


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Report on “Principles for the 21st Century Prosecutor” Calls for Prosecutors to Work to End Death Penalty

A group of justice-reform organizations has issued a new report, 21 Principles for the 21st Century Prosecutor, that calls on prosecutors to “work to end the death penalty” as part of its recommended reforms in prosecutorial practices. The report, prepared jointly by the organizations Fair and Just Prosecutionthe Brennan Center for Justice, and the Justice Collaborative, sets forth a series of principles that the groups say are designed “to improve the overall fairness and efficacy of the criminal justice system.”  The report sets forth 21 principles of prosecution for a “21st Century vision for meting out mercy and justice.” Ten of the principles address ways to reduce incarceration. Eleven are proposals to increase fairness in the criminal justice system. Because prosecutors “wield enormous influence at every stage of the criminal process, from initial charging decisions to the sentences sought and imposed,” the report says, they are “well positioned to make changes that can roll back over-incarceration.”

The groups’ proposals on the death penalty fall within their recommendations on increasing fairness. “Countless studies have shown that the death penalty is fraught with error, provides no more public safety benefit than other sentences, and is routinely imposed on people with diminished culpability,” the report says. “Studies also show that the death penalty is applied in a racially discriminatory manner[,] … is expensive and puts victims through decades of litigation and uncertainty.” The report recommends that prosecutors “[o]ppose legislation to expand or expedite the death penalty”; establish a review committee to determine whether to prosecute a case capitally; consider alternative punishments in cases in which the death penalty has already been imposed, “particularly when there is substantial evidence of reduced culpability”; and “[d]on’t threaten to seek the death penalty to coerce a plea.” It quotes two big-city prosecutors, Denver’s Democratic District Attorney Beth McCann and Kings County (Seattle) Republican Prosecuting Attorney Dan Satterberg, in support of the principle that prosecutors should work to end the death penalty. Shortly after her election, McCann said, “I don’t think the state should be in the business of killing people.” Satterberg spoke out in favor of abolishing Washington’s death penalty, saying that the death penalty “no longer serves the interests of public safety, criminal justice, or the needs of victims.”

Election results in 2018 continued a trend away from prosecutors known for their aggressive pursuit of capital punishment. Since 2015, voters have removed prosecutors in 11 of the 30 most prolific death-sentencing counties in the country, replacing most of them with reform candidates. This year, prosecutorial candidates who ran on reform platforms won election in St. Louis County, Missouri; Jefferson County (Birmingham), Alabama; Bexar (San Antonio) and Dallas, Texas. Two of the nation’s most aggressive pro-death-penalty prosecutors also were ousted in Orange and San Bernardino counties in California.


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A Veterans Day Review: Recent Cases Highlight Concerns About Veterans and the Death Penalty

As Americans become increasingly aware of the role of combat trauma in the development of Post-Traumatic Stress Disorder (PTSD) and other mental health disorders, the shift in public perceptions towards veterans suffering from these disorders has played out in the courts in recent death penalty cases. In 2018, at least four military veterans facing death sentences have instead been sentenced to life in prison, and another two veterans won relief in their death-penalty cases. One military veteran has been executed so far this year.

In January, retired Marine Corps Lieutenant General John Castellaw (pictured) wrote in support of exempting mentally ill veterans from capital punishment, saying, "we can do better at recognizing the invisible wounds that some of our veterans still carry while ensuring they get the treatment that they deserve and that we owe them for their sacrifice. ...[W]e can do better by staying tough on crime but becoming smarter on sentencing those whose actions are impacted by severe mental illness." Prosecutors and juries in Indiana, Florida, Colorado, and Virginia have considered the military service and service-related disorders of murder defendants and determined that life sentences were more appropriate than the death penalty. In the Virginia trial of Iraq war veteran Ronald Hamilton, his attorneys presented evidence that he had been a model soldier who had saved the life of a fellow serviceman, but faced PTSD-related disorders and a deteriorating family life when he returned home. At Glen Law Galloway's trial in Colorado, Denver public defender Daniel King presented four days of testimony about Galloway’s character and background, including how the former Army veteran “snapped” following the collapse of his relationship with his girlfriend. King argued, “Mr. Galloway is not just the worst thing that he’s done. He’s committed many acts of kindness, friendship, service, love and duty.” In May, prosecutors withdrew the death penalty in exchange for guilty pleas in two unrelated cases involving military veterans Darren Vann in Indiana and Esteban Santiago in Florida. Santiago faced federal charges for a mass shooting, but prosecutors agreed to a plea deal because Santiago, an Iraq war veteran, suffers from schizophrenia and auditory hallucinations, had unsuccessfully sought treatment and assistance from the Veterans Administration, and had been committed to a mental hospital because of the seriousness of his mental illness.

