Death Penalty Information Center en-US Tue, 01 Dec 2020 18:54:00 -0500 Tue, 01 Dec 2020 19:03:23 -0500 Florida Supreme Court Limits Retroactive Scope of Its Ruling Permitting Death Sentences After Non-Unanimous Jury Votes Tue, 01 Dec 2020 18:54:00 -0500 Death Penalty Information Center In two long-awaited decisions that will alter the landscape of Florida’s death row, the Florida Supreme Court has limited the reach of a landmark ruling that overturned the state’s constitutional prohibition against death sentences imposed after a non-unanimous jury vote for death. The court’s January 2020 decision in State v. Poole had raised the specter that the court might rescind orders that had overturned the death sentences of more than 100 Florida death-row prisoners and granted them new sentencing trials.

However, on November 25, the court decided the cases of two defendants sentenced to death by non-unanimous juries who had been awaiting resentencing under the court’s 2016 decision, Hurst v. State. In those cases, the court unanimously rebuffed state prosecutors’ efforts to reinstate the death sentences of Bessman Okafor and Michael James Jackson without affording them the capital resentencing hearings previously ordered by the court.

In January 2020, after state trial and appellate courts had overturned the death sentences of numerous death-row prisoners, the Florida Supreme Court receded from its decision in Hurst and reinstated Mark Anthony Poole’s non-unanimous death sentence. The court subsequently applied that change in the law to other cases in which prosecutors had appealed lower court decisions that had relied on Hurst in granting death-row prisoners new sentencing trials. Prosecutors across the state then attempted to cancel the penalty-phase trials and reinstate the death sentences of prisoners who had been granted relief under Hurst but had not yet completed the resentencing process.

Rejecting the prosecutors’ position, the court stated that once an order vacating a death sentence has become final, “neither we nor the trial court can lawfully reinstate that sentence.”

Department of Justice Issues Lame-Duck Regulations to Broaden the Range of Available Federal Execution Methods Mon, 30 Nov 2020 13:56:00 -0500 Death Penalty Information Center The range of methods available to the federal government to carry out executions could be expanded under a new Department of Justice regulation published on November 27, 2020.

The regulation, one of numerous last-minute changes in federal practices adopted in the lame-duck period of the Trump Administration, permits the federal government to perform executions using any form of lethal injection “or by any other manner prescribed by the law of the state in which the sentence was imposed or which has been designated by a court” in accordance with federal death penalty statutes. The three-dozen new federal regulations encumber the incoming Biden administrations with policy changes affecting such areas as nuclear proliferation, international trade, immigration, worker safety, pollution, and oil drilling in the Arctic.

The new rule provides the Federal Bureau of Prisons with flexibility in carrying out executions by lethal injection by broadening the set of available lethal-injection protocols. In theory, it could allow the federal government to conduct executions by electrocution, lethal gas, or firing squad, though the use of any of those methods without the consent of the death-row prisoner would be highly unlikely as a practical matter. The rule does not expand federal power regarding methods of execution, but formalizes through regulation the holding of an April 2020 federal appeals court decision requiring the federal government to follow "those execution procedures enacted or promulgated by states as part of their binding law."

The rule goes into effect 30 days after publication, rather than the customary 60 days, meaning it could apply to the three federal executions currently scheduled for January 2021, but not to the two scheduled for December 10 and 11, 2020. Announcements for the five pending federal executions specified lethal injection as the method of execution for four of the prisoners but did not specify the intended method for the scheduled January 15, 2021 execution of Dustin Higgs. Higgs was sentenced to death for an offense committed in Maryland, which does not have the death penalty.

The new execution procedures will likely be rendered moot under the administration of President-elect Joe Biden, who said during the campaign that he opposes capital punishment and will work to end the federal death penalty. A transition team spokesperson reiterated the President-elect’s opposition to the death penalty.

