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Capital Punishment in the United States: Explained

Capital Punishment in the United States: Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines — like bail, civil asset forfeiture, or the Brady doctrine — so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current.

To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute eight men over eleven days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. [Jessica Brand / Slate] Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim — two of those lawyers tried to withdraw from his case, one was drunk in court, one surrendered his law license because of a mental illness. [Elizabeth Vartkessian / Marshall Project] Kenneth Williams, the last man executed in Arkansas, also might have had an intellectual disability, but bad lawyering meant no one ever considered it. [Mark Berman / Washington Post] Arkansas also tried to kill Jack Greene this November. Greene regularly stuffs his ears and nose with toilet paper and thinks his lawyers are conspiring to destroy his “vital functioning organs.” He has asked the state to sever his head after his execution. [Jessica Brand / In Justice Today] Just two days before his scheduled execution, the Arkansas Supreme Court stayed the execution so lawyers could litigate his competency. [Jacob Rosenberg / Arkansas Times]

In July of this year, Ohio executed Ronald Phillips, who was 19 when he committed the crime that landed him on death row. According to Ronald’s attorneys, his father began anally raping when he was just four years old, and a cousin raped him when he was seven. The family home was covered in dog feces. He also was likely intellectually disabled. Again, because of bad trial lawyering, no jury ever learned of this evidence. [Fair Punishment Project / Prisoners on Ohio’s Execution List]

Hours before Marcellus Williams’s scheduled execution on August 22, Missouri Governor Eric Greitens stayed his execution, worried Williams might be innocent after testing showed that DNA found on a knife didn’t match Williams’s DNA profile. Over the objections of both Saint Louis County Prosecutor Bob Mcculloch and the Attorney General, the Governor appointed a board to examine the case. [Mark Berman and Wesley Lowery/Washington Post]

America’s use of the death penalty is declining in rapid fashion. But even with fewer cases, courts are not getting better at ensuring that only the most culpable are sentenced to death, and the system is deeply broken. Below, we explore the state of the death penalty in America today.

1 The Use of the Death Penalty Is Declining.

New death sentences have plummeted. In 2016, juries meted out only 30 new death sentences — the lowest number since capital punishment’s resurrection in 1972. [Mark Berman / Washington Post] In 1996, there were 315; in 2006, there were 125; and in 2016, there were 31. [Death Penalty Information Center] In Virginia, there have been no new death sentences in five years. [Frank Green / Richmond Times-DispatchIn Texas, there were eleven new death sentences in 2014, but only 2 in 2015, and 4 in 2016. In Georgia, there have only been three new death sentences in the last five years. [Laurence Tribe / Washington Post]

This trend of overall capital punishment decline has stayed the path in 2017, in which there were 39 new death sentences (the second lowest number since 1972). The data behind that number is also telling: responsibility for new death sentences continued to lie within a handful of outlier jurisdictions, with 31% of the sentences coming from 3 counties: Riverside, CA; Clark, NV; and Maricopa, AZ. Further, for the first time since 1974, there were no death sentences in 2017 in Harris County, TX. [Death Penalty Information Center] As 2017 draws to a close, Harris County’s new head prosecutor, Kim Ogg, appears to have kept her promise to pursue the death penalty in only the most extreme cases, emphasizing changing attitudes towards the death penalty and the importance of reframing the issues to ensure the focus is not on “scalps on the wall.” However, she acknowledges that she cannot receive all the credit, attributing the record year to, among other factors, better educated and more diverse jury pools [Phil McCausland / NBC News] Ogg cites as the reasons for her new approach, “The life without parole option, the immense cost in a time of limited resources and the human toll of waiting decades for final imposition of that sentence.” [Mike Tolson / Houston Chronicle] As death penalty support drops among the public and they in turn elect district attorneys who will focus resources elsewhere, the usage of capital punishment will likely continue to slow. In an interview, Frank Baumgartner, who has recently co-authored a book analyzing capital punishment statistics, acknowledges district attorneys’ death penalty choices as the “key driver in the system” and points to this as the deciding factor in explaining Harris County’s past status as the nation’s death penalty capital, given the lack of other explanations: Houstonians’ support for capital punishment is actually lower than in the rest of Texas, and the crime rate in Harris County is not unusually high. [Keri Blakinger / Houston Chronicle]

Courtesy of the Death Penalty Information Center

2 Juries are rejecting prosecutor’s requests to sentence people to death.

Prosecutors had not sought a death sentence in Dallas, a traditional death penalty stronghold, since 2015. But this year, they tried and failed twice. Jurors in the Justin Smith case indicated they were deadlocked on the penalty decision, and Smith reached a plea agreement with the prosecutor sentencing him to life in prison without parole. [Tasha Tsiaperas / Dallas Morning News] A month later, a jury declined to sentence Erbie Bowser to death. A former military veteran and special-education teacher, the government accused him of killing his girlfriend, her daughter, his estranged wife, and her daughter. The defense argued that he was seriously mentally ill and suffered from Chronic Traumatic Encephalopathy (CTE). [Jessica Pishko / Slate] After eight hours of deliberations, the jury signaled it was hopelessly deadlocked and he received a life verdict. [Tasha Tsiaperas / Dallas Morning News]

In the notorious Aurora-movie shooting case, Colorado prosecutors sought the death penalty against James Holmes, accusing him of shooting twelve people during a screening of “The Dark Knight Rises.” After a 65-day trial, the jury, after deliberating for just seven hours, deadlocked and Holmes received a life sentence. The defense had argued Holmes suffered from a severe and debilitating mental illness. [Deborah Hastings / New York Daily News] Following the judge’s deadlock and subsequent mandatory life sentence, the judge addressed criticism about the waste of time and money involved in a capital trial that yielded the same result as if the state had accepted a guilty plea. [Ann O’Neill / CNN]

