Dear Governor Brown, We Are Turning the Tide!
Posted by Margo Schulter, Guest Blogger on August 11th, 2011
On August 11, 1977, a fateful day in your life as the Governor of
California and mine as a young activist, I was a guest at the
apartment of my friend Miriam Rothschild in San Francisco, the
very epitome of a devoted volunteer to her community. We knew
each other through our involvement in the Northern California
Coalition Against the Death Penalty, and together watched on
television the drama that was unfolding at the State Capitol.
The members of the Assembly were casting their votes as to
whether or not to override your principled and courageous veto of
Senate Bill 155, a bill which, among other things, restored
capital punishment in California. The moment of truth came when
an Assembly member from the Los Angeles area announced that he
could not disregard the evident wishes of his constituents, and
cast the vote providing a 2/3 majority to enact the bill over
Today, happily, there is another bill making its way through the
legislature to uphold the ethical and human values which you so
courageously defended 34 years ago, and to do so with direct
This bill, if enacted and signed by you, will let the people of
California decide at the ballot box in 2012 whether or not to
impose permanent imprisonment or life without parole (LWOP)
as the uniform and consistent penalty for all capital offenses in
California. Under California law, LWOP prisoners are required to
perform labor and thus make restitution to the victims of crimes,
including family members of murder victims, so SB 490 actually
means "LWOP plus restitution," or LWOP+R for short.
How can we hope to abolish the death penalty in California at the
ballot box, after a list of defeats with which we are both
our State Constitution to overturn a landmark decision of the
California Supreme Court holding capital punishment to be a
"cruel or unusual punishment."
In 1978, urged to go beyond the Legislature's "weak-kneed death
penalty law" passed over your veto the previous year, voters
passed Proposition 7, vastly expanding the range of "special
circumstances" murders subject to death or LWOP.
And in 1986, your appointee Chief Justice Rose Elizabeth Bird and
two of her colleagues were denied confirmation by the voters
after a highly politicized and often acrimonious campaign largely
focused on the Court's reluctance to affirm death sentences.
Given this history, the very idea of "winning at the ballot box"
seems to call for a serious sanity check. During the 25 years
since the calamitous judicial reconfirmation election of 1986,
three trends have been percolating beneath the surface of public
opinion which now give us the momentum to turn the tide.
First, as early as 1989, Professor Craig Haney at University of
California Santa Cruz found through a scientific survey of
eligible California voters that although 79% expressed "support"
for the death penalty, 67% actually preferred the alternative of
LWOP plus labor and restitution (LWOP+R), with only 26% still
preferring the death penalty when this choice was offered. A
follow-up survey in 2009 by Professor Haney and associates showed
very similar results, with 66% "support" for the death penalty
when no alternative was offered, but again only 26% when the
alternative choice was LWOP+R.
The same trend was revealed in a poll just this April by David
Binder Research, in which 63% of Californians surveyed favored a
proposal to convert the sentences of all current Death Row
prisoners -- around 715 -- to LWOP+R. Majorities of Democrats,
Republicans, and Independents supported this measure as a way of
saving a billion dollars every five or six years at this time of
budgetary crisis in our State.
The second trend which has been percolating beneath the surface
for more than two decades is a recognition of the full cost of
the death penalty, fiscal and human, and the devastating
opportunity costs our futile machinery of legal death inflicts on
other law enforcement measures which can effectively reduce crime
and punish its perpetrators more swiftly and consistently.
As early as March 1988, only a year and half after Chief Justice
Rose Bird was forced by voters to leave the Court, Stephen
save $90 million each year by replacing the death penalty with
At that time, Magagnini estimated that at an extra cost of $90
million a year, and assuming the historical rate of about six
executions each year, taxpayers would be paying about $15 million
per execution. Two decades later, to borrow Mahatma Gandhi's
phrase, we can say this estimate was rather a "Himalayan
miscalculation" -- in the low direction!