New DPIC Podcast Discusses ‘Racist Roots’ and ‘Enduring Injustice’ of U.S. Death Penalty Wed, 25 Nov 2020 12:29:00 -0500 Death Penalty Information Center In the November 2020 episode of Discussions with DPIC, Gretchen Engel (pictured, left), Executive Director of North Carolina’s Center for Death Penalty Litigation (CDPL), joins Ngozi Ndulue (pictured, below), Senior Director of Research and Special Projects at DPIC, for a discussion of their organizations’ recent reports on race and the death penalty. This fall, DPIC released Enduring Injustice: The Persistence of Racial Discrimination in the U.S. Death Penalty. Less than a month later, CDPL released its own report, Racist Roots: Origins of North Carolina’s Death Penalty. Though the styles of the two reports are very different, both address the historical ties between the death penalty and white supremacy, slavery, lynchings, and Jim Crow.

Gallup Poll: Public Support for the Death Penalty Lowest in a Half-Century Tue, 24 Nov 2020 16:57:00 -0500 Death Penalty Information Center Public support for the death penalty is at its lowest level in a half-century, with opposition higher than any time since 1966, according to the 2020 annual Gallup poll on Americans’ attitudes about capital punishment.

Fifty-five percent of respondents to a national survey conducted between September 30 and October 15, 2020 told Gallup that they were “in favor of the death penalty for a person convicted of murder,” down one percentage point from the levels reported in 2018 and 2019. The figure tied with 2017 for the lowest support for capital punishment since 50% of Americans told Gallup in March 1972 that they were in favor of the death penalty, just months before the U.S. Supreme Court struck down existing death penalty statutes in Furman v. Georgia.

Forty-three percent of respondents told Gallup that they were opposed to the death penalty as a punishment for murder, the most since 47% of Americans expressed opposition to capital punishment in the May 1966 Gallup survey. The number was one percentage point higher than the level of opposition reported in 2019 and two percentage points higher than in 2017 and 2018.

The results followed the continuing pattern of declining death-penalty support found in the organization’s polling. In May 2020, a record-low 54% of Americans said they believed the death penalty is “morally acceptable,” and in October 2018, 49% of Americans — also a new low — said they believed the death penalty was “applied fairly.” The 2019 national survey found that a record 60% of Americans favored life imprisonment over the death penalty, which Gallup called “a dramatic shift from prior years.”

Gallup Senior Editor Jeffrey M. Jones said the pollster’s questions on death penalty trends reflect that “[m]any Americans are … conflicted on the death penalty. … [A]bout one in five Americans express theoretical support for use of the death penalty but believe life imprisonment is a better way to punish convicted murderers,” Jones said.

Trump Administration Presses Forward with Death Penalty Despite Election Defeat, Announcing 3 More Death Warrants and More Capital Prosecutions Mon, 23 Nov 2020 11:00:00 -0500 Death Penalty Information Center Despite its defeat at the polls on November 3, the Trump administration is pressing forward with efforts to conduct an historically unprecedented number of lame duck executions and in announcing new federal capital prosecutions that it will not be in position to carry out.

After the close of business on Friday, November 20, 2020, one day after carrying out the first execution during a presidential transition period in more than a century, the Department of Justice (DOJ) announced its intention to proceed with three additional executions before Joseph R. Biden is sworn in as the nation’s 46th president on January 20, 2021. DOJ set the execution of Alfred Bourgeois for December 11, 2020, the same week it is scheduled to execute Lisa Montgomery, the first woman to be executed by the federal government in more than 60 years, and Brandon Bernard, the youngest offender to be executed by the federal government in 68 years. It also scheduled the executions of Corey Johnson and Dustin Higgs for January 14 and January 15, 2021, less than one week before Biden takes office.

