Death Penalty Information Center en-US Thu, 22 Aug 2019 15:05:00 -0400 Fri, 23 Aug 2019 14:14:49 -0400 No Court Has Reviewed the Evidence that Gary Bowles May Be Intellectually Disabled; Florida Plans to Execute Him Anyway. Thu, 22 Aug 2019 15:05:00 -0400 Death Penalty Information Center In a case that raises concerns about procedural impediments that prevent enforcement of constitutional rights, Florida is preparing to execute a man whose claim of intellectually disability has never been reviewed by the state or federal courts. [UPDATE: Florida executed Gary Ray Bowles on August 22, 2019.]

In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that the use of the death penalty against individuals with intellectual disability constitutes cruel and unusual punishment, in violation of the Eighth Amendment. Twelve years later, in Hall v. Florida, the Court struck down Florida’s approach to enforcing that prohibition, holding that the state had unconstitutionally required death-row prisoners to meet a 70 IQ-score cutoff before they could be considered intellectual disabled. In 2017, Gary Ray Bowles, whose IQ scores slightly above that cutoff had previously prevented him from obtaining relief under Atkins in Florida’s courts, filed an intellectual disability petition in state court seeking to vacate his death sentence. The petition sat idly for two years while new counsel was appointed to represent Bowles. Then, shortly after new counsel was appointed, and before his petition could be reviewed, Governor Ron DiSantis issued a death warrant scheduling Bowles’ execution for August 22, 2019. The Florida state and federal courts have refused to review the merits of his claim and he has petitioned the U.S. Supreme Court seeking a stay of execution and review of his claim.

Texas to Execute Larry Swearingen Based on Forensic “Quackery,” Lawyers Say Wed, 21 Aug 2019 16:02:00 -0400 Death Penalty Information Center With serious doubts swirling as to virtually every piece of forensic evidence in his case, Texas plans to execute Larry Swearingen—who has always maintained his innocence in the murder of Melissa Trotter—on August 21, 2019. His attorneys say his conviction is grounded in junk science that has been repudiated by numerous forensic experts, including false testimony regarding pantyhose used to strangle Trotter, blood found under her fingernails, and the time of her death. Even after the Texas Crime Lab disavowed portions of its forensic technician’s testimony in the case, the U.S. Court of Appeals for the Fifth Circuit rejected Swearingen’s request for a stay.

Prosecutors assert that there is a “mountain of evidence” against Swearingen. His defense counters that that evidence is “false and misleading.” “They are going to execute someone that the legitimate forensic science has proven innocent,” Swearingen’s appeals lawyer, James Rytting, told the Texas Tribune. “And the execution is going through on the basis of other forensic science that is borderline quackery — in fact it is quackery.” [UPDATE: The U.S. Supreme denied Swearingen’s petition for habeas corpus and application for stay of executionaround 7:00 P.M. Eastern time on August 21 and he was executed shortly thereafter.]

Swearingen has presented evidence undermining the forensic testimony purporting to implicate him in Trotter’s murder and has presented testimony from multiple forensic experts that it was physically impossible for him to have committed the murder.

Trotter was strangled with one leg of a pair of pantyhose. Sandy Musialowski, a technician from the Texas Department of Public Safety Crime Lab falsely testified at Swearingen’s trial that pantyhose found in his home matched those used to kill the victim “to the exclusion of all other pantyhose.” In closing argument to the jury, the prosecution called this evidence “the smoking gun” of Swearingen’s guilt. However, Musialowski’s notes of her initial examination of the evidence—which were never disclosed to Swearingen’s lawyers at the time of trial—paint a different picture, indicating that Musialowski initially had found “no physical match between ligature & pantyhose.” By the time of Swearingen’s trial the following year, she testified that the two were “a unique physical match.”

Brady W. Mills, director of the Texas crime lab, has conceded that Musialowski’s testimony at trial was overstated. He said that “the terms ‘unique’ and ‘to the exclusion of others’ were common language throughout the forensic community, at the time … Today we would report that the two pieces were once joined, but would not include the statement ‘to the exclusion of all others.’” The defense argues that the routine presentation of false testimony by forensic witnesses illustrates that the evidence was junk science. Other experts who have examined the evidence dispute both Musialowski’s terminology and her basic conclusion. In an affidavit submitted by the defense, Deborah Young, a professor of textile science at Cal Poly Pomona, wrote that “[a]t first glance” the pieces of fabric from the ligature and the pantyhose “appear to connect, but once the deliberate space between them is removed, it becomes quite clear that they do not match … My opinion is that while both pantyhose were cut in the same basic silhouette, they were not cut from the same piece. These are not a match, and certainly not to ‘the exclusion of all other pantyhose.’”