Two death-sentenced prisoners were granted relief this year as a result of failures by their defense counsel to investigate and present mitigating evidence related to their military service and their service-related mental health disorders. Andrew Witt, an air force veteran who had been on U.S. military death row, received a life sentence after a court found his attorneys ineffective for failing to present mitigating evidence that he had suffered a traumatic brain injury. Robert Fisher's death sentence was reversed by a Pennsylvania federal court in part because his lawyer did not investigate or present evidence related to his service in Vietnam. Fisher was a Purple Heart recipient who struggled with brain damage, drug abuse, and mental health problems after his service.

On July 18, Ohio executed Robert Van Hook, an honorably discharged veteran who was suffering from long-term effects of physical and sexual abuse as a child and untreated mental health issues at the time of the offense. Van Hook had been unable to obtain care for his mental health and addiction issues from veterans service agencies after his discharge.

A 2015 report by the Death Penalty Information Center, Battle Scars: Military Veterans and the Death Penalty, estimated that approximately 300 veterans are on death row across the United States, many suffering from mental illness caused or exacerbated by their military service.


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2018 Midterm Elections: Governors in Moratorium States Re-Elected, Controversial California D.A. Ousted

The results of the November 6, 2018 mid-term elections reflected America's deeply divided views on capital punishment, as voters elected governors who pledged not to resume executions in the three states with death-penalty moratoriums, defeated an incumbent who tried to bring back capital punishment in a non-death-penalty state (click on graphic to enlarge), and re-elected governors who had vetoed legislation abolishing capital punishment in two other states. Continuing a national trend, voters in Orange County, California ousted their scandal-plagued top prosecutor, marking the ninth time since 2015 that local voters have replaced prosecutors in jurisdictions with the nation's largest county death rows.

In the three states with Governor-imposed death-penalty moratoriums, candidates who said they would continue execution bans or work to eliminate the state’s death penalty won easily. Tom Wolf, the Democratic governor of Pennsylvania who imposed the state’s moratorium on executions in 2015, was re-elected by with 57.6% of the vote. His challenger, Scott Wagner, who had promised to resume executions and had advocated a mandatory death penalty for school shootings, trailed badly with 40.8% of the vote. Oregon's incumbent Democratic governor Kate Brown, who continued the state’s death-penalty moratorium instituted in 2011 by then-governor John Kitzhaber, won re-election in a six candidate field with 49.4% of the vote, five percentage points higher than her Republican challenger Knute Buehler. In Colorado, Democratic congressman Jared Polis, who campaigned on the repeal of the state’s death penalty, won the governorship with 51.6% of the vote, outpacing Republican state treasurer Walker Stapleton, who received 44.7% of the vote. Democrats also took control of both houses of the Colorado legislature, increasing the likelihood that legislation to abolish the death penalty will be considered in the upcoming legislative session. Illinois Republican Governor Bruce Rauner suffered an overwhelming election defeat at the hands of venture-capitalist J.B. Pritzker. Trailing badly in the polls, Rauner tried in May 2018 to condition passage of gun control legislation on reinstatement of the state’s death penalty. Pritzker outpolled Rauner by 54.0% to 39.3%.