In Wake County, North Carolina, home of Raleigh, juries have declined to sentence a defendant to death in eight out of eight cases over the last decade. After the last life sentence, the elected prosecutor stated: “At some point, we have to step back and say, ‘Has the community sent us a message on that?’” [Brandon Garrett / Slate] North Carolina overall is rejecting the death penalty: the state sentenced no one to death in 2017, making it the 3rd year since 2012 that the state had no death sentences. Only a single person has been sent to the state’s death row in the past three and a half years, and most of the state’s prosecutors are no longer seeking the death penalty. The ones that are, are failing: juries failed to impose death sentences in all 4 trials where North Carolina prosecutors sought the penalty in 2017. In 3 of those trials, juries chose LWOP, and in a 4th, they convicted of a lesser crime. [Gretchen M. Engel / Herald-Sun]

This decline in death sentences is the most revealing metric about society’s current tolerance for the death penalty. When asked to make real life of death decisions about a real person in a real case, prosecutors increasingly don’t seek and jurors don’t return death sentences. [Robert Smith / ACS Blog]

Executions have plummeted. In 1999, the United States executed 98 people — the most ever executed in this country. With few exceptions, that number has steadily declined, with 35 executions in 2014, 28 in 2015, 20 in 2016, and 23 in 2017. [Death Penalty Information Center] The 23 executions in 2017 were the second fewest since 1991. Further, courts stepped in and granted stays in 58 of the 81 executions scheduled for 2017 (71.6%), demonstrating continued concern about the integrity of death sentences and executions. [Death Penalty Information Center]

31 states, the District of Columbia, the federal government, and the military have turned away from executing people. 23 states and D.C. have either abolished the death penalty or seen their governors impose moratoriums. 4 more jurisdictions (New Hampshire, Kansas, Wyoming and the military) have executed 1 or fewer people in the last 50 years, and 6 other jurisdictions (the federal government, Idaho, Kentucky, Montana, Nebraska, and South Dakota) each executed 3 people in the past half-century.

Governors are halting it. Governors in Oregon, Pennsylvania, Washington, and Colorado have vowed not to allow an execution on their respective watches. [DPIC]

  • In 2013, Colorado Governor John Hickenlooper granted a temporary reprieve to one of Colorado’s three death row inmates — Nathan Dunlap. Hickenlooper called Colorado’s system of capital punishment “imperfect and inherently inequitable” and called it “highly unlikely” that he would reconsider the death penalty for Dunlap. In a published order, he wrote that “[i]t is a legitimate question whether we as a state should be taking lives.” [Karen Auge / Denver Post] Hickenlooper also noted that, in Dunlap’s case, 3 jurors later said they might not have supported the death penalty if they knew Dunlap was bipolar. [Kirk Mitchell and John Frank / Denver Post]
  • Oregon Governor Kate Brown announced in 2016 she would continue the death penalty moratorium imposed by her predecessor due to “serious concerns” about the “constitutionality and workability” of Oregon’s death penalty statute. [Tony Hernandez / Oregon Live]

Prosecutors are declining to use the death penalty. Out of the 3,143 counties in the U.S., only 16 sentenced five or more people to death between 2010 and 2015. Two percent of counties nationwide now account for the majority of inmates on states’ death rows. [Emily Bazelon / New York Times MagazineSee also The Fair Punishment Project released a detailed look at the outlier counties pursuing death. [Fair Punishment Project / Too Broken To Fix Part I; Too Broken to Fix Part II] Dissenting from the denial of certiorari in Tucker v. Louisiana, Justices Breyer and Ginsburg noted geography as the arbitrary factor likely behind the petitioner’s Caddo Parish, Louisiana death sentence.

  • With the November 2017 election of Democrat Larry Krasner as Philadelphia’s next D.A., the city’s criminal justice system will likely experience a sea change. Krasner, a civil rights attorney, has promised not to seek the death penalty. [Alan Feuer / New York Times] This is an extraordinary shift — Lynn Abraham, long-time Philly D.A., was labeled one of America’s deadliest prosecutors. [Will Bunch / Philadelphia Inquirer] Similarly, in Denver, Colorado, District Attorney Beth McCann promised that she will not seek the death penalty. [Kyle Clark / NBC 9 News Colorado]
  • In Harris County, Texas — traditionally the nation’s death penalty capital — there have been no new death sentences since Kim Ogg took office in January 2017. Moreover, Ogg has agreed to life-saving plea deals in at least two important cases, Buck v. Davis and now Moore v. Texas. Ogg found Buck’s case on her desk after the U.S. Supreme Court ruled that he did not get a fair trial because a defense expert testified that black men like Buck tended to be dangerous. [Dianna Wray / Houston Press] Moore’s case landed on Ogg’s desk after the U.S. Supreme Court found the test Texas used for intellectual disability — modeled after Lenny in “Of Mice and Men” — was unconstitutional. [Keri Blakinger / Houston Chronicle]
  • In Orlando, Florida, 9th Judicial Circuit State Attorney Aramis Ayala announced in March 2017 that her office would no longer seek the death penalty. Governor Rick Scott immediately removed all 29 cases from her supervision, placing them with 5th Judicial Circuit State Attorney Brad King, “an outspoken proponent of the death penalty.” [Dara Kam / News Service of Florida] After losing a fight in the Florida Supreme Court over the dissent of two justices, Ayala formed a 7-attorney panel to review murder cases for capital charging decisions and announced in October 2017 that it will pursue death against a woman accused of committing a murder in April. [Gal Tziperman Lotan / Orlando Sentinel]

3 Public Support for the Death Penalty Is Declining.

Recent polling has mirrored the decline in the death penalty’s use, with support among Americans dropping dramatically. It is at its lowest in 45 years, with just 55% of Americans voicing support in the latest Gallup poll. [Jeffrey M. Jones / Gallup]

Even among Republican politicians, support for the death penalty has significantly decreased over the past seven years. In 2013, Republican lawmakers sponsoring death penalty repeal bills doubled; the figure rose to 40 sponsors by 2016. [Keri Blakinger / Houston Chronicle]

In California, voters narrowly passedProposition 66 to speed up the state’s use of the death penalty, with 51.13% voting in favor of it. But 46.85% voted to repeal the death penalty altogether (Proposition 62), suggesting that the tide may too be changing in that state. In Los Angeles, the county with the largest number of death row inmates, 52.3% voted for the repeal.