Jewish Congregations Ask Attorney General Not to Seek Death Penalty in Pittsburgh Synagogue Shooting Tue, 20 Aug 2019 11:34:00 -0400 Death Penalty Information Center Leaders from two of the three congregations affected by the October 27, 2018 shootings at the Tree of Life synagogue (pictured) in Pittsburgh are asking the federal government not to seek a death sentence for the accused white supremacist murderer.

Rabbi Jonathan Perlman of New Light Congregation and President Donna Coufal of Dor Hadash Congregation wrote letters to Attorney General William Barr, requesting that Robert Bowers, charged with killing 11 Jewish worshippers in Pittsburgh, receive a life sentence. Miri Rabinowitz, whose husband, Dr. Jerry Rabinowitz, was among those killed, joined the request in a separate letter. The letters—which deliberately avoid using the shooter’s name to deny him additional notoriety—highlight religious objections to capital punishment, as well as concerns that a death-penalty trial would retraumatize survivors of the shooting and the victims’ families.

In March 2019, Rabbi Perlman—whose congregation lost three members in the shooting—and his wife, Beth Kissileff met with U.S. Department of Justice officials about the killings. In an opinion article for the Religion News Service, Kissileff wrote that they urged federal prosecutors not to seek the death penalty in the case. “If as religious people we believe that life is sacred, how can we be permitted to take a life, even the life of someone who has committed horrible actions?,” she wrote.

U.S. House Oversight Committee Launches Investigation into Resumption of Federal Executions Mon, 19 Aug 2019 10:02:00 -0400 Death Penalty Information Center The U.S. House of Representatives Committee on Oversight and Reform announced on August 14, 2019 that it has launched an investigation into the Department of Justice’s plan to restart federal executions using the drug pentobarbital. Citing concerns about the source of drugs the Administration intends to use in five executions it has scheduled in December 2019 and January 2020, the Oversight Committee’s Subcommittee on Civil Rights and Civil Liberties has sought documents and information from the Department of Justice (DOJ) related to Attorney General William Barr’s announcement on July 25, 2019 that the federal Bureau of Prisons (BOP) would resume executions after a sixteen-year hiatus.

The letter, signed by Subcommittee Chair Jamie Raskin (D-MD) and Congresswoman Ayanna Pressley (D-MA), seeks information about the manufacturer of the pentobarbital the government plans to use to execute prisoners in its new one-drug execution protocol, the procurement process, and whether the BOP has already acquired the drugs. “We are extremely concerned about the types of facilities from which the Bureau will obtain its pentobarbital, whether the Bureau will be able to guarantee that its intended method of execution is as painless as possible, and whether the Bureau will be subject to rigorous protocols to prevent the problems that have occurred at the state level,” Raskin and Pressley wrote.

The Administration’s new execution plan is similar to the single-drug execution process used in Texas, Missouri, and Georgia. Collectively, those state have carried out 92 pentobarbital executions since January 2014, two thirds of the lethal-injection executions in the United States during that period.

“Numerous reports document the dangers associated with pentobarbital and the difficulty in procuring reliable doses,” the letter says. “Texas reportedly purchased its supply from a compounding pharmacy whose state license was on probation for providing dangerous drug mixtures to children; the same pharmacy was warned by the Food and Drug Administration (FDA) about ‘serious deficiencies in [its] practices for producing sterile drug products.’ Missouri reportedly purchased its pentobarbital from a pharmacy that has repeatedly been found to engage in hazardous pharmaceutical procedures.”

Life Sentence in America’s Deadliest Death-Penalty County Illustrates Impact of Alabama’s End of Judicial Override Fri, 16 Aug 2019 13:57:00 -0400 Death Penalty Information Center A life sentence recently imposed in America’s deadliest death-penalty county illustrates the impact of Alabama’s 2017 repeal of its former law permitting trial judges to impose the death penalty despite jury votes for life. On August 9, 2019, Houston County Judge Larry Anderson sentenced Nathaniel Dennis to life in prison without parole for the murder of a convenience store clerk, after the jury in his case recommended a life sentence. According to news reports, Anderson had wanted to impose a death sentence, and only reluctantly acquiesced in the jury’s recommendation.

Alabama was the last state in the U.S. to abolish judicial override, which accounts for approximately 20% of all Alabama death sentences and 11 of its 66 executions. It remains the only state in the country to permit a trial judge to impose a death sentence based upon a non-unanimous jury recommendation for death.