On the other hand, two governors who prevented death-penalty repeal bills from going into effect in their states also won re-election. Nebraska's Republican Governor Pete Ricketts, who vetoed a bipartisan bill to abolish the state's death penalty in 2015 and then, after the legislature overrode his veto, personally bankrolled a successful state-wide referendum in 2016 to block the repeal, cruised to re-election with 59.4% of the vote. New Hampshire Republican Governor Chris Sununu, who vetoed the state’s death-penalty repeal bill in March 2018, won re-election with 52.4% of the vote. In Florida, Republican Ron DeSantis won the governorship against Democratic candidate Andrew Gillum, who had pledged, if elected, to suspend executions in Florida until he was sure the death-penalty system was nondiscriminatorily applied.

Local voters in Orange County replaced District Attorney Tony Rackauckas with a political rival, county supervisor Todd Spitzer. Rackauckas has been embroiled in a scandal involving the secret use of prison informants to obtain or manufacture confessions from suspects and then stonewalling investigation of the multi-decade illegal practice.  As of January 2013, Orange County had the seventh largest death row of any county in the U.S., and since then, it has imposed the fourth most death sentences of any county. 


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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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Colorado Supreme Court Overturns Prison-Murder Conviction, Says Prosecutors Withheld Evidence in Death-Penalty Case

The Colorado Supreme Court has upheld a trial court ruling overturning the first-degree murder conviction of David Bueno (pictured) after Arapahoe County prosecutors who sought the death penalty against him in a prison killing hid evidence that pointed to another suspect. The January 22 ruling comes in the wake of a trial court ruling that prosecutors in the state's 18th Judicial District, which includes Arapahoe County, also suppressed more than twenty pieces of evidence that should have been disclosed to the defense in the capital trials of death-row prisoners Sir Mario Owens and Robert Ray. Bueno's lawyer, David Lane, called the pattern of prosecutorial conduct in the 18th Judicial District, "Mississippi in the mountains." "Ethically, prosecutors are required to seek justice, not convictions," he said. "But they apparently lose sight of that on a regular basis, especially on death-penalty cases in the 18th Judicial District." Bueno and a second Latino prisoner, Alex Perez, were charged with stabbing a white prisoner, Jeffrey Heird, to death in 2004. The day before the murder, another white prisoner, Michael Snyder, told his wife in a phone call recorded by the prison that he had been ordered to stab a prisoner. The evening after the murder, a prison nurse found a note containing threats by a white supremacist prison group to kill “men of the white race who refuse to accept their proud race.” The nurse immediately prepared an incident report that included a copy of the letter. One day later, another white inmate died under suspicious circumstances and a prison lieutenant who was investigating the death prepared a second report suggesting the deaths might be connected. The court wrote that undisputed evidence established that "the prosecution possessed both of these reports within days of Heird’s murder but did not provide copies of them to Bueno until five years later," after he had been convicted. Despite specific requests by the defense to be provided all incident reports, and in violation of its constitutional obligation to disclose all potentially exculpatory evidence, the court found prosecutors had made “a conscious decision ... to keep the information from the Defendant." The court agreed with the trial judge that these violations were prejudicial because "[t]he identity of Heird’s killer was the core issue at trial, with Bueno arguing that white supremacists had committed the murder," and the jury had taken four days to deliberate, including asking the court how to overcome a deadlock. The jury then imposed a life sentence, rejecting the death penalty in the case. In a 2010 interview with Westword after the trial court had overturned Bueno's conviction, Lane called it "truly stunning that the prosecutors in this case hid evidence that was so favorable to the defense" and said "it is particularly shocking in light of the fact that this was a death penalty case." A 2015 study showed significant racial and geographic disparities in the prosecution of death-penalty cases in Colorado, with non-white defendants and defendants in the 18th Judicial District statistically more likely to be capitally prosecuted. All three prisoners on Colorado's death row are from the 18th Judicial District. 18th District DA George Brauchler, who opposed the grant of a new trial in the case, is currently seeking election as Colorado's Attorney General.


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