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With the taking of Marion Wilson’s life, a grim milestone for a death penalty in decline


What you’ll read today

  • Spotlight: With the taking of Marion Wilson’s life, a grim milestone a death penalty in decline

  • The Appeal Podcast: Qualified immunity, a roadblock to reform

  • Supreme Court orders new trial for Curtis Flowers

  • Federal judge blocks civil ICE arrests in Massachusetts courts

  • Queens prosecutor Democratic primary next week

  • Arizona prisons reverse ban on the book ‘Chokehold’

In the Spotlight

With the taking of Marion Wilson’s life, a grim milestone for a death penalty in decline

Marion Wilson was killed by the State of Georgia last night. His last words were, “I never took a life.” It was the 1,500th execution since 1976, the year they resumed after the Supreme Court’s decision in Gregg v. Georgia.

In The Intercept yesterday, Liliana Segura reflected on Wilson’s execution, and the state of capital punishment in Georgia and nationwide. Regarding Georgia, she wrote, “With some 50 people on death row—and having carried out 73 executions since Gregg—Georgia is neither the largest nor the most active death penalty state in the country. But it has consistently exposed the ugliest truths about who we condemn to die.” In 2015 alone, the state executed “a Vietnam veteran with severe PTSD, a man diagnosed with an IQ of 70, a woman who became a theologian and mentor to scores of incarcerated women, and a man who credibly insisted until his last breath that he was innocent.”

On Twitter, Sister Helen Prejean pointed to some of the many “irreparable flaws” in the death penalty system that manifested themselves in Wilson’s case and made his execution possible. Among them: The prosecutor who tried Wilson said during the trial that he did not know whether it was Wilson or his co-defendant who had pulled the trigger in the shooting of Donovan Parks. Yet at Wilson’s sentencing, he insisted to the jury that it had been Wilson. Years later, the prosecutor admitted under oath that he believed it was Wilson’s co-defendant, Robert Butts, who had killed Parks. Both Wilson and Butts were sentenced to death and Butts was executed last year.

Nationally, Segura describes a death penalty landscape “filled with … contradictions.” Depending on which trends one looks at, it can seem on the verge of extinction or resolutely in place. Death sentences and executions are in decline. There were 60 executions in 2005 and only 25 last year. Nine states have ended capital punishment, through legislation or court rulings, including New Hampshire just this year, and four have moratoriums in place. Yet in some states, executions “are surging.” Tennessee even brought back the electric chair last year, after no executions for years. And in the White House, President Trump calls for executions for drug dealers.

As the race for the Democratic nomination for president is well underway, the candidates have been largely united in opposing the death penalty. In a set of interviews published by the New York Times this week, 20 of 21 candidates, several former prosecutors among them, expressed opposition. The only exception was Montana Governor Steve Bullock, who said he would reserve its use for the most “extreme circumstances, like terrorism.”

Joe Biden did not participate in the interview but even his longtime support for the death penalty may be under strain, at least in public pronouncements. The 1994 crime bill he authored created 60 new death penalty offenses under 41 federal capital statutes and, as Vox’s German Lopez pointed out in an analysis of the crime bill published yesterday, Biden “bragged” immediately after its passage that “the liberal wing of the Democratic Party” was now for “60 new death penalties,” “70 enhanced penalties,” “100,000 cops,” and “125,000 new state prison cells.” Yet this month, in New Hampshire, Biden congratulated the state on passing a law that abolished the death penalty, leading to speculation that he could reverse his position on the issue.

But opposition at the federal level, which accounts for 62 people on death row, compared to over 2,700 in state prisons, can only go so far in ending the death penalty. A look at two counties that are among the country’s largest contributors to death sentences is a reminder of how capital punishment at the local level, while at “generational lows”, is still stubborn.

In California, Governor Gavin Newsom announced a moratorium on executions in March. But this week, the ACLU released a report on death sentences out of Los Angeles County under District Attorney Jackie Lacey. The report looked at the 22 death sentences that have been handed down during Lacey’s tenure, since 2012. In contrast, Harris County, Texas, which once contended for the title of death penalty capital of the country, has had six death sentences imposed since 2013.Yet 59 percent of LA Countyresidents oppose capital punishment, according to a 2019 poll.

Those 22 death sentences represent a toxic brew of what Cassandra Stubbs of the ACLU described as “abysmal defense lawyering, geographic disparities, and racial bias” that “are the legacy of [LA County’s] unfair and discriminatory use of the death penalty.” Of the 22 people sentenced to death in Los Angeles, not one was white. Though only 12 percent of homicide victims in the county between 2000 and 2015 were white, 36 percent of those sentenced to death were convicted of killing at least one white victim, according to the report. Eight of the defendants were represented by lawyers who have been charged with misconduct.