Houston County has imposed more death sentences by far than any other county its size. Despite a population just over 100,000, it currently has 19 people on its death row — the highest per capita death row of any county with more than two death-row prisoners. As of January 1, 2013, Houston County’s death row ranked 30th in size among all counties in the United States, even though it was less than one-quarter the size of any other county in the top thirty and two-thirds of those counties had populations of more than one million.

Stay of Execution Granted for Brain-Damaged and Intellectually Impaired Texas Man Who Was Eighteen at Time of Crime Thu, 15 Aug 2019 16:03:00 -0400 Death Penalty Information Center The U.S. Court of Appeals for the Fifth Circuit has stayed the execution of Texas death-row prisoner Dexter Darnell Johnson one day before he was scheduled to die. The ruling, issued late in the day on August 14, 2019, permits Johnson to litigate his claim that he is ineligible for the death penalty because of intellectual disability. The stay marked the second time in four months that federal courts intervened in Johnson’s case to halt a looming execution.

On April 30, 2019, the U.S. District Court for the Southern District of Texas granted Johnson a stay two days before a prior scheduled execution so that his newly appointed habeas corpus lawyers could have time to investigate claims of possible conflicts of interest and ineffective representation involving his prior counsel. Although that order gave new counsel 90 days to develop those claims, barely a week passed before Texas prosecutors asked a state court judge in Harris County to set a new execution date.

Johnson, who is brain damaged and intellectually impaired and has been diagnosed with schizophrenia, was convicted and sentenced to death for the murders of two teenagers in June 2006. He had turned 18 years old just days before the killings. Johnson’s lawyers sought a stay of execution in state court to litigate a range of issues relating to mental health and intellectual disability and the presentation of what he claimed was false testimony at trial. However, the Texas Court of Criminal Appeals refused to address his claims and denied a stay. In federal court, his new lawyers sought to reopen his prior habeas corpus proceedings, in which he had been represented by a lawyer who, his new lawyers said, had failed to properly raise his claims in both state and federal court. He also requested permission from the federal appeals court to file a new habeas corpus petition seeking to show that he is intellectually disabled. The Fifth Circuit declined to reopen his prior habeas proceedings, but granted him a stay on his intellectual disability claim.

High Cost of Death-Penalty Cases Continues to Vex Utah County Wed, 14 Aug 2019 16:37:00 -0400 Death Penalty Information Center The high cost of meeting its obligation to provide constitutionally-mandated effective representation for indigent defendants in capital cases continues to generate controversy in Utah’s fourth largest county. With two capital trials pending and a lengthy post-conviction proceeding underway on whether a court-appointed lawyer in a third capital case provided ineffective representation, the Salt Lake Tribune reports that Weber County is facing bills for defense costs that will run into the hundreds of thousands of dollars. If prosecutors seek the death penalty in another case, County Commissioner Gage Froerer (pictured) told the Tribune, the county might have to cut funding for budget items like parks or roads to pay for it.

Most counties in Utah contribute to a state-managed fund that helps pay for the costs of death-penalty cases. Weber County, however, is one of five counties that — hoping to avoid the initial payment of $300,000 — have opted not to pay into the fund. That decision has put the county — which has long been criticized for underfunding defense lawyers in death penalty cases — on the financial hook for the entire cost of representation of indigent capital defendants and death-row prisoners.

In 2012, Utah state legislative analysts estimated that the cost of trial and appeals in a case that resulted in a death sentence was $1.6 million higher than a life-without-parole sentence. A later study, the Tribune reported in 2018, estimated that Utah state and county taxpayers have spent nearly $40 million pursuing prosecutions in 165 death-penalty cases over the previous two decades. Only two of those cases resulted in death sentences. Commissioner Froerer, who during his prior tenure in the Utah state legislature sponsored a bill to abolish the state’s death penalty, expressed continuing concerns about the costs of the state’s death penalty. “That was one of my concerns and major issues is the cost involved,” he said, “and the results usually aren’t very productive in solving the issues for society or the victim’s family.”

Sister Helen Prejean: A Memoir on a Life of Social Activism Tue, 13 Aug 2019 16:34:00 -0400 Death Penalty Information Center Sister Helen Prejean, the acclaimed author of Dead Man Walking, has written a new spiritual memoir, River of Fire: My Spiritual Journey. The book, released August 13, 2019 by Random House publishers, tells the story of her spiritual development from joining the Congregation of St. Joseph at age 18 to becoming a leading voice in the movement to abolish the death penalty.