In Nebraska, the 2016 referendum in which voters opted to repeal the legislature’s death penalty abolition bill is a source of controversy. Governor Pete Ricketts is being sued by the ACLU of Nebraska, on behalf of the state’s death row inmates, for overstepping his executive office boundaries by donating $425,000 and staff members to the organization Nebraskans for the Death Penalty. [Josh Saul / Newsweek] According to the lawsuit, Ricketts provided the majority of total funding for the petition drive to get the referendum on the ballot in its first months. [Taylor Dolven / VICE]

4 The Death Penalty Is Broken.

Those who are executed are not the worst of the worst. The Supreme Court has limited the use of the death penalty to the worst of the worst — those who are the most culpable in our society. As the Supreme Court has said: “Because the death penalty is the most severe punishment … [c]apital punishment must be limited to those offenders” whose “extreme culpability makes them the most deserving of execution.” [Roper v. Simmons]

The Court has established bright line rules for groups that do not fall within that category, and therefore cannot be executed. The Insane: In Ford v. Wainwright (1986), the Court ruled that execution of the insane is cruel and unusual. The Intellectually Disabled: In Atkins v. Virginia (2002), the Court declared that the death penalty for intellectually disabled (ID) offenders is cruel and unusual. Juveniles: In 2005, the Court said the same about the death penalty for juveniles (defined as those under 18) in Roper v. Simmons. Because kids have brains that are not fully developed, particularly in the frontal lobe, they have impaired judgment that “render[s] suspect any conclusion that a juvenile falls among the worst offenders.”

5 And yet numerous cases arise where men may be intellectually disabled or insane, but are nevertheless on death row.

  • Ledell Lee and Kenneth Williams were both executed by the state of Arkansas despite unexplored intellectual disability claims. [Fair Punishment Project / Arkansas Report]
  • Arkansas came close to killing Bruce Ward, who suffered from paranoid schizophrenia and believed he would “survive the triple lethal injection and walk out of the prison to fabulous wealth and public acclaim, then go on to found an evangelical ministry that will spread God’s love through the power of his preaching.” [Ed Pilkington / The Guardian] The Arkansas Supreme Court stayed the execution over the state’s objection. [Max Brantley / Arkansas Times]
  • It also nearly succeeded in its attempt to kill Jack Greene, another severely mentally ill inmate who regularly stuffs his ears and nose with toilet paper, intentionally causes his nose to bleed, eats out of his sink and uses his toilet as his desk. [Jessica Brand / In Justice Today] The Arkansas Supreme Court granted Greene a stay of execution so lawyers could litigate competency. [AP / CBS News]

6 Other people on death row experience serious impairments that call into question their extreme culpability.

  • Many argue — in court pleadings and in the media — that serious mental illness, like intellectual disability or age, should also render people ineligible for the death sentence. Several states, including Ohio, Indiana, South Dakota, Tennessee, Texas, and Virginia, have or are considering legislation proposing such a bright line rule. [Bob Taft and Joseph E. Kernan / Washington Post] A 2014 poll showed that Americans oppose executing the mentally ill by a 2–1 margin. [DPIC]
  • And yet death row is replete with those suffering from serious mental illness, trauma, and other impairments. A study by Frank R. Baumgartner and Betsy Neil found that those executed between 2000 and 2015 suffered from serious mental illness at a far greater rate than those in the general population. And 39.7 experienced childhood abuse, compared to 1 in 10 kids in the U.S. [Frank Baumgartner and Betsy Neil / Washington Post]
  • Ohio plans to execute 26 men over the next three years. 88% of these men have some combination of significant mental impairments, disabilities, and brain injuries, trauma resulting from horrific childhood abuse, or potential intellectual disabilities. [Prisoners on Ohio’s Execution List / Fair Punishment Project]
  • David Sneed is one of the men Ohio plans to execute. He has “severe manic bipolar disorder and a schizo-affective disorder involving hallucinations and delusions.” Doctors initially found him incompetent to stand trial until they administered psychotropic drugs, after which he became a model prisoner. He also has “borderline intellectual functioning.” As a child, he suffered from physical abuse and repeated sexual abuse by his foster family, by someone at his elementary school, and by his mother’s friend. [Ohio Report / Fair Punishment Project]
  • The Supreme Court has just cleared the way for the execution of Vernon Madison in Alabama. Because of a stroke, parts of Madison’s brain “have essentially died.” He is incontinent, has slurred speech, impaired vision, and cannot walk without assistance. He has both dementia and amnesia, and does not remember the crime for which he is sentenced to die. [S.M. / The Economist]
  • The vast majority of those executed in 2017 suffered from some form of impairment. 20 of the 23 men had one or more of the following impairments: significant evidence of mental illness; evidence of brain injury, developmental brain damage, or an IQ in the intellectually disabled range; serious childhood trauma, neglect or abuse. All 8 of the men who were under 21 at the time of their capital offenses had experienced serious trauma. [Death Penalty Information Center]