Since 1977, California has had 13 executions at a cost placed by
federal Ninth Circuit Judge Arthur Alarcon and Loyola Law School
Professor Paula Mitchell at $4 billion. That amounts to about
$300 million dollars per execution, or 20 times what seemed to
Magagnini and others a reasonable estimate in 1988. A report by
question of costs, "And today, with California's urgent budget crisis in law
enforcement and victims' services as well as other vital areas,
we simply can't afford this kind of extravagance!"
Getting more cops and homicide investigators on the beat, solving
more "cold case" homicides and improving on the clearance rates
for murder now at only around 50% in many of our counties,
keeping services for victims adequately funded, and "connecting
the dots" to prevent some of these homicides and other violent
crimes -- these are agendas the public can understand. And SB 490
gives them the opportunity to rethink priorities in a situation
the voters didn't have before them in 1972, 1978, or 1986.
Finally, there's a third trend that's been quietly percolating
over these eventful decades: a recognition that LWOP actually
means what it says in California! Over 3700 California prisoners
have received this sentence, with only a handful released because
of the one "escape clause" we should want to keep: later it had
been discovered that they were actually innocent of the offenses
for which they had been convicted. LWOP, like the death penalty,
spells permanent incarceration and death in prison -- but allows
room for correcting the rare but not unknown miscarriage of
Today, 34 years after the fateful passage of SB 155 which you
courageously sought to avert, we are turning the tide: SB 490
points the way to victory through the ballot box. On this day, as
victory is within our sight, we might remember the words of the
public servant under you and your father:
"The day will come when all mankind will deem killing to be
immoral, whether committed by one individual or many
individuals organized into a state."
To these words we may add that many Californians ready to support
the death penalty in the abstract may nevertheless prefer, as
polls have shown for some 20 years, a more swift, reliable, and
cost-effective system of justice based on LWOP+R. Please join us
in reaching out to these citizens, who can become our partners in
victory through SB 490 and the democratic choice it offers.
TO TAKE ACTION IN SUPPORT OF SB 490: CLICK HERE.
Author of CA Death Penalty Law Has Change of Heart
Posted by Stefanie on July 21st, 2011
Los Angeles Times columnist and radio personality, Patt Morrison, interviewed Donald Heller, author of California's current death penalty statute, on July 16th about why he no longer supports capital punishment. In the interview Heller cites "the enormous toll it [takes] on people involved" including defense lawyers, judges and other players in the system, the high cost and the risk of executing the innocent.
Heller, a former prosecutor, only became vocal about his opposition to the death penalty after the execution of Thomas Thompson in 1998, a man Heller believes was innocent.
He admits, "The way I look at it, what I created can and may already have resulted
in the death of an innocent person. And that's pretty heavy."
"The thing I regret most that I cannot change -- except by what I do now -- was drafting the death penalty initiative," Heller laments.
Read the full interview with Donald Heller.
Running for Justice, Not From It!
Posted by Emily Hammagren, Guest Blogger on June 30th, 2011
I'm training to run a marathon (26.2 miles) in Walla Walla, Washington on October 16th, 2011 to raise funds for the Washington Coalition to Abolish the Death Penalty (WCADP) and increase awareness of the damage that the death penalty does to our society. While the Walla Walla run is small compared to those in big cities, the location is significant in that Walla Walla is the home of Washington's death row for men and the state's execution chamber.
Funds raised go towards WCADP's outreach and education campaigns throughout Washington state.
It's time for Washington to join the growing list of states like New York, New Jersey, New Mexico, and Illinois that have realized that they can do better than offer victims' families the false promise of haling and closure from the death penalty. This year, Washington was among a dozen states that held hearings on legislative bills to replace the death penalty with life without the possibility of parole.
I hope you will consider joining me in supporting a tremendous organization and an important mission. Please consider making a gift today.
Also, it's not too late to join me in Walla Walla to run the marathon, half marathon, 10K, or to cheer everyone on!