The “spark at the heart of [her death-penalty activism],” Prejean told The New York Times, was when, in her forties, she first started corresponding with death-row prisoner Patrick Sonnier. That experience formed the basis of Dead Man Walking. “The big annunciation was writing a man on death row and witnessing his execution. When I walked out of that execution chamber, all this was new to me. I didn’t know anything about the criminal justice system. I love to quote what Tim Robbins said: ‘The nun was in over her head.’ Back then I didn’t know anything.”

Prejean has provided spiritual comfort to six men whom she accompanied to their executions. She described that experience to Terry Gross on NPR’s Fresh Air, saying, “Of course I'm on the outside of them, but in a way I'm on the inside of them too, because I've gotten to know them. ... [They] cannot help but anticipate and imagine their death, which is coming. It's predetermined, and they all have the same nightmare: ‘The guards come in for me. It's my time, and I'm kicking, struggling, “No, no!” and they're trying to drag me out of my cell, and then I wake up and it's a dream.’ ... They shared that with me and their inner anguish.” She said that, during the executions, she tries to convey “pure presence” to the prisoners. “In my faithfulness to them and in visiting them, they know my love and care for them, and that I believe in their dignity.”

Lawyers, Advocates Seek Halt to Execution of Stephen West in Tennessee Mon, 12 Aug 2019 16:07:00 -0400 Death Penalty Information Center Advocates from a variety of backgrounds are urging Tennessee Governor Bill Lee to stop the August 15, 2019 execution of Stephen West (pictured), saying that West did not commit the murder and urging the governor not to execute a man who is severely mentally ill. [UPDATE: Governor Lee denied clemency and West was executed on August 15.]

In a July clemency petition that is pending before the governor, West’s lawyers argue for mercy based upon his innocence of murder and his debilitating psychological vulnerabilities. Though they concede that West was present at the murders of Wanda Romines and her daughter, Sheila Romines, and that he raped Sheila, West’s lawyers maintain that his co-defendant, Ronnie Martin, fatally stabbed the victims. The petition says that because of the chronic extreme abuse and trauma he experienced as a child, "Steve was not psychologically equipped to deal with the terrible situation he found himself in" and disassociated when he saw Martin killing the women.

The clemency petition asks what it calls “[a]n important question”—"if Steve did not intend for either victim to be killed, how could he just stand by and watch while Martin did? The answer to this question,” the petition suggests, “lies in Steve’s own tragic background." The petition describes the relentless abuse and neglect West endured, which included his mother beating him so hard with a broom that it snapped, his parents denying him food, and ongoing beatings that resulted in his ankles being broken at least seven times. The extreme trauma, the petition says, caused or exacerbated West’s severe mental illnesses, including schizophrenia and post-traumatic stress disorder. West’s parents retained a lawyer to defend him at trial, but instructed counsel not to discuss or present evidence relating to his family background. As a result, his jury never heard this evidence.

The clemency plea has received support from a Vanderbilt law and psychiatry professor, four great-great-granddaughters of Tennessee Gov. Albert Houston Roberts, and religious groups.

County Commissioner Proposes Moratorium on Capital Prosecutions in Dallas, Texas Fri, 09 Aug 2019 13:32:00 -0400 Death Penalty Information Center A Dallas, Texas, county commissioner has called for a two-year halt on death-penalty trials, saying it would give the county time to study the financial and ethical costs of capital punishment. On August 6, 2019, Commissioner J.J. Koch (pictured) proposed a county moratorium on capital prosecutions, with cost savings from not pursuing the death penalty redirected toward investigating and prosecuting human trafficking cases. The proposal was notable coming in a county that has executed more prisoners since capital punishment resumed in the U.S. in the 1970s than any other county except Harris, Texas.

Several county commissioners expressed support for Koch’s proposal, although they acknowledged that the plan was aspirational and that they could not direct the district attorney, who has exclusive charging authority, to enforce it. District Attorney John Creuzot commended Koch “for having the courage to bring … up” the issue. Creuzot said he supported discussing the proposal but could not commit himself to a moratorium on prosecutions “because I don’t know what’s around the corner.”