Prosecutors keep putting the innocent on death row. As of October 17, 2017, 160 people have been exonerated from the nation’s death rows, and numerous executions have taken place despite strong evidence of innocence. According to one study, 1 out of every 25 people sentenced to death is innocent. [Pema Levy / Newsweek]

  • Prosecutors put Ray Krone on death row in 1992, accusing him of killing a waitress. At trial, police used bitemark testimony to convict him. Ten years later, DNA evidence exonerated Krone. [Ray Krone / HuffPo] Bitemark evidence is now a discredited field that has caused over two dozen convictions, although some prosecutors continue defending it, without any scientific support. [Radley Balko / Washington Post]
  • In 2017, prosecutors dismissed charges against Rodicrus Crawford, put on death row in 2012, accused of killing his one-year-old son. Autopsy results showed bronchopneumonia in the baby’s lungs and sepsis in the blood, but led by notorious (and now disgraced) then-prosecutor Dale Cox, the government put on testimony that Crawford suffocated his baby. Following his conviction, numerous experts showed the child died of natural causes. During a subsequent hearing, the Louisiana Supreme Court justices expressed disbelief that the state put this man on death row: “[H]ow did the state come about that this was a first-degree murder case — on circumstantial evidence with a child that an autopsy discovered to have had sepsis — and ask that this man be put to death on weak circumstances? There’s not even a motive.” [Rachel Aviv / New Yorker]
  • Executions continue to take place in the face of grave innocence concerns. Texas executed Robert Pruett in October 2017 despite no physical evidence connecting him to the crime, and despite the presence of unidentified DNA on the murder weapon that matched neither Pruett nor the victim. [Death Penalty Information Center]
  • Joe Giarratano was sent to Virginia’s death row on the basis of his inconsistent, conflicting confessions, despite a history of drug abuse and mental illness that lawyers later argued had left him incompetent to stand trial. His death sentence was commuted in 1991, 2 days before his scheduled execution, and in November 2017, he was finally granted parole after 40 years incarceration for a crime he has long claimed he did not commit. [Frank Green / Richmond Times-Dispatch]

Race plays a role in the imposition of the death penalty. In 1983, David Baldus found that defendants accused of killing white victims were 4.3 more likely to receive a death sentence than those accused of killing a black person. [Adam Liptak / New York Times] That trend remains true: A recent Pennsylvania report found that death sentences are more common when the victim is white and less common when the victim is black. [Mark Scolforo / AP]

  • Race of the defendant featured prominently in two capital punishment cases that made headlines in 2017. The Supreme Court reversed Duane Buck’s death sentence because an expert testified Buck would be dangerous because he is black. [Alex Arriaga / Texas Tribune] Georgia fought hard to execute Keith Tharpe notwithstanding a juror’s racially-slurred admission that he voted for death because Tharpe is black. The Supreme Court granted a last-minute stay of execution in the case. [Mark Berman / Washington Post]

7 And It is Largely in Chaos Because of Unconstitutional Laws.

Florida currently has 386 people on its death row, and now it must decide what to do with many of those cases after courts upended its sentencing scheme. In 2016, in Hurst v. Florida, the Supreme Court struck down Florida’s death penalty statute, which made a jury’s decision of life-or-death only a recommendation and allowed a judge to override it. [Harry Lee Anstead / Tallahassee Democrat] In October of the same year, the Florida Supreme Court found that the state’s revamped law, which did not require unanimous jury verdicts, was unconstitutional. [Bill Chappell / NPR]

That left prosecutors and courts with the task of deciding what do with about 285 cases — nearly 75% of the death row population. [Larry Hannan / Slate] But whether you get relief depends largely on a date — the unanimity jury requirement is retroactive only to 2002. [Nathalie Baptiste / Mother Jones] As a result, in October of 2017, the state executed Mark Lambrix, even though the jury in his first trial voted only 8–4 in favor of death, and then in the second 10–2. [Jason Dearen / Orlando Sentinel]

Will Alabama be next? Alabama does not require unanimous death verdicts, and it is possible that soon, the state will be in the same place as Florida. [Op-ed: Scott Martelle / Los Angeles Times] Alabama already took major action to bring its capital punishment scheme into constitutional compliance, passing a bill eliminating judicial override in 2017. [Death Penalty Information Center]

In March of 2017, the Supreme Court declared Texas’ scheme for evaluating intellectual disability unconstitutional in Moore v. Texas. That test, which was based on Steinbeck’s character Lenny in “Of Mice and Men,” lacked any basis in science and medical standards. Now, Texas must develop a new standard and reconsider any cases where courts used the improper standards. [Robert Barnes / Washington Post] Prosecutors have asked the Texas Court of Criminal Appeals (TCCA), the highest criminal court, to give Moore a life sentence, as he is intellectually disabled when evaluated according to current medical standards. [Jolie McCullough / Texas Tribune] The case has stoked public opinion hopeful that the court will agree. [Tim Shriver /] The TCCA has also vacated Carl Petetan’s death sentence and ordered the trial court to conduct a new sentencing hearing to evaluate an intellectual disability claim after Moore. [Paul Gately / KWTX]

In August of 2017, Fayette County Circuit Judge Ernesto Scorsone ruled that applying the death penalty to a defendant under 21 years of age was unconstitutional. If this takes, a huge number of cases could be affected. [Larry Hannan / In Justice Today]

8 Lethal Injection May Be Torturing People.

In execution after execution, people are awake as their lungs shut down.Most states use a three-judge cocktail to execute people. The first drug, historically an anesthetic, renders you unconscious, the second drug, pancuronium bromide, stops breath and acts as a paralytic, and the third drug, potassium chloride, stops your heart from beating. [DPIC] But lawyers and experts have argued that this is not fail-safe, and, although the Supreme Court has rejected challenges, evidence shows they are right.