No lame duck president has carried out more than one execution in a presidential transition period since Grover Cleveland’s first presidency in 1888-1889. If all of the scheduled executions are carried out, they will be the most ever during a transition period between U.S. presidencies. According to the Espy file, an historical compilation of executions in the U.S. and its colonies, the five executions conducted between November 1884 and February 12, 1885 at the end of Chester A. Arthur's presidency are the most in American history.

“This has been an administration that’s been historically out of step. Not just out of step with the views of America in 2020, but out of step with federal practices by administrations, Democratic or Republican, for the course of [a] century,” Death Penalty Information Center Executive Director Robert Dunham told The Washington Post.

Federal prosecutors also filed court papers in federal court in Long Island, New York on November 20 announcing their intent to seek the death penalty against Jairo Saenz in connection with seven murders they allege were committed by a local clique said to be associated with the MS-13 gang. That action followed by one day the appointment of death-penalty counsel to represent five defendants charged with capital murder by federal prosecutors in Houston.

The new announcements may be largely symbolic, for the ultimate decision on whether the cases will proceed to trial as capital prosecutions will be made by the incoming Biden administration. In the interim period, federal taxpayers will be required to pay for six sets of capitally qualified lawyers to begin the extensive and costly preparation for a federal death penalty trial that may ultimately be non-capital.

South Carolina Seeks to Execute Richard Moore December 4, But Won’t Say How Fri, 20 Nov 2020 20:35:00 -0500 Death Penalty Information Center South Carolina has issued a death warrant to execute Richard Moore (pictured) on December 4, 2020, but, his lawyers say, the state has refused to tell him how it intends to carry it out.

In a motion to stay Moore’s execution, filed in the South Carolina Supreme Court on November 16, Moore’s lawyers say that “the South Carolina Department of Corrections (SCDC) has provided no information about how it intends to carry out the … execution,” preventing Moore from making an intelligent selection between the state’s two authorized methods of execution, lethal injection or electrocution.

Moore’s lawyers, Lindsey Vann and John Blume, said in a statement, “South Carolina is set to carry out its first execution in nearly a decade under an unprecedented veil of secrecy in the midst of a global pandemic. The South Carolina Department of Corrections refuses to release any information about how it intends to carry out the execution — from the type and source of lethal injection drugs to the status and testing of the electric chair — creating the risk of a torturous execution with no oversight.”

“Never before has SCDC denied a condemned inmate and his counsel access to the execution protocols in advance of an imminent execution,” Moore’s stay motion says. “Indeed, no other state in the country has executed someone under such an extreme veil of secrecy.”

Jurors, Judges Urge Supreme Court to End Judicial Override of Life Sentences in Death Penalty Cases Thu, 19 Nov 2020 19:36:00 -0500 Death Penalty Information Center On November 20, 2020, the U.S. Supreme Court is scheduled to conference the case of Calvin McMillan, one of thirty-two Alabama death-row prisoners whose death sentences were imposed by trial judges who overrode jury recommendations to sentence the defendants to life. McMillan has asked the Court to declare the practice unconstitutional, and two jurors who voted for life in judicial override cases and three former state court judges in states that had permitted the practice, have filed friend-of-the-court briefs supporting his efforts.

McMillan, who is Black, was 18 years old when he shot a white man in a Walmart parking lot to steal his truck. During McMillan’s trial in June 2009, the jury was presented evidence of the horrific trauma McMillan experienced as a child, including hunger so severe that he would draw pictures of sandwiches and eat the paper. The defense described for the jury a rudderless childhood of deprivation and neglect spent shuttling between more than two dozen foster homes and institutions. Weighing the mitigating evidence against the single aggravating factor in the case — that the murder was committed during the course of a robbery — the jury voted 8-4 to recommend that McMillan be sentenced to life. The trial judge overrode their verdict, claiming with no support in the record that they had grown “tired” of deliberating.