Prisoners' Rights Groups Accuse Oklahoma of Unconstitutional Death-Row Conditions Thu, 08 Aug 2019 14:44:00 -0400 Death Penalty Information Center Oklahoma’s practice of automatically housing death-row prisoners in solitary confinement and denying them communal religious services is unconstitutional and inhumane, a coalition of national and local civil rights organizations says. In a July 29, 2019 letter to interim Oklahoma Department of Corrections (ODOC) director Scott Crow, the coalition—headed by the American Civil Liberties Union of Oklahoma—reported that its two-year investigation into the state’s housing of death-row prisoners revealed conditions that were “dangerous and injurious.” The group issued a formal demand that the ODOC change the conditions of death-row confinement—a precursor to filing a federal lawsuit— but offered to work with prison officials to “avoid the expense and delay of protracted litigation.”

Oklahoma death-row prisoners are housed in the H-Unit of the Oklahoma State Penitentiary (pictured) in McAlester in what the rights groups characterize as “inhumane and oppressive conditions.” ODOC’s “policies that automatically sentence condemned people to permanent solitary confinement,” they say, “raise serious constitutional, human rights, and human dignity questions.” The groups’ letter provides a detailed description of confinement on McAlester’s death row. “The condemned men,” they say, “are locked in their cells 22 to 24 hours a day. By policy they are offered a 15-minute shower three times a week and one hour of solitary exercise five times a week in an enclosed concrete room of 20 feet by 20 feet that has an opaque skylight-ceiling that obstructs any view of the sky or sun. People with approved family visitors may have noncontact visits on Fridays and weekends, behind plexiglass and over a phone. The facility offers no form of congregate activity or time outside of cells, with no programs, educational services, or work opportunities.”

Death-row conditions similar to those in Oklahoma have been challenged in court in Arizona, South Carolina, and Virginia, prompting those states to end their policies of routinely keeping all death-row prisoners in solitary confinement. “Multiple states have had success mainstreaming death-sentenced people or eliminating automatic solitary confinement for them, including Missouri, North Carolina, Colorado, Arizona, and Virginia,” said Donald Specter, Executive Director of the non-profit Prison Law Office, which advocates for constitutional conditions in prisons, jails, and juvenile halls. “There is no reason Oklahoma cannot do the same.”

Death Penalty Waning in Indiana, With Fewer Capital Prosecutions and No Death Sentences Wed, 07 Aug 2019 13:39:00 -0400 Death Penalty Information Center Following the trends across most of the Midwest, the death penalty is waning in Indiana. Capital prosecutions are down, no jury has voted for death since 2013, and the state is closing in on its tenth consecutive year without an execution. An August 4, 2019 Fort Wayne Journal-Gazette review of the death penalty in the state reports that even high-profile murders that started out as death-penalty cases have recently been resolved with non-capital pleas.

Several factors have contributed to the decline, according to the Journal-Gazette report. Huntington County Prosecutor Amy Richison (pictured), who chairs the Indiana Prosecuting Attorneys Council’s capital litigation committee, told the newspaper that part of the move away from the death penalty stems from 1993 legislation that made a sentence of life without parole available as an alternative to the death penalty. Richison said cost and the length of the trial and appeal process has also played a role. Indianapolis defense lawyer Eric Koselke told the Journal-Gazette that victims' families are also “a big factor in why death penalty filings have dropped.” “People are aware of how long this process takes and they want closure and don't want to go through it,” he said.

Indiana currently has eight prisoners under sentence of death, and a ninth whose death sentence was overturned in the courts is awaiting a resentencing trial. Since 2016, three death-row prisoners have exhausted their appeals. However, Attorney General Curtis Hill says, the Indiana Department of Correction can’t execute them because it hasn’t been able to obtain the drugs required under the state’s three-drug execution protocol. “Inadequate supply chain has been a problem for two years,” Hill said. According to the Journal-Gazette, the Department of Correction “confirmed … that the state doesn't have the necessary drugs to conduct an execution.”

Appeals Court Clears Path for Death-Row Exonerees’ Lawsuit Against North Carolina Police Officers to Go to Trial Tue, 06 Aug 2019 16:00:00 -0400 Death Penalty Information Center A federal appeals court has cleared the way for a civil lawsuit by two North Carolina death-row exonerees to advance to trial, rejecting a claim that police officers who allegedly violated their constitutional rights were immune from liability. On July 31, 2019, the U.S. Court of Appeals for the Fourth Circuit upheld a trial court ruling allowing Henry McCollum (pictured, left) and Leon Brown (pictured, right) to sue North Carolina State Bureau of Investigation (SBI) agents Leroy Allen and Kenneth Snead and Robeson County detectives Joel Garth Locklear and Kenneth Sealey for false arrest, malicious prosecution, deprivation of due process, and municipal liability.

