San Quentin State Prison is not the first place you’d expect to see San Francisco District Attorney George Gascon or any of the prosecutors who work in his office. But this is where they have quietly spent time over the last several years. In an effort to change the narrative about when a prosecutor’s case “ends,” Gascon and his line prosecutors hold regular forums at San Quentin, where they discuss with incarcerated individuals steps they are taking to rehabilitate themselves. Gascon believes that prosecutors, who exercise a great deal of discretion about charging and sentencing, should hear directly from those serving time. As he explained to NBC Bay Area, “maybe we participated in locking you up, but when you come out, we want to facilitate you coming out and not going back again.” Already, these visits have resulted in the creation of an advisory board within the District Attorney’s Office, comprised of the formerly incarcerated and prosecutors, focusing on rehabilitation and re-entry.
What George Gascon is acknowledging is not new. Criminal justice reform advocates have long recognized the need to improve the re-entry process for people leaving prisons and jails. But, traditionally, prosecutors have not viewed their roles as extending to the rehabilitation of those they helped to put away. That traditional view is rapidly changing, at least in some District Attorney offices, with the growing national consensus that locking more people up does not necessarily keep the public safer. As Preet Bharara, former United States Attorney for the Southern District of New York, noted, it is time for prosecutors to move beyond the mentality of “catching bad guys and locking them up,” and instead think in terms of effectiveness; that is, how their actions can be effective at keeping the public safer.
When using the “effectiveness” metric to hold prosecutors accountable, it becomes obvious why they should care about recidivism and about the challenges that formerly incarcerated individuals face upon release. Annually, nearly 650,000 people are released from prison, while over 11 million are released from jails. If prosecutors’ foremost responsibility is public safety, then they should be accountable for how their actions and decisions affect the ability of recently released individuals to successfully re-integrate into their communities. As Kim Ogg, District Attorney of Harris County, Texas, stated, prosecutors “hold the key to the front door of the courthouse and the back door of the jail.”
Prosecutors are beginning to come together to hammer out specific ways they should reconceive their role beyond just locking people up. In December 2016 and April 2017, the Center on the Administration of Criminal Law at NYU Law School organized a series of meetings with criminal justice leaders, including a closed-door roundtable with prosecutors and a public symposium that brought prosecutors together with re-entry experts and the formerly incarcerated. The result was a blueprint for how prosecutors can address re-entry head-on, detailed in a new report, entitledDisrupting the Cycle: Reimagining the Prosecutor’s Role in Reentry.
As detailed in Disrupting the Cycle, prosecutors can make big changes through some reforms that — though far from common in district attorneys’ offices of the past — are just plain common sense. For example, district attorney offices can encourage line prosecutors to consider creative sentencing options, such as non-custodial and/or suspended, delayed, or split sentences — rather than merely pursuing the harshest sentence available. Offices should also provide all line prosecutors with clear guidelines for responsibly exercising their discretion, and make those guidelines transparent to the public so prosecutors remain accountable.
Prosecutors should also stop unfairly punishing people who are poor — by supporting individualized bail determinations over bond schedules, and by advocating for abolition of cash bail for low- to-moderate risk defendants. This is exactly what prosecutors are doing in Harris County, Texas, for example, where District Attorney Kim Ogg has gone on record as supporting efforts to reform the County’s bail system. Ogg even filed an amicus brief in support of litigation challenging the pretrial bail policies practiced by Harris County’s misdemeanor judges.
For cases already underway, line prosecutors should be encouraged to listen to and, wherever possible, support a defendant’s preference for which prison he will be incarcerated in. These requests matter, because where an individual is incarcerated can affect his or her ability to access family support systems, as well as educational and vocational opportunities.
For cases that used to be considered “closed” — i.e. after an individual has been sentenced — prosecutors should take an expansive view of their roles to reduce re-entry barriers. They should advocate for and work to formalize procedures that ease relief from criminal records, such as expungement and sealing of records.
Finally, prosecutors must use their bully pulpit to raise awareness about the difficulties that formerly incarcerated individuals face. Just speaking out can make a big difference. In 2014, former U.S. Attorney Kenneth Polite initiated a “30–2+2” program in the Eastern District of Louisiana. The office recruited 30 local businesses to hire two formerly incarcerated people for two years. To date, 25 businesses have stepped up, including Hyatt, Shell, Harrah’s, and the U.S. Attorney’s Office itself. As the NYU report explains, efforts such as these will help remove barriers to re-entry, reduce the likelihood of recidivism, and, in the process, help to make “America’s cities and towns safer, more vibrant places to live.”
Courtney Oliva is Executive Director of the Center on the Administration of Criminal Law @nyucrimlaw. Before joining the Center, she served for several years as an Assistant United States Attorney in the District of New Jersey and as a Special Assistant Attorney General with the New York State Office of the Attorney General. In these capacities, she investigated and prosecuted a variety of federal and state crimes, including violent crime, drug offenses, and white collar theft. She graduated from Brown University and the University of Chicago Law School.
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.
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 Postop-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.”
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.
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.
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]
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 Magazine] See 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.
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 / Tribtalk.org] 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 / Cleveland.com] 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 / Cleveland.com] 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]
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]
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]