Jurors Francis Miles, who was one of seven jurors who unsuccessfully voted to spare Ulysses Sneed in his 2006 retrial, and Janet Johnson, who was one of nine jurors whose votes for life were overridden in the 1992 capital trial of Larry Padgett, told the Court that judicial override disrespects the views of individual jurors and the critical role juries play in expressing the conscience of the community in capital cases. In a November 12 commentary in the American Constitution Society Expert Forum blog, Mr. Miles said the judge’s decision to disregard the jury’s judgment “was a slap in the face that shook my confidence in the criminal justice system.” “The whole process was a waste of time and taxpayer dollars,” he said.

Three former judges from judicial override states (two from Florida and one from Alabama) also filed an amicus curiae brief in support of McMillan, writing that “executing defendants who were sentenced to death by judicial override does not comport with this country's evolving standards of decency and would allow the consequences of an unreliable system to continue despite its unanimous rejection by every state.” Judge O.H. Eaton, Jr. (pictured), one of the amicus judges, criticized judicial override decisions in a November 17 Bloomberg Law commentary, writing that they “were not guided by any meaningful standards about when or how to bypass the jury’s verdict.” Jurors “are the best deciders of the facts in criminal trials, and especially in death penalty trials,” Eaton said.

DPIC Analysis: Federal Government to Conduct First Lame-Duck Federal Executions in More Than a Century Wed, 18 Nov 2020 20:12:00 -0500 Death Penalty Information Center In a dramatic deviation from historical practices, the Trump Administration is poised to conduct the first federal executions during a lame-duck presidency in more than a century.

The Department of Justice has scheduled three federal executions during the administration’s lame-duck period: Orlando Hall on November 19, Lisa Montgomery on December 8, and Brandon Bernard on December 10. The last time the U.S. government carried out an execution between a presidential election and the inauguration of the new president for a federal crime was nearly 132 years ago, on January 25, 1889, when the outgoing administration of Grover Cleveland (pictured) executed Richard Smith, a Choctaw Indian, for a murder on tribal land in Arkansas.

A DPIC review of General Service Administration execution records found that the seven executions conducted by the Trump administration in the four-month lead-up to the 2020 presidential election is more than any other presidential administration had carried out in 78 years, dating back to the administration of Harry Truman in 1942. The soaring number of federal executions comes at the same time that states are on track to perform the fewest executions in 37 years. According to data from the Espy file—a compilation of executions in the colonies and U.S. since 1602—if all three currently scheduled executions go forward, the ten federal civilian executions will be the most in a single year since 1896, when the Cleveland administration carried out 16 executions during his second presidency.

The Trump administration lame-duck executions are “inconsistent with American norms,” DPIC Executive Director Robert Dunham told The New York Times. “If the administration followed the normal rules of civility that have been followed throughout the history in this country, it wouldn’t be an issue. The executions wouldn’t go forward,” he said.

Lawyers for Orlando Hall Seek to Stay His Execution Based Upon Systemic and Case-Specific Evidence of Racial Discrimination Tue, 17 Nov 2020 18:48:00 -0500 Death Penalty Information Center Lawyers for federal death-row prisoner Orlando Hall (pictured), who is scheduled to be executed on November 19, 2020, have filed a motion to stay his execution based upon evidence that his death sentence was a product of pervasive racial discrimination.

In pleadings filed in the U.S. District Court for the Southern District of Indiana on November 12, Hall, who is Black, argues that his conviction and death sentence are the unconstitutional product of systemic racial discrimination in the application of the federal death penalty in Texas and case-specific discrimination in the selection of jurors in his case. Defendants in federal capital trials in Texas are 16 times more likely to be sentenced to death if they are Black, his lawyers say. In addition, Hall was tried and condemned by an all-white jury that was empaneled by a prosecutor who unconstitutionally removed African-American jurors in two other cases in which Black defendants were sentenced to death. Update: Orlando Hall was executed on November 19. The district court denied Hall's stay motion on November 17. The U.S. Court of Appeals for the Seventh Circuit upheld that ruling and the U.S. Supreme Court denied Hall a stay of execution on November 19.]