Most states use midazolam for the anesthetic to put people to sleep. It is unclear if midazolam reliably causes unconsciousness; once the second drug is administered, “the prisoners will be paralyzed, unable to move a muscle, unable to indicate in any way if they are experiencing the suffocating effects of the paralytic and the searing pain of the potassium chloride.” [Op-ed: Ty Alper / Los Angeles Times]

  • Oklahoma infamously botched Clayton Lockett’s 2014 execution; he died 43 minutes after administration of a 3-drug cocktail of midazolam, bromide and potassium chloride. He raised and jerked his head, repeatedly tried to speak, groaned and writhed. [Katie Fretland / The Guardian] The state then imposed a moratorium on executions and convened a commission to investigate; in April 217, the commission recommended extending the moratorium until “significant reforms” are instituted. [Tracy Connor/NBC News]
  • In December of 2016 in Alabama, Ronald Bert Smith, Jr. struggled for breath, heaved, coughed, clenched his fist, raised his head, and opened his left eye during his execution. His lips also moved, but he could not speak. [Mark Joseph Stern / Slate]
  • In Arkansas in 2017, Marcel Williams arched his back and breathed heavily during his execution. [Jacob Rosenberg / The Guardian] Reporters witnessing Kenneth Williams’s execution described him “[c]oughing, convulsing, lurching, and jerking.” “It was clear that he was in trouble.” “It was clear that he was striving for breath.” [Liliana Segura / The Intercept]

9 States are also experimenting with new drug-combinations — and they are not faring better.

  • In Ohio, executions had been on hold since Dennis McGuire’s botched 2014 execution, using a 2-drug combination that included midazolam. That has ended, and the state is using midazolam, rocuronium bromide and potassium chloride. [Jackie Borchardt /] But during Gary Otte’s September 2017 execution, according to his lawyer, Otte appeared to be in pain after the administration of midazolam and looked like he was struggling for air. His lawyer also noted that Otte was crying. [Eric Heisig /] Ohio encountered further controversy when it had to call off its November 2017 execution of 69-year-old Alva Campbell after 30 minutes of struggling to find a vein. Campbell’s lawyers had warned that an exam failed to find veins suitable for IV insertion in arguments that Campbell was too ill to execute. [Andrew Welsh-Huggins / AP] Regardless, Ohio Attorney General Mike DeWine filed a motion in federal court 5 days later seeking the dismissal of a suit filed by death-row inmates who contend that the way the state conducts executions violates their constitutional protections. [Marty Schladen / Columbus Dispatch]
  • Nevada is trying to use a brand new drug combination: the opioid fentanyl, the sedative diazepam (better known as Valium), and a paralytic, cisatracurium, to execute Scott Dozier. But while the state had scheduled the execution for November 14, 2017, that execution is now stayed after the judge forbid the state from using the paralytic. After hearing expert testimony, the judge believed that if the other two drugs were not administered properly, the paralytic could prevent Dozier from showing signs of distress while suffocating. The state has said it will appeal. [Maurice Chammah / Marshall Project] On December 19, the judge announced she will not hear further arguments in the case, and will await Nevada Supreme Court review of her decision. [Ken Ritter / AP]

A few Justices are troubled by these botched executions — but just a few. In dissenting opinions, Supreme Court Justices have strongly condemned the torturous effects of lethal injection. Dissenting from the Supreme Court’s refusal to intervene in Alabama’s execution of Thomas Arthur earlier this year, Justice Sotomayor, joined by Justice Breyer, called midazolam-centered execution protocols “our most cruel experiment yet.” [Mark Joseph Stern / Slate] She wrote an equally powerful dissent in Glossip v. Gross, joined by Justices Ginsburg, Breyer and Kagan. [Mark Joseph Stern / Slate]

So are companies. Drug companies across the world are trying to keep states from using their product in executions; Pfizer is one famous example. [Erik Eckholm / NYTimes] Johnson & Johnson is another. [Carolyn Johnson / Washington Post]

Amidst this controversy, states are trying to keep their drugs and suppliers secret. In Arkansas in August 2017, the state paid $250 cash for 4 vials of midazolam from an unknown source, enough for 2 executions. [Taylor Dolven / VICE] Controversy also brewed after the Arkansas Department of Corrections Director revealed that one of the drugs used — potassium chloride — was “donated” to her after she drove her car to pick it up from an unnamed supplier. [Jacob Rosenberg / Arkansas Times]

10 Conditions of Confinement on Death Row Are Cruel and Unusual.

The majority of death row inmates are held in solitary confinement. Of the 2,802 state prisoners currently condemned to death, 61 percent are isolated for 20 hours or more a day. In Texas, death row inmates spend up to 23 hours a day alone in an 8 x 12-foot cell with virtually no human contact or exposure to natural light. For fourteen years in Arkansas, Bruce Ward, suffering from schizophrenia, was held every day in a 12 by 7.5 cell with a toilet and shower. Guards passed his meals in through a slot. He was permitted one hour a day in another enclosed “exercise” cell, although for a decade he refused to go there. [Ed Pilkington / The Guardian]

These conditions have devastating psychological effect. Inmates have recounted the insanity-inducing conditions they are forced to endure. The isolation and sensory deprivation leads inmates to lose their minds entirely: they suffer from delusions and hallucinations, mutilate themselves, and experience psychotic episodes in which they attempt suicide or smear the walls of their cells with their blood and excretions. The suicide rate in solitary is five to ten times higher than it is in the general prison population. [Nathaniel Penn / GQ]