Sen. Leahy introduces Consular Notification Compliance Act
Posted by James Brockway on June 23rd, 2011
Senator Patrick Leahy (D-VT) has introduced an important new bill that will protect the rights of foreign nationals accused of capital crimes. The proposed legislation, titled the Consular Notification Compliance Act (CNCA), will give federal courts jurisdiction to review cases of death row inmates who were not afforded access to their country of origin’s consulate after their arrest, a right which they are guaranteed under the Vienna Convention on Consular Relations, to which the U.S. has been a signatory since 1969. The CNCA would also take steps to ensure that Court’s mandate that individuals are provided with consular access in future cases. There are currently 133 foreign nationals on death rows in the U.S., only 53 of whom received proper notification.
What might at first glance appear to be a matter of arcane bureaucratic procedure has become a pressing issue, as Texas is scheduled to execute one of the men desperately in need of protection by the CNCA at the beginning of next month. Humberto Leal Jr., a Mexican citizen, was sentenced to death for the 1994 rape and murder of 16-year-old Adria Sauceda. Mr. Leal was not informed of his right to consular assistance until well after the legal proceedings against him had begun, and was consequently shackled with an unprepared public defender who was unable to challenge the numerous flaws in the scientific evidence and inconsistent testimony that was at the core of the prosecution’s case. What makes his turn of events all the more tragic is that, according to Sandra Babcock, a Northwestern University Law Professor who is defending Mr. Leal on appeal, “this was an eminently defendable case, and I don’t think it would have been a capital case if he’d had decent trial counsel.”
While Mr. Leal’s travails have received the most public attention, he is far from alone in his predicament. In 2004, Mexico brought a complaint against Texas in the International Court of Justice, alleging the more than 50 of its citizens were awaiting execution despite never having been informed of their Vienna Convention rights. The ICJ ruled in Mexico’s favor, and ordered review of the cases in question. Then-President George W. Bush wrote a presidential memorandum urging states to comply with the decision, but Texas insisted on going its own way, arguing that neither the international court nor the U.S. President had the authority to interfere in what they characterized as a state matter. The U.S. Supreme Court ultimately agreed, issuing a ruling in Medellin v. Texas that held that the treaty was unable to compel judicial review absent further legislative action by the congress. Senator Leahy’s proposed bill would do just that.
If enacted, the CNCA would not only serve as a meaningful demonstration of the U.S.’s commitment to the rights of foreign prisoners and the larger framework of international law more generally, but would also provide immediate safety benefits to the millions of Americans living abroad. Just last year, 6,600 U.S. citizens were arrested in foreign countries, and in many instances access to our Consulate was the key to their receiving adequate legal representation. The longer we continue to flaunt our obligations under the Vienna Convention, the more likely it is that other nations will feel compelled to treat American nationals the same way.
While Senator Leahy has taken an important first step towards putting an end to injustices like those suffered by Humberto Leal, he could still be executed on July 7th before the CNCA advances. Please take a moment to tell Governor Rick Perry that the execution should not proceed.
The Death Penalty is Prohibitively Expensive
Posted by Zac Stone on June 21st, 2011
A new study released this week puts the cost of maintaining the death penalty in California higher than it has ever been estimated in the past. Ninth Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, the study's authors, calculated that California taxpayers have spent more than $4 billion since capital punishment was reinstated in 1978, and estimate the annual cost of pursuing executions to be $184 million more than pursuing life without parole.
The report, facilitated by previously unavailable records from the California Department of Corrections and Rehabilitation, details exactly where and why seeking the death penalty costs so much more than life, as in the extra $200,000 spent per capital case on jury selection, the upwards of $300,000 spent on attorneys representing each inmate on appeal, and the more than $100,000 extra it costs to incarcerate a death row inmate within more secure housing (though other states have had success in "mainstreaming" death row inmates with the general population).