Kansas Death-Row Prisoners File Suit Challenging Conditions of Confinement Mon, 16 Nov 2020 15:03:00 -0500 Death Penalty Information Center Two death-sentenced prisoners in Kansas have filed a federal lawsuit alleging that the state’s policy of automatic solitary confinement for death-row prisoners is unconstitutional. The two prisoners, Sidney Gleason and Scott Cheever, have been held in isolation for 14 and 12 years, respectively. Seven of the ten people on Kansas’ death row have been kept in solitary confinement for more than ten years.

The prisoners’ lawsuit asserts that the practice of incarcerating all death-row prisoners in automatic, indefinite solitary confinement “is extreme, debilitating, and inhumane, violates contemporary standards of decency, and poses an unreasonable risk of serious harm to the health and safety of Plaintiffs.” The suit alleges that prisoners are denied “meaningful human contact for years on end.”

The lawsuit describes the conditions on death row, saying that prisoners are confined in cells “roughly the size of a typical spot in a parking lot” for 22 to 24 hours a day. Prisoners are allowed one hour of exercise, alone in a small cage, four or five days a week. These exercise sessions, they say, are sometimes scheduled in the middle of the night, “thus eliminating any chance of seeing daylight.” In addition, prisoners are “allowed no opportunities to participate in congregate religious activity, educational or self-improvement programs, or any other type of prison programming, or to hold a prison job.” Under the state’s policy for housing death-row prisoners, those on death row are held in more restrictive conditions than other prisoners convicted of homicide and are isolated in solitary confinement regardless of their behavior.

Lawyers for Lisa Montgomery Contract COVID-19 During Prison Visits, Seek Stay of Execution Fri, 13 Nov 2020 21:47:00 -0500 Death Penalty Information Center Lawyers for federal death-row prisoner Lisa Montgomery filed suit in federal district court in Washington, D.C. on November 12, seeking to stay her December 8 execution because the lead counsel in her case have contracted the coronavirus.

A stay is necessary, the complaint alleges, because Montgomery’s lawyers “cannot represent her because they are seriously ill, through no fault of their own. On the contrary, they are sick because [Attorney General William] Barr recklessly scheduled Mrs. Montgomery’s execution in the middle of the Covid-19 pandemic. But for Barr’s action, counsel would not have been stricken with the disease that is ravaging the country.” Montgomery will be denied access to the courts and to the clemency process if the execution occurs as planned, the complaint asserts.

In court proceedings on Friday, November 13, U.S. District Court Judge Randolph D. Moss ordered federal prosecutors to respond over the weekend, saying prompt consideration of the matter was essential to provide the parties time to appeal whatever decision he makes. Moss scheduled argument on the complaint for Monday afternoon, November 16.

Coalition of More Than 1,000 Advocates Urge Federal Government to Halt December 8 Execution of Lisa Montgomery Thu, 12 Nov 2020 20:29:00 -0500 Death Penalty Information Center A diverse coalition of more than 1,000 advocates, including current and former prosecutors, activists fighting sex trafficking and domestic violence, and mental health organizations, have joined forces to ask President Donald Trump to halt the upcoming execution of the only woman on federal death row, Lisa Montgomery (pictured).

In a series of letters delivered to administration officials and released to the public by Montgomery’s lawyers on November 11, 2020, the advocates argue that Montgomery’s serious mental illness, brought on by a horrific history of sexual violence, physical abuse, and being sexually trafficked as a child, and exacerbated by abusive conditions of death-row confinement, make it inappropriate for the government to execute her. The letters were submitted by 43 current and former prosecutors, 800 organizations and individuals involved in efforts to combat violence against women, 100 organizations and individuals involved in anti-human trafficking efforts, 40 child advocates, 80 formerly incarcerated women, and jointly by the National Alliance on Mental Illness, Mental Health America, and the Treatment Advocacy Center.