In The Appeal today, Joshua Vaughn talks about Caddo Parish, Louisiana, where James Stewart succeeded District Attorney Charles Scott in 2015 after Scott’s death that year. As Vaughn writes, between 2010 and 2014, Scott, along with two of his assistants, was “principally responsible for making Caddo Parish, Louisiana, the death penalty capital of America.” Between 2006 and 2015, its rate of death sentences for homicides was eight times higher than the rest of Louisiana.

When Stewart ran for DA, it was unclear whether he would be a reformer, but he did run on a message of change. However, his handling of death penalty cases brought during Scott’s tenure has worried observers. In one case, where the jury deliberated for less than two hours before returning a death sentence, Stewart’s office has fought post-conviction motions to compel discovery, and has issued redacted documents to the defense. Prosecutors even went so far as to request financial compensation from defense attorneys for their time.

The attorney in that case told The Appeal in an email, “DA Stewart should look closely at the death sentences sought and secured by [assistant DA] Dale Cox, rather than defend them with Cox’s vigor.” He also said, “James Stewart was elected District Attorney because Caddo Parish voters rejected Dale Cox’s ‘we should kill more people’ view of justice.”

Stories From The Appeal

Illustration by Hisashi Ohkawa

The Appeal Podcast: Qualified Immunity, a Roadblock to Reform. Appeal contributors Amir H. Ali and Emily Clark of the MacArthur Justice Center discuss qualified immunity, a policy that helps public officials avoid liability for misconduct and even flagrant constitutional violations. [Adam H. Johnson]

Stories From Around the Country

Supreme Court orders new trial for Curtis Flowers: Curtis Flowers was tried six times for the deaths of four people killed in 1996. The prosecutor in all six cases was District Attorney Doug Evans of Mississippi’s Fifth Circuit Court District. Two trials resulted in hung juries. Five ended in convictions that were overturned by the state Supreme Court on the grounds of prosecutorial misconduct and Evans’s efforts to keep prospective Black jurors from being seated. The sixth trial, in 2010, ended in a conviction and a death sentence that sent Flowers to death row for more than two decades. Today, the Supreme Court, in a 7-2 decision written by Justice Brett Kavanaugh, overturned Flowers’s conviction on the grounds that Evans improperly excluded Black people from the jury during that trial as well. Kavanaugh wrote: “The state’s relentless, determined effort to rid the jury of black individuals strongly suggests that the state wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury. … We cannot ignore that history.” [Robert Barnes / Washington Post]

Federal judge blocks civil ICE arrests in Massachusetts courts: In a preliminary injunction granted Thursday, U.S. District Judge Indira Talwani blocked ICE agents from making civil arrests in state courthouses—arrests that advocates have argued discouraged immigrants from using courthouses. The injunction prevents agents “from civilly arresting parties, witnesses, and others attending Massachusetts courthouses on official business while they are going to, attending, or leaving the courthouses.’’ It is reported to be the first such ruling in the country. It came in a lawsuit brought by public defenders, immigration advocates, Suffolk County District Attorney Rachael Rollins, and Middlesex County District Attorney Marian T. Ryan. The injunction does not prevent ICE’s criminal arrests at courthouses or civil arrests of people brought to Massachusetts courthouses while in state or federal custody. [Danny McDonald / Boston Globe]

Queens prosecutor Democratic primary next week:  The Queens district attorney election has caught attention outside the New York City borough. Democratic presidential candidates Bernie Sanders and Elizabeth Warren, as well as the New York Times, are all endorsing public defender Tiffany Cabán. She faces six opponents on Tuesday in a Democratic primary that has been defined by most candidates’ commitments to shake up the legal system. The Appeal: Political Report talked to three New York journalists who have been covering the election all year about its stakes for criminal justice reform and mass incarceration. “If there is room for reform anywhere in the boroughs of New York City, it’s in Queens,” said The Appeal’s Aaron Morrison. [Daniel Nichanian / The Appeal: Political Report]

Arizona prisons reverse ban on the book ‘Chokehold’: The ACLU announced Wednesday that the Arizona Department of Corrections has reversed its ban on the book “Chokehold: Policing Black Men.” The book, by law professor and former prosecutor Paul Butler, critiques the criminal legal system and methods of control and subjugation of Black men. In a May 16 letter to the Corrections Department arguing against the ban’s constitutionality, ACLU attorney Emerson Sykes wrote: “The very people who experience extreme racial disparity in incarceration cannot be prohibited from reading a book whose purpose is to examine and educate about that disparity.” The ACLU had also asked the corrections department to conduct a broader review of its reading-material policy “to ensure continued respect for the First Amendment rights of incarcerated persons,” but it is unclear if this happened. [Maria Polletta / Arizona Republic] The May 20 edition of the Daily Appeal looked at the departmental trial of NYPD officer Daniel Pantaleo, who put Eric Garner in the chokehold that took his life, and the ban on Butler’s book, which “describes the chokehold—the mechanism of Eric Garner’s death—as a metaphor for the violence that surrounds Black men in the United States.”

Thanks for reading. We’ll see you next week.

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