Few reasonable people would argue that $184 million is not a lot of money to be spending annually on just over 700 people, death row inmates or otherwise; the San Jose Mercury News deems it "fiscal insanity," and we tend to agree. Look at it one way and California has spent $308 million to execute each of the 13 men that have faced execution here since 1978.
The study's authors offer three options for ending the current cycle, which threatens to bankrupt the state (further) if not dramatically altered. The authors contend that another $85 million annually would fund California's death penalty system efficiently, while reducing the number of death-eligible crimes would potentially save taxpayers $55 million each year. By abolishing the death penalty altogether, Alarcon and Mitchell suggest California would save one billion dollars every five or six years.
There are simple ways to invest money that will reap great rewards in security for our communities. Early childhood education has proven time and again to have long-lasting effects on at-risk families. One decades-long study coming out of Chicago last week shows kids who attended an established preschool program there completed high school at higher rates and had a 28 percent lower incarceration rate than those who did not attend the program. Long-term programs that continue into second or third grade have an even more pronounced effect, with 36 percent fewer ending up in prison. Afterschool programs have similar effects, keeping at-risk kids off the streets during violent juvenile crime prime time, and allowing their parents to remain productive members of the workforce.The programs that work most effectively at reducing crime and improving general wellbeing in our communities will have to wait for increased funding, however, until our leaders come to their senses and stop throwing more money than most of us can fathom at a system that seems, at best, designed to fail. If a $300 million execution doesn't meet Californians' threshold of "fiscal insanity," we shudder to think what does.
Finding an Executioner in India
Posted by John MacGregor, Guest Blogger on June 16th, 2011
A recent New York Times article discussed the difficulty one
Indian state is having finding a hangman for an upcoming execution. With the president rejecting a last chance
appeal for a murderer in the state of Assam, prison officials are now
being forced to find an executioner. The
only problem is that no one has answered the ad. With executions a rarity in India (the last
in the entire country of 1.2 billion people was in 2004), very few certified
hangmen can be found. Officials in Assam
eventually began looking to neighboring states for help, but continued to be
stymied. While the fate of the condemned
man is up in the air pending the search, Indian defense lawyers are raising
issues that find resonance with many of the flaws in the American system.
After a capital sentence is handed down in India, a mercy
appeal goes before the country’s president. This appeal does not have to be decided within
a set time frame. The petition for the condemned
man in Assam
sat pending on the desks of three presidents before it was finally rejected
last month. This snail’s pace has led
some defense lawyers to launch a counter intuitive argument: “The man was given capital punishment but not
14 years of imprisonment,” the condemned man’s lawyer argued. “For the last 12 years, you are virtually killing
him every day.”
“You are keeping a man with the sword of Damocles hanging over
his head,” another defense lawyer remarked. This argument contends that forcing someone to
wait years or decades for their execution amounts to cruel and unusual punishment.
Ostensibly, this argument is calling for
either the abolition of capital punishment or the streamlining of the
process. Interestingly, the American
death penalty faces many of the same problems the Indian system does.
In the United
States, inmates often wait longer than 15
years before being executed, with some inmates having waited for more than 30
years. Applying the Indian argument,
these inmates have been sentenced to death, not 30 years imprisonment and then
death. While streamlining the process
may sound appealing, other blog entries have noted the many instances where new
exculpatory evidence comes to light and exonerates condemned inmates after
years of incarceration.
The current lengthy appeals process serves a purpose – it ensures,
among other things, that the condemned inmate indeed was guilty of the crime for
which he was convicted. Doing away with this
process would dramatically increase the likelihood of an innocent person being executed.
If we agree that a lengthy appeals
process is oftentimes necessary, yet that such a wait accompanied by the uncertainty
of death amounts to cruel and unusual punishment, perhaps the only ethical
alternative is abolition.