On October 16, 2020, the Department of Justice announced that it had scheduled Montgomery’s execution for December 8. She is the ninth of ten federal death-row prisoners scheduled to be executed during the federal government’s unprecedented 2020 execution spree. Three executions are scheduled for November and December, which, if carried out, would be the first federal executions during a lame duck presidency in at least a century.

U.S. Death Penalty Criticized by U.N. Human Rights Council During Human Rights Review Wed, 11 Nov 2020 18:37:00 -0500 Death Penalty Information Center The United States faced harsh criticism from the world community for its continued use of capital punishment during a United Nations review of its human rights record on November 9, 2020. During the U.N. Human Rights Council Universal Periodic Review of the United States’ human rights record on November 9, 2020, countries around the world criticized the U.S. for systemic racism, police violence against civilians, separation of immigrant families and internment of immigrant children, and use of the death penalty.

The U.N. Human Rights Council reviews its member nations’ human rights practices every five years. The last review of the U.S. human rights record was in 2015, prior to the Trump administration’s praise of autocratic regimes around the world, institution of harsh policies against refugees and asylum seekers, travel bans directed at Muslim nations, use of force against peaceful demonstrators, and an unprecedented federal execution spree. The U.S. withdrew from its membership on the human rights council in 2018.

In a statement issued in response to the review, U.S. Secretary of State Mike Pompeo said “The United States has been, and always will be, a leader in transparent, rights-respecting governance. … We don’t simply discuss human rights in the United States; we cherish and defend them,” he said.

Several major United States allies urged the U.S. to halt executions or abolish the death penalty entirely. France called for the U.S. to halt federal executions, and Germany called for the U.S. to resume a federal moratorium on the death penalty, establish state moratoria, and take steps towards abolishing capital punishment nationally. Austria recommended that the U.S. “[c]ontinue efforts towards abolishing death penalty and halting executions.” Australia, the Netherlands, and Switzerland called for the U.S. to take steps towards abolishing the death penalty altogether.

Lawyers Argue 79-Year-Old Ohio Death-Row Prisoner with Dementia is Incompetent to Be Executed Tue, 10 Nov 2020 17:55:00 -0500 Death Penalty Information Center Lawyers for James Frazier (pictured), Ohio’s oldest death-row prisoner, have filed a motion to prevent his execution, arguing that he has severe vascular dementia that has rendered him unable to understand his punishment.

Legal papers filed in the Lucas County Court of Common Pleas in October 2020 assert that Frazier, now 79 years old, suffered a series of mini-strokes in 2017 that have caused serious physical, psychological, and cognitive impairments that make him incompetent to be executed. His lawyers say that he suffers from paranoia, incontinence, and confusion, believes the year is 1990, and thinks he is still awaiting trial.

“Mr. Frazier’s concept of reality is so impaired that he cannot grasp the execution’s meaning and purpose or the link between the crime and his punishment – not now and not ever,” his lawyer, Sharon Hicks, wrote.

A mental health report by Dr. Bhushan Agharkar, a psychiatrist who examined Frazier over the course of two years, stated that “Mr. Frazier is unable to rationally assist his counsel with his case because his deteriorating brain disease impairs his memory, ability to weigh and deliberate options and maintain a coherent conversation when discussing his case. He is easily confused and appears paranoid, the result of his dementia.” Frazier, the report says, “is clearly demented and lacks a rational understanding of his death sentence and why the state wants to execute him.”

In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that the constitution prohibits states from executing individuals who lack a rational understanding of the fact that they will be executed or the reasons for their execution. In 2019, in Madison v. Alabama, the Supreme Court said that decision applied to cases in which the prisoner’s cognitive impairment was a product of dementia.