Extended time on death row may amount to cruel and unusual punishment. Known as a “Lackey” claim, inmates argue that the extensive confinement in solitary on death row amounts to cruel and unusual punishment. Although the Supreme Court has rejected this claim, recently Justice Breyer has signaled a commitment to it, lodging a number of dissents from denials of certiorari. Of the inordinate delay at issue in Foster v. Florida, he wrote: “[Twenty-seven] years awaiting execution is unusual by any standard, even that of current practice in the United States, where the average executed prisoner spends between 11 and 12 years under sentence of death.” [David Savage / Los Angeles Times]

11 The Fallacy of Clemency.

Clemency is almost never granted. Some believe clemency is the “fail-safe” method to make sure we do not execute the innocent, the insane, or those who have not received a fair trial. The late Supreme Court Chief Justice William Rehnquist wrote that it was necessary because “[i]t is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” But in reality, it is almost never used, and it is sometimes not even controlled by an elected official accountable to the people.

  • In Texas, for example, the politically appointed Texas Board of Pardons and Parole must recommend parole before the governor can grant it. The board is not required to hold a hearing on the clemency petition, and during the six years where George W. Bush was governor, not a single one of the 152 people executed received one. Since 2001, the state has executed 285 people while the board has recommended clemency just four times. Idaho, Louisiana, and Nevada operate similarly. Georgia keeps its clemency proceedings secret — it’s impossible, therefore, to know why they make decisions. [Jess Stoner / The Morning News]
  • In Florida, there has not been a commutation since 1983. The state has put 95 people to death since 1979, and only 6 were commuted — in four of those, juries had voted to spare their lives but a judge overrode that decision. [Editorial Board / Orlando Sun Sentinel]

12 Is It Coming to an End?

In Hidalgo v. Arizona, a petition for certiorari currently before the Supreme Court, an Arizona inmate asked the Court to strike down the death penalty in both Arizona and across the country. The petitioner argued that under Arizona’s capital scheme, almost all first-degree murderers are eligible for the death penalty — 99 percent, in fact, showing that it is not reserved for only “the worst of the worst,” as the Constitution requires.

Attorneys also argued that evolving standards of decency have shown that the 40-year experiment with death has failed. “The evidence is in. The long experiment launched by Gregg — in whether the death penalty can be administered within constitutional bounds — has failed. It has failed both in Arizona in particular and in the Nation more broadly.” [Chris Geidner / Huffington Post]

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

I was Raped. And I Believe The Brock Turner Sentence Is a Success Story.

On the morning of June 12, 2016, a small plane circled over Stanford University’s commencement ceremony trailing a banner reading, “Protect Survivors. Not Rapists. #PerskyMustGo.”

The plane’s voyage was commissioned by feminist group UltraViolet to protest former Stanford swimmer Brock Turner’s six-month sentence handed down by Santa Clara County Superior Court Judge Aaron Persky in 2016 for sexually assaulting an unconscious woman on campus the previous year. The sentence ignited an outcry and an effort to recall Judge Persky. Over 1 million people have signed a petition to remove Judge Persky, and even members of Congress have joined the chorus. Now, Santa Clara County Assistant District Attorney Cindy Hendrickson is running to replace Judge Persky should his recall go before voters.

There have been a few voices criticizing the recall movement. Some have warned that the effort could threaten judicial independence by pushing judges to buckle under pressure from public opinion in individual cases. Others have warned that the recall could scare judges into giving harsher sentences to all defendants, which would likely disproportionately affect underprivileged and minority defendants. And others have pointed out that the recall effort creates a tension between feminist anti-rape advocacy and other progressive, anti-carceral social justice movements.

But with few exceptions, those critical of the scrutiny of Judge Persky have not defended Turner’s sentence. I will do so here. I am a rape victim engaged in a lawsuit against the Memphis Police Department for systematically failing to investigate rape cases and I believe that Judge Persky’s sentence was just.

The outrage over the supposedly lenient sentence misunderstands the consequences of Turner’s conviction, which includes lifetime registration as a sex offender, and vilifies individualized sentencing. I also believe that the energy and vitriol directed at Judge Persky should have been used instead to hold police departments accountable for properly investigating rape, which too many fail to do.

In a Washington Post op-ed, Stanford law professor Michele Dauber charged that Judge Persky “had to bend over backward to award Turner such a light sentence.” More recently, Professor Dauber has re-affirmed that criticism on her Twitter account, describing Turner’s punishment as a “minimum sentence” handed down to a “white affluent” athlete. Professor Dauber and many others have also mistaken the sentencing process as Judge Persky demonstrating “empathy for the criminal.” At Turner’s sentencing hearing, Judge Persky considered statutory aggravating and mitigating factors and sentencing criteria. These factors included Turner’s age (he was 19 at the time of the offense), lack of criminal record, intoxication, letters of support, remorsefulness, and — much lamented by Professor Dauber and other pundits — the effect the felony conviction would have on his life.

As is common practice, Judge Persky based his sentencing determination not on Turner’s athletic ability, gender, or race, but on the recommendation of his probation officers. Further, Judge Persky was authorized by the California Penal Code to depart from the statutory minimum sentence — two years, in this case — after considering Turner’s lack of criminal history and the effect of incarceration. Judge Persky determined that a prison sentence would have a “severe impact on him. And that may be true in any case. I think it’s probably more true with a youthful offender sentenced to state prison at a . . . young age.” Contrary to Dauber’s assertion that Judge Persky “had to bend over backwards” to lightly punish Turner, he tailored the sentence to best serve justice, not merely to churn out a one-size-fits-all sentence.