Humberto Leal's Execution Would be a Flagrant Violation of International Law
Posted by Stefanie on June 15th, 2011
Humberto Leal Jr. is slated to be executed by the state of Texas on July 7th. His death will represent a grave miscarriage of justice as he received his sentence in clear violation of international law, which mandates that foreign nationals, like Mr. Leal, must be advised of their right to consular assistance after they have been arrested and charged.
absence of such consultation has had particularly devastating
consequences for Mr. Leal, as he received grossly inadequate
representation and could be executed for a crime that he may not have
Read the rest of this post on Care2.
Sign the petition!
Firme la petición!
Remembering Norman Redlich and David Baldus
Posted by on June 15th, 2011
This week has seen the loss of two important figures in the fight against the death penalty. On Friday, Norman Redlich, the former dean of the New York University Law School and a pioneer in the use of pro bono defense for death row inmates, passed away from complications of Parkinson's disease; he was eighty five. Mr. Redlich was joined a few days later by seventy five year old David C. Baldus, a long time professor at the University of Iowa College of Law, and the main author of a series of influential studies regarding racial disparities in the application of the death penalty.
Mr. Redlich, a graduate of Williams College and Yale Law School, joined the faculty of NYU in 1960, and held the position of dean from 1974 to 1988. Mr. Redlich demonstrated heart-felt concern for the rights of indigent defendants from the beginning of his tenure at the law school, and began providing death row inmates at New York's Sing Sing Correctional Facility with free legal representation, ultimately saving five men from the electric chair in the period between 1960 and 1963.
Mr. Redlich continued his commitment to public interest lawyering as head of the Law School, hiring renowned a capital defense attorney Anthony Amsterdam as a professor, and tasking him with creating a clinical education program for NYU students which would provide them with the skills and resources necessary for public service. Because of Dean Redlich's support, the program, while unprecedented at the time, has since been modeled by law schools nation wide, and has helped establish NYU as one of the country's premier centers for the teaching of public interest law, a position it holds to this day.
In addition to his considerable contributions to the fight against the death penalty, Mr. Redlich was a member of the Warren Commission tasked with investigating the death of President John F. Kennedy. In this capacity, Mr. Redlich took the lead in creating the "single bullet theory" which helped to confirm the case against Lee Harvey Oswald as the President's sole assassin. Mr. Redlich also served as New York's corporation counsel and provided legal representation for a number of people blacklisted for refusing to testify in front of the House Un-American Activities Committee.
Professor David Baldus was a pioneer in the use of cutting edge social science research to help make the case against capital punishment. Educated at Darmouth College, the University of Pittsburgh, and Yale Law School, Professor Baldus taught at the University of Iowa Law School from 1969 until his passing.
In 1983, Professor Baldus and his colleagues, Charles Pulaski and George Woodworth, undertook a massive study of the role of race in capital punishment, and their work's impact would reach all the way to our nation's highest court. Using data from over 2000 Georgia murder cases, their research looked into what, if any difference, race makes when it comes to capital punishment. They subjected their data to rigorous analysis, controlling for 230 different non-race variables that could have also had an effect on sentencing, and came to the conclusion that defendants charged with killing white victims were more than four times more likely to receive a death sentence than if their victim had been black. They also found that black defendants were almost two times more likely to be sentenced to death than their white counterparts, and this disparity spiked even further when the victim also happened to be white.
This study ended up being at the heart of 1978 Supreme Court case McCleskey v. Kemp in which the Justices had to determine whether the consistent bias identified by Professor Baldus' work was sufficient to render Georgia's death penalty unconstitutional. In a controversial 5-4 decision, the Court rejected McCleskey's claim, and delivered an opinion that has been described as "the Dred Scott decision of our time."
In addition to his 1983 work, Professor Baldus was the author of two books on the death penalty, Statistical Proof of Discrimination and Equal Justice and the Death Penalty. He also served as Lieutenant in the Army Security Agency during the late 1950s.
Pentobarbital Supply Now in Doubt
Posted by John MacGregor, Guest Blogger