Citing COVID-19, Governor Grants Reprieve to Tennessee Death-Row Prisoner Pervis Payne Mon, 09 Nov 2020 09:58:00 -0500 Death Penalty Information Center Citing the coronavirus pandemic, Tennessee Governor Bill Lee has granted a temporary reprieve to death-row prisoner Pervis Payne, halting his scheduled December 3, 2020 execution. The execution was the last scheduled by any state in 2020, assuring that states will carry out fewer executions in 2020 than in any other year since 1983.

Lee issued a temporary reprieve on November 6, 2020 that will remain in effect until April 9, 2021. A short statement released by the governor in connection with the reprieve order stated that he had granted the reprieve “due to the challenges and disruptions caused by the COVID-19 pandemic.”

Webinar Series Highlights Issues Faced by Veterans Facing the Death Penalty Fri, 06 Nov 2020 21:29:00 -0500 Death Penalty Information Center The Death Penalty Information Center is partnering with the Veteran Advocacy Project to present a six-part webinar series on Veterans and the Death Penalty. The webinars, which are co-sponsored by Advancing Real Change, Inc. and Witness to Innocence, will address a broad range of serious issues that have made veterans disproportionately vulnerable to capital prosecution. The series opens Monday, November 9, the week the nation commemorates Veterans Day 2020, with a session on Veterans on Death Row.

In November 2015, DPIC released a report, Battle Scars: Military Veterans and the Death Penalty, that highlighted the plight of veterans on America’s death row. The report, which received a Congressional Black Caucus Veterans Braintrust Award for its treatment of the issue, presented the stories of “veterans with debilitating scars from their time in combat … [who] have been judged to be the ‘worst of the worst’ criminals, deprived of mercy, sentenced to death, and executed by the government they served.” It detailed instances of defense lawyers who failed to investigate veterans’ military service and related mental health issues; prosecutors who dismissed or belittled their claims of war trauma or portrayed them as depraved trained killers; judges who discounted evidence of PTSD or brain trauma on appeal; and governors who refused to bestow mercy based on injuries sustained in serving the country.

Symposium: The Growing Impact of the Supreme Court Shadow Docket on Death Penalty Cases Thu, 05 Nov 2020 16:48:00 -0500 Death Penalty Information Center The U.S. Supreme Court’s “shadow docket” is having a growing and disproportionate impact on the Court’s resolution of controversial social issues, with some of its most profound effects being felt in death penalty cases.

The term, coined in 2015 by law professor William Baude, refers to expedited emergency rulings made by the court without full briefing and argument, typically unsigned and rendered without an opinion explaining the Court’s legal reasoning. In a seven-article online symposium published by SCOTUSblog from October 22­–October 28, 2020, legal experts dissect the institutional implications of the recent explosion of these decisions and discuss their impact on cases addressing national elections, immigration, state and local responses to the coronavirus pandemic, and the death penalty.

In her symposium article, The shadow docket is shaping the future of death penalty litigation, DPIC Senior Director of Research and Special Projects Ngozi Ndulue (pictured) explores the Court’s series of late-night unsigned decisions vacating or denying stays or injunctions that would have temporarily halted federal executions to permit lower courts to review factual or legal disputes material to the outcome of the cases. The Court’s rulings, Ndulue argues, “were exceptional and will continue to reverberate in death-penalty and non-death-penalty cases for years to come.”

Local Prosecutor Elections Foreshadow Continued Movement Away From Death Penalty Wed, 04 Nov 2020 19:53:00 -0500 Death Penalty Information Center Reform prosecutors made further inroads in the American legal system in the November 2020 general election, unseating prosecutors in several of the most prolific death-sentencing counties in the United States and capturing open seats in major Texas and Florida counties, but falling short in several other high profile races.