McCollum and Brown, who are half-brothers, were just 19 and 15, respectively, when they were arrested for the rape and murder of 11-year-old Sabrina Buie. Both men are intellectually disabled, which made them particularly vulnerable to coercion and manipulation by police. In the suit—which was filed on their behalf in 2015, one year after they were exonerated and released from prison—they allege that the officers “coerced and fabricated [their] confessions, and then, to cover up this wrongdoing, … withheld in bad faith exculpatory evidence that demonstrated [McCollum and Brown’s] innocence and buried pieces of specific evidence indicating that” another suspect, Roscoe Artis, had committed the crime. The case has not yet been heard by a jury because of the officers’ appeal.

Former National Corrections Chief Warns of Dangers Federal Execution Plan Poses for Prison Personnel Mon, 05 Aug 2019 16:34:00 -0400 Death Penalty Information Center A former high-ranking federal corrections official has warned that the federal government’s plan to execute five prisoners over a five-week period in December and January risks seriously traumatizing correctional workers. Allen Ault (pictured) is a former chief of the Justice Department’s National Institute of Corrections who also served as corrections commissioner in Georgia, Mississippi, and Colorado, and as chairman of the Florida Department of Corrections. In a July 31, 2019 op-ed in The Washington Post, Ault says, “I know from my own firsthand experiences, supervising executions as a state director of corrections, that the damage executions inflict on correctional staff is deep and far-ranging.”

Ault’s op-ed describes the mental and emotional toll that executions take on corrections officials, including those who do not directly participate in the execution. Execution team members, he says, have reported “nightmares, insomnia and addiction” and have developed post-traumatic stress disorder (PTSD) as a result of taking part in executions.

The “compressed schedule” proposed by the federal government presents additional challenges. Three executions are scheduled in a five-day span in December 2019, with two more in January 2020 just two days apart. According to Ault, this schedule “causes an extended disruption to normal prison operations and precludes any attempt to return to normalcy following an execution. It also prevents any meaningful review by execution team members and other officials to address problems or concerns in the execution process. That increases the risk that something could go horribly wrong in the next execution. And if a ‘routine’ execution is traumatizing for all involved, a botched one is devastating.”

Oregon Governor Signs Bill Narrowing Use of the Death Penalty Fri, 02 Aug 2019 14:26:00 -0400 Death Penalty Information Center Calling the state’s death penalty “dysfunctional,” “costly,” and “immoral,” Oregon Governor Kate Brown (pictured, left, at signing ceremony) on August 1, 2019 signed a bill significantly limiting the crimes for which capital punishment can be imposed in the state. The new law amends Oregon’s definition of death-eligible “aggravated murder,” reducing the categories of murder punishable by death from 19 to four. The new law restricts the death penalty to cases involving acts of terrorism in which two or more people are killed, premeditated murders of children aged thirteen or younger, prison murders committed by those already incarcerated for aggravated murder, and premediated murders of police or correctional officers.

Oregon’s action continues the steady trend away from capital punishment across the American west. Governors in four western states—Oregon, Washington, Colorado, and California—have imposed moratoria on executions this decade, and the Washington Supreme Court struck down its capital-sentencing statute as unconstitutional in November 2018. In 2011, then-Governor John Kitzhaber instituted the first death-penalty moratorium, declaring: “I refuse to be a part of this compromised and inequitable system any longer; and I will not allow further executions while I am Governor.” In halting executions in the state, Kitzhaber said, “I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families and reflects Oregon values.” In 2015, shortly after taking office, Brown extended the state’s execution moratorium.

In 2018, every western state except Arizona and Nevada set or tied a record low in the number of new death sentences imposed, and those states imposed just one sentence more than their record lows. No state west of Texas has carried out an execution since the two-hour-long botched execution of Joseph Wood by Arizona in July 2014.

“Oregon’s legislature made the wise decision to ‘close the front door’ — most of the way, at least — to death row, reserving death sentences for only the rarest and most heinous murders,” Brown said in prepared remarks at a signing ceremony that was closed to the media. “This is an important step, in Oregon and nationally, toward one day eliminating the death penalty nationwide.”

Ohio Governor Says State Cannot Obtain Lethal-Injection Drugs, Reschedules Upcoming Execution Thu, 01 Aug 2019 17:44:00 -0400 Death Penalty Information Center Ohio cannot obtain drugs to carry out executions without putting public health at risk, Governor Mike DeWine (pictured) announced on July 31, 2019. DeWine told reporters that pharmaceutical manufacturers are unwilling to sell the state drugs for executions and have threatened to stop selling medicines to any state agency if they suspect the drugs might be diverted from therapeutic use to use in executions. A sales embargo could mean that the state would not be able to obtain medicines for treatment of patients at veterans’ homes, state and community drug and alcohol addiction services, and the Department of Youth Services.

