Week of Four Scheduled Executions Highlights Continued Concerns With the Use of the Death Penalty

The four exe­cu­tions sched­uled for the week of November 17^th high­light cur­rent trends in exe­cu­tions and death sen­tenc­ing and the con­tin­ued use of the death penal­ty against vul­ner­a­ble pop­u­la­tions. The pris­on­ers sched­uled to be exe­cut­ed by four states have raised a num­ber of issues, includ­ing pros­e­cu­to­r­i­al mis­con­duct, inef­fec­tive assis­tance of coun­sel, dis­crim­i­na­tion against Black jurors, judi­cial over­ride of jury deci­sion­mak­ing, seri­ous men­tal ill­ness, and brain damage. 

Stephen Barbee (Texas, pic­tured top left) and Murray Hooper (Arizona pic­tured top right) are sched­uled for exe­cu­tion on November 16^th. and Richard Fairchild (Okla­homa, pic­tured bot­tom left) and Kenneth Smith (Alabama, pic­tured bot­tom right) are sched­uled to be exe­cut­ed on November 17^th. 

Although these four exe­cu­tions have been sched­uled in close prox­im­i­ty, the over­all pace for 2022 exe­cu­tions is sim­i­lar to that of recent pre-pan­dem­ic years. The cas­es of those fac­ing exe­cu­tion raise ques­tions about the abil­i­ty of the judi­cial sys­tem to cor­rect con­sti­tu­tion­al errors, the exe­cu­tions of vul­ner­a­ble defen­dants, and the impor­tance of chance and tim­ing in deter­min­ing who lives or dies. 

Stephen Barbee: On November 14, the Fifth Circuit Court of Appeals over­turned a pre­lim­i­nary injunc­tion that would have stayed Barbee’s exe­cu­tion on reli­gious free­dom grounds. In addi­tion to these issues, Barbee has argued that his con­vic­tion should be over­turned because his lawyers uncon­sti­tu­tion­al­ly con­ced­ed his guilt at tri­al against his wish­es. He also pre­sent­ed new­ly dis­cov­ered evi­dence to prove that his con­vic­tion rest­ed on false foren­sic tes­ti­mo­ny by a coro­ner who was sub­se­quent­ly sus­pend­ed from per­form­ing autop­sy exam­i­na­tions on homi­cide cas­es because of a pat­tern of errors and negligent practices. 

Murray Hooper: Hooper was con­vict­ed and sen­tenced to death in 1983 based in part on the tes­ti­mo­ny of a wit­ness who was giv­en mon­ey and favors by police, though infor­ma­tion about the mis­con­duct was hid­den until after Hooper’s tri­al. The rev­e­la­tion of gov­ern­men­tal mis­con­duct result­ed in relief for sev­er­al of Hooper’s code­fen­dants but Hooper remained on death row. Hooper also unsuc­cess­ful­ly argued that his death sen­tence should be over­turned based on the prosecution’s use of pri­or con­vic­tions that were sub­se­quent­ly over­turned for dis­crim­i­na­to­ry jury selec­tion and because his tri­al coun­sel pre­sent­ed no mit­i­gat­ing evi­dence in his sen­tenc­ing hear­ing. Hooper has assert­ed his inno­cence through­out cap­i­tal pro­ceed­ings, but courts have denied his chal­lenges to incon­sis­tent cross-racial eye­wit­ness iden­ti­fi­ca­tion and have denied him DNA and fin­ger­print test­ing of items found at the crime scene. 

Richard Fairchild: Fairchild’s attor­neys argued that he was rep­re­sent­ed at tri­al by incom­pe­tent coun­sel who nev­er pre­sent­ed evi­dence of Fairchild’s severe child­hood abuse and of his repeat­ed trau­mat­ic brain injuries. Fairchild’s tri­al attor­ney, John Albert, was even­tu­al­ly sus­pend­ed from the prac­tice of law for sub­stance abuse, and two of the cap­i­tal defen­dants he rep­re­sent­ed were grant­ed relief because of his incom­pe­tence. Fairchild was denied post-con­vic­tion relief and clemen­cy despite expert state­ments about the debil­i­tat­ing effects of his seri­ous men­tal ill­ness and organ­ic brain damage. 

Kenneth Smith: Smith’s case was ini­tial­ly over­turned because the pros­e­cu­tor struck Black jurors because of their race. He was retried and resen­tenced to death in 1996 when his tri­al judge over­rode the jury’s near-unan­i­mous rec­om­men­da­tion for a life sen­tence. At the time, Alabama was one of only three states to per­mit judges to over­ride a jury’s vote for life and impose a death sen­tence. By the time the Alabama leg­is­la­ture repealed that por­tion of its death penal­ty statute in 2017, no oth­er state per­mit­ted the prac­tice. ​“If Smith’s tri­al had occurred today, he would not be eli­gi­ble for exe­cu­tion,” a fed­er­al appeals court wrote in 2021. 

This is not the first time in recent years that sev­er­al exe­cu­tions have been sched­uled for a sin­gle week. In 2020, sev­en exe­cu­tion dates were sched­uled by three states and the fed­er­al gov­ern­ment for the week of January 13^th. Several of the sched­uled exe­cu­tion dates were stayed because of lit­i­ga­tion and exe­cu­tion pro­to­col issues, one per­son was exe­cut­ed, and one person’s sen­tence was com­mut­ed to life with­out parole. There were six exe­cu­tions sched­uled in one week in December 2019, with two states car­ry­ing out exe­cu­tions; and six sched­uled in a week in October 2017, with one car­ried out. In 2017, four peo­ple were exe­cut­ed between April 20 and 27 dur­ing Arkansas’ execution spree.