Election results updated on Thursday, November 5, showed that candidates pledging systemic reforms, including reduced use or abandonment of the death penalty, had won prosecutor races in Los Angeles County (CA), Travis County (Austin, TX), Orange-Osceola counties (Orlando, FL), and Franklin County (Columbus, OH). Incumbents appear to have fended off challenges in Maricopa County (Phoenix, AZ) and Hamilton County (Cincinnati, OH). The election presaged a continued reduction in capital prosecutions in the nation’s historically most prolific death-sentencing counties. Collectively, the four prosecution offices in which new progressive prosecutors prevailed had 263 prisoners on their death rows at the start of 2020, accounting for 10% of the country’s total death-row population.

Ohio Judges Acquit Capital Defendant in Alleged Arson Deaths of His Family Tue, 03 Nov 2020 17:28:00 -0500 Death Penalty Information Center A three-judge panel in Madison County, Ohio has acquitted a man prosecutors charged with capital murder for allegedly setting his car on fire to burn down his house with his wife and children inside.

The judges rejected prosecutors’ arguments that Peter Romans (pictured with his family) had poured gasoline on the driver’s side of the family’s SUV and set the car ablaze with the intent that the conflagration spread to the house to kill his wife Billi and their two children, Ami and Caleb. Prosecutors did not arrest Romans for more than a decade. At trial, they sought the death penalty, arguing that Romans had killed his family because he allegedly was having an affair with another woman and needed money from the family’s life insurance because he was in financial ruin.

Romans presented expert testimony that the car fire had been caused by a faulty cruise-control deactivation switch in his Ford Expedition. At the time of the fire, Ford had issued a recall for the faulty switch because it had been implicated in spontaneous vehicle fires, some of which occurred when the engine was off. Romans’ SUV had not been repaired after the recall. Romans’ defense lawyer, Sam Shamansky, told the judges that Romans had no reason to start the fire and that he had “lost everything in the world that mattered to him the most.”

The October 29, 2020 not-guilty verdict ended the criminal portion of a 12-year saga since the April 6, 2008 fire in which the Romans case was handed back and forth between prosecutors and investigators and eventually became the subject of a cold-case story in the Columbus Dispatch. In 2009, Romans sued Ford Motor Co. and the switch distributor for negligently causing the fire, and that lawsuit was just weeks from going to trial when Romans was indicted on aggravated murder, arson, and other charges last year.

Romans was supported throughout the trial by his late wife’s sisters, his current wife, and his stepchildren. “God had this,” said one of the sisters after the “not guilty” verdicts were read.

Florida Supreme Court Abandons 50-Year-Old Proportionality Safeguard for Capital Defendants Mon, 02 Nov 2020 19:51:00 -0500 Death Penalty Information Center In a continuing diminution of procedural safeguards in capital cases, the Florida Supreme Court has ended its long-standing practice of independently reviewing death penalty cases on appeal to ensure that they are not disproportionate to sentences imposed in similar cases.

The practice, known as comparative proportionality review, was initiated by the court a half-century ago after the U.S. Supreme Court struck down all existing U.S. death penalty statutes in Furman v. Georgia because of the unconstitutionally arbitrary manner in which capital punishment was administered. Most other death penalty states enacted similar procedures as a critical appellate protection against arbitrary and discriminatory infliction of capital punishment. And in 1976, the U.S. Supreme Court upheld Florida’s death sentencing statute in Proffitt v. Florida in part because “[t]he Supreme Court of Florida reviews each death sentence to ensure that similar results are reached in similar cases.”

Although the U.S. Supreme Court held in Pulley v. Harris in 1984 that the absence of comparative proportionality review did not in itself render a capital appeal process unconstitutional, Florida and most other death penalty states continued the practice. Nonetheless, on October 30, 2020, over the strong dissent of Justice Jorge Labarga, the Florida justices ruled in Lawrence v. State that performing comparative proportionality review violates the Florida Constitution.

In dissent, Justice Labarga wrote that comparative proportionality review is “a fundamental component of this Court’s mandatory review in direct appeal cases,” and he called the court’s action “the most consequential step yet in dismantling the reasonable safeguards contained within Florida’s death penalty jurisprudence.”