We should not demonize judges for handing out individualized sentences, even to Brock Turner. Instead, we should demand that judges use discretion more broadly and in favor of people from all backgrounds. And we must recall that the very worst criminal justice policy springs from outrage over individual high profile cases from Willie Horton to, more recently, Jose Ines Garcia Zarate, a homeless Mexican immigrant in San Francisco who was just acquitted in a high profile murder that Donald Trump seized upon in his 2016 campaign to support his anti-immigration platform.

Furthermore, advocates like Dauber have falsely characterized Turner’s sentence as a slap on the wrist, but his punishment also involves much more than the number of hours he was caged. Turner owes court fees and is required to pay the victim restitution. He must attend a year-long rehabilitation program for sex offenders, which includes mandatory polygraph exams for which he must waive his privilege against self-incrimination. If he violates the terms of his three-year felony probation, he faces a 14-year prison sentence. He now has a strike that can be used against him under California’s three-strikes law if he is accused of any future criminal activity. As a convicted felon, he will not be allowed to own a gun.

And far from rehabilitating offenders like Turner, prisons leave people “worse” than when they went in. At the Santa Clara County jail, where Turner served time, three corrections officers were charged with murder in the beating death of a mentally ill inmate; this attack was just part of a string of allegations of violence committed by the the jail’s corrections officers. If Turner had been sent to prison, experts say, it’s likely that he could have been released back into society with exacerbated mental health issues, trauma, and further exposure to crime that would result in higher odds — not lower — that he would commit future crimes.

The most severe part of Turner’s sentence, which anti-rape advocates largely have glossed over, is the requirement that he register as a sexual offender for the rest of his life. This means that an online sex offender registry will show his picture, his address, his convictions, and details of his probation. These lists, which contain people convicted of an ever-growing number of offenses, are so broad and oppressive that a Colorado federal court deemed them cruel and unusual punishment. They are “modern-day witch pyres” that often leadto homelessness, instability, and more time in prison.

As with Jose Ines Garcia Zarate and Willie Horton before him, political leaders seized on outrage over Turner’s sentence to justify punitiveness. The Turner case spurred a new mandatory minimum law in California removing the option of probation for people convicted of sexually assaulting a person who is intoxicated or unconscious. By imposing a three-year mandatory sentence, the law removes judicial discretion. “The bill is about more than sentencing,” said Democratic Assembly member Bill Dodd in a written statement following the bill’s passage. “It’s about supporting victims and changing the culture on our college campuses to help prevent future crimes.”

But it’s at the “front end” of the criminal justice system where most rape complaints falter. Police have often acted as hostile gatekeepers preventing complaints from ever reaching a courtroom. History shows police gatekeeping in cities like PhiladelphiaSt. LouisBaltimoreClevelandDetroitNew Orleans, and New York City. In recent years, police have regularly closed casesbefore doing any investigation, discarded rape kits (the San Jose Police Department currently has over 1,800 untested rape kits and refuses to count the rape kits collected before 2012), and have even arrested victims for false reporting. It’s not surprising that police departments solve abysmally few rapes, with some cities’ clearance rates in the single digits.

The Turner case was investigated and prosecuted to the full extent of the law. For a sexual assault case, it is a rare success. More punishment isn’t always the best or most just response. Nor does it necessarily provide justice for victims. And as long as police gatekeeping prevents rape victims from having consistent access to the criminal justice system, recalling judges and increasing sentences will yield no progress in reducing sexual assault.

Correction: This story previously indicated that Turner’s felony conviction would preclude him from voting. This is not the case under California law and the article has been updated to reflect that.

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Not in Vain: Our Failure to Curb Misconduct Undermines John Thompson’s Legacy

Not in Vain: Our Failure to Curb Misconduct Undermines John Thompson’s Legacy

For criminal justice reformers, a surprisingly positive year was stained by the loss of a legend. Early in October, John Thompson, a prominent advocate for holding prosecutors accountable for misconduct, passed away at the age of 55. Mr. Thompson spent 14 years on Louisiana’s death row for a murder he did not commit. Prosecutors had intentionally hid blood evidence that would have exonerated him in an unrelated trial for carjacking. He was convicted of that crime, then did not testify in his own defense at the murder trial for fear the earlier conviction would have been used against him. Years later, when a dogged investigator discovered this suppressed evidence — just 30 days before Mr. Thompson’s scheduled execution — both convictions began to unravel. Mr. Thompson eventually won a new trial and was acquitted in 2003, 18 years after he was first convicted.

Remarkably, the only lawyer who ever suffered any consequences for this injustice was Michael Riehlmann, who revealed that one of the prosecutors who tried Mr. Thompson had confessed on his deathbed that he intentionally suppressed evidence. (Riehlmann received a public reprimand). No one involved in Mr. Thompson’s actual prosecution was ever held accountable for this ethical and legal lapse.

Mr. Thompson later sued the Orleans Parish District Attorney’s Office for damages. His civil suit resulted in a $14 million jury verdict in his favor — $1 million for each year he spent on death row. In 2011, the Supreme Court overturned that verdict in a bitterly divided and controversial 5–4 decisionthat reached the puzzling conclusion that Mr. Thompson had not sufficiently proved a pattern of constitutional malfeasance.

In part due to John Thompson’s tireless work on behalf of victims of prosecutorial misconduct, Americans have started paying attention to the enormously powerful role that prosecutors play in our criminal justice system. That heightening awareness includes a growing recognition that prosecutorial misconduct is a serious problem. Misconduct is generally defined as breaches of constitutional and professional ethics rules, encompassing a range of behavior, including suppressing exculpatory evidence, making improper arguments during closing statements, and failing to correct a witness’s false testimony. It is distinct from bad judgment or troubling charging practicesthat are also serious concerns about prosecutorial behavior. While prosecutorial misconduct often contributes to wrongful convictions like John Thompson’s, these actions implicate more than conviction integrity; they strike at the constitutional legitimacy of the system. A recent report by the Innocence Project identified 660 judicial findings of misconduct in cases from five states between 2004 to 2008. The report is part of a growing body of research that points to the importance of making prosecutorial misconduct a significant priority for criminal justice administration.