In recent years, Ohio had purchased the drugs it used in executions through its Department of Mental Health and Addiction Services without telling the drug suppliers how the medicines would be used, and then drove the drugs to the state’s execution facility. “If pharmaceutical companies discontinue supplying medications to the state of Ohio for these populations that are currently being served, it would put tens of thousands of our citizens at risk,” DeWine said. “Drugs they need for their health will be put in peril.” DeWine said that, as a result of these public health risks, the state may need to reconsider its execution method. “So there is a real threat which we have to take into consideration, which [the Ohio Department of Rehabilitation and Correction] has to take into consideration — that the use of a particular drug that we would announce that would be used in (an execution) protocol might result in that particular drug company cutting off the state of Ohio,” the governor said. DeWine said he plans to meet with House Speaker Larry Householder and Senate President Larry Obhof to discuss what actions the state should take. None of the three men would speculate on the likely course of action, but Obhof said, “I think all three of us approach the issue with an open mind.”

Later in the day, DeWine announced that the state would not go forward with the scheduled September 12, 2019 execution of Warren Keith Henness. That execution, DeWine said, would be rescheduled for May 14, 2020. It is the second time DeWine has rescheduled Henness’s execution. In January 2019, the governor granted a six-month reprieve to Henness in the wake of a federal court ruling in his case that compared Ohio’s three-drug execution protocol to waterboarding and chemical fire. Judge Michael Merz wrote, “If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment.” The state had planned to use a three-drug protocol beginning with midazolam, a sedative which has been involved in problematic executions in several states. In February 2019, Gov. DeWine announced that he would halt executions until the state developed a new execution protocol and it was approved by courts.

Federal Appeals Court Overturns Mother's Conviction in Texas Child Murder Case That May Have Been an Accidental Death Wed, 31 Jul 2019 20:37:00 -0400 Death Penalty Information Center Citing trial court interference in her right to present a defense, a federal appeals court has overturned the conviction of a Texas mother who was sentenced to death on charges that she had murdered her two-year-old daughter. In an unpublished, unsigned opinion issued on July 29, 2019, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said that trial court rulings that blocked Melissa Elizabeth Lucio (pictured) from calling an expert witness to challenge the reliability of statements she gave to police violated Lucio’s right to present a “complete defense.” The appeals court reversed a federal district court decision that had upheld Lucio’s conviction and death sentence and returned the case to the lower court to grant Lucio a new trial.

The prosecution alleged that Lucio had physically abused her daughter, Mariah, over a period of time and that the child had been beaten to death by her mother. Lucio’s lawyers contested the cause of death, presenting expert testimony from a neurosurgeon that Mariah may instead have died from head trauma caused by falling down a flight of stairs. The primary evidence implicating Lucio was a recording of statements she made to police during lengthy interrogation the night her daughter died. During that interrogation, Lucio admitted to spanking Mariah, but denied ever having abused her. Late into the night, after hours of continuous interrogation, Texas Ranger Victor Escalon pressured Lucio to say more. She responded with: “I don’t know what you want me to say. I’m responsible for it.” When Escalon later asked her about specific bruises on her daughter’s body, Lucio said, “I guess I did it. I guess I did it.”

The prosecution characterized Lucio’s interrogation as evidence that she had abused her daughter, and therefore must have killed her. Lucio’s lawyers sought to present testimony from a psychologist to explain the coercive effect of the police interrogation on Lucio, whom Dr. John Pinkerman described as a “battered woman” who “takes blame for everything that goes on in the family.” The trial court barred Pinkerman from testifying, asserting that his testimony was irrelevant because Lucio had “denied ever having anything to do with the killing of the child.”

The Fifth Circuit rejected the factual and legal basis for the trial court’s finding, holding that the exclusion of the evidence was “of such a magnitude or so egregious that [it] render[ed] the trial fundamentally unfair.”

Mixed Response to Federal Execution Announcement: Conservatives, Catholic Bishops Oppose Decision, Arizona Announces Plans to Follow Federal Lethal-Injection Protocol Tue, 30 Jul 2019 13:05:00 -0400 Death Penalty Information Center The announcement by the U.S. Department of Justice (DOJ) that it intends to resume federal executions after a 16-year hiatus has sparked commentary from across the political spectrum and emboldened the Arizona Attorney General to seek a resumption of executions in that state. Responses from conservative pundits demonstrated the increasing bipartisan skepticism towards the death penalty. Catholic bishops reasserted the Church’s now unequivocal opposition to capital punishment. Editorial boards reflected regional differences in perspective.