However, once identified, the question of what to do to address prosecutorial misconduct remains a challenging one. While it seems obvious that prosecutors who engage in misconduct should face some consequences, the nature of those consequences remains elusive. This is surprising in some ways; after all, we know where the prosecutors are, we have proof of their misconduct (at least in some subset of cases), and one might even assume that enforcers of rules would be motivated to abide by them and see others in the profession reprimanded for disrespecting them. Unfortunately, prosecutorial accountability is a myth.

State bar organizations themselves have done very little to shame misbehaving prosecutors. The disciplinary bodies almost never pursue prosecutors, let alone punish them. Courts, too, have historically gone easy on prosecutors. The Supreme Court has made it effectively impossible to seek civil damages against individual prosecutors who commit misconduct and the offices that supervise them, cloaking prosecutors with absolute immunity. In criminal cases in which a defendant establishes that the prosecutor has violated his rights, courts employ doctrines that make it unusual to grant new trials or impose any other remedy. This is often because they do not want to give criminals a “windfall” or disturb convictions they think are otherwise solid.

If judges and state bar organizations have failed, it is no surprise that prosecutors themselves have done even less in terms of self-policing. While the Supreme Court once observed that truly terrible prosecutors could be criminally charged — by other prosecutors — for wrongdoing, such charges have led to imprisonment only once. Prosecutors often insist they can discipline themselves within their offices. However, there is no evidence that such internal discipline actually happens in any regular or meaningful way. If an ethics-focused prosecutor were elected to lead an office, there may be some hope for internal accountability. But, in the vast majority of offices, District Attorneys have other priorities, like securing high conviction rates and harsh sentences for violent offenders.

Why do so many of these potential avenues for holding prosecutors accountable fall short? For starters, their immense power within the criminal justice system can be intimidating. Individuals are afraid to make complaints because they don’t want to draw a district attorney’s ire. Defense attorneys often worry that raising hell will hurt their ability to negotiate favorable plea deals for their current and future clients. Even judges generally shy away from calling out prosecutors (with a few important exceptions). In fact, a great number of criminal court judges are former prosecutors, so there may be personal ties at play in addition to a strong sense of shared professional identity. And, substantial obstacles make it difficult for District Attorneys to transform office cultures that widely presume the guilt of defendants and seek to win convictions regardless of the constitutional costs: cognitive biases; the drive for professional advancement; and a reluctance to give up power.

Moreover, the sheer number of different institutions with the theoretical capacity to discipline prosecutors represents a classic diffusion of responsibility problem. Nobody takes ownership. Fingers point in every direction. Prosecutors capitalize on this diffusion, inevitably defending themselves in one forum by arguing that another forum will take care of whatever problem may exist. (Consider this summary in the National District Attorney Association’s amicus brief in a civil liability case).

In a recent law review article I wrote, published by the Lewis & Clark Law Review, I make a few practical suggestions for change. While none is a panacea, these ideas could help push forward the discussion. (Several have been raised before, and I cite to the originators in my piece). I based my suggestions on insights provided by deterrence theory — a theory that has not worked wonders in the crime control context in part because of our current justice system’s fixation on severe punishments rather than certain ones. Nonetheless, I believe these could contribute more to prosecutorial accountability.

To start, the diffusion of responsibility needs to be addressed. Of the existing modes of accountability, the only ones that have a meaningful chance of succeeding are criminal courts reviewing claims of misconduct made by defendants and professional disciplinary bodies. It would of course be wonderful if the Supreme Court overruled the lawless doctrine of absolute immunity for prosecutors, or if the new wave of progressive district attorneysembraced a transparent and rigorous system of internal discipline. But we should not construct a system around these slippery hopes.

One of the most profound insights from deterrence theory is that the shame of being punished is often more potent than the punishment itself. A page can be pulled from the current struggle against workplace harassment and everyday misogyny; that movement has revealed the transformative power of transparency and public information-sharing. Because shame matters, state disciplinary bodies should publicize prosecutorial disciplinary outcomes to lawyers and judges. Right now, they tend to bury decisions in online repositories and the back pages of monthly bar publications that sit on law office coffee tables.

Criminal courts also need to take seriously their own roles in policing misconduct. They are the first and sometimes only authorities who see the evidence. They should name names, and identify prosecutors who have broken the rules in opinions, rather than gift them the privilege of anonymity. Judges should also exercise their ethical duties to refer prosecutors who commit misconduct to the disciplinary body, something the Eleventh Circuit just recently did. And, of course, better information-sharing between the criminal courts and state disciplinary bodies could make both modes more effective.

These proposals are modest, to be sure. If someone harbors skepticism about the very institutions that have permitted or facilitated the status quo’s accountability deficit, I do not blame them (and, in fact, join them). But, as the winds of change seem to be blowing, I am confident that more people will look for solutions. It very well may be that the best solution is a new concept altogether — perhaps an independent commission — or an even more dramatic intervention that we have not yet seen. For the moment, incremental change, such as pressing courts and attorney disciplinary bodies to publicly disclose information, is more plausible, at least on a large scale. While hardly a comprehensive approach, taking such a step would move us toward honoring John Thompson’s legacy in a lasting way.

Bidish Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans. The views and opinions expressed in this commentary are Mr. Sarma’s and do not necessarily represent those of In Justice Today.

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