A number of conservative commentators voiced strong opposition to the DOJ decision, saying it violated conservative values. Jared Olsen (pictured), a Republican member of the Wyoming House of Representatives who has sponsored legislation to abolish that state’s death penalty, noted the continuing conservative movement away from capital punishment as “more conservatives have come to realize that capital punishment conflicts irreconcilably with their principles of valuing life, fiscal responsibility and limited government.” In an op-ed in in The New York Times, Olsen questioned the administration of the federal death penalty, writing: “Punishment for crime has historically been a state prerogative. Yet many of the people on federal death row are there for crimes that have little to do with a real federal interest.” An opinion article for Fox News by Hannah Cox, the National Manager of Conservatives Concerned About the Death Penalty, described the death penalty as “a failed Big Government program” that offends conservative values, and said “[o]ur federal government is failing by embracing it.”

Former Pennsylvania Prison Superintendent Describes Toll of Working on Death Row Mon, 29 Jul 2019 17:18:00 -0400 Death Penalty Information Center A former Pennsylvania death-row prison superintendent says working on death row makes corrections personnel feel “less human” and “can be profoundly damaging” psychologically. Cynthia Link (pictured) served as the Superintendent of Pennsylvania’s State Correctional Institution at Graterford from 2015 to 2018, during a period in which the prison housed more than 20 of the Commonwealth’s death row prisoners. In a July 16, 2019 op-ed for Penn Live, Link describes the psychological toll that corrections officers face when working on death row. She explains the challenging nature of working with condemned prisoners even in a state such as Pennsylvania, which has not carried out an execution in 20 years.

“Few outside of my profession realize how difficult capital punishment is for the staff; even when executions are not being carried out, housing death row prisoners can be profoundly damaging,” she writes. Enforcing the “inhumane” conditions on death row causes extreme stress and prevents corrections officers from doing the jobs they were trained to do. “Politics, policy and post order often kept us from providing professionally prudent care,” Link says.

“Death row was designed to provide temporary housing prior to an execution,” Link says, “but today’s death-sentenced prisoners live inhumanely for many years or decades while staff struggle to help them survive their ‘temporary’ stay.” In an effort to protect corrections officers, Pennsylvania limits them to two year “tours of duty” working on death row and monitors them for mental health problems. Despite those efforts, the stress of the assignment has serious effects on officers. Link explains: “Some officers indulge in alcohol, drugs or other dangerous behaviors to find relief. Some isolate and leave their families. Some have even taken their own lives when it becomes too overwhelming. The stress on death row staff is seldom-discussed but undeniably real. Each tour of duty on death row makes you feel less human.”

Federal Government Announces New Execution Protocol, Sets Five Execution Dates Thu, 25 Jul 2019 17:59:00 -0400 Death Penalty Information Center The U.S. Department of Justice (DOJ) has announced its intent to adopt a new federal execution protocol using a single execution drug and has issued death warrants setting execution dates for five federal death-row prisoners. In a July 25, 2019 press release, the DOJ said that Attorney General William P. Barr had directed the Federal Bureau of Prisons (BOP) to adopt an addendum to the federal execution protocol specifying that federal executions will be carried out using the drug pentobarbital, in place of the prior three-drug protocol. Federal prosecutors also filed the proposed protocol in federal district court in Washington, as part of a pleading in the long-running lethal-injection lawsuit filed by federal death-row prisoners. According to the release, the Attorney General also directed the BOP to set three execution dates in the five-day span between December 9 and December 13, 2019 and two additional execution dates on January 13 and January 15, 2020, the 90th anniversary of the Rev. Dr. Martin Luther King, Jr.’s birth.

In announcing these actions, Attorney General Barr said, “Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President. Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

Ruth Friedman, Director of the Federal Capital Habeas Project, called the notion that “the federal death penalty is ‘the gold standard’ of capital punishment systems” a “pervasive myth. Rather than being applied “only to the worst offenders for a narrow class of especially heinous crimes involving unique federal interests, with highly skilled and well-resourced lawyers on both sides,” she said the federal death penalty “is arbitrary, racially-biased, and rife with poor lawyering and junk science. Problems unique to the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review. These and other concerns, including troubling questions about the new execution protocol, are why there must be additional court review before the federal government can proceed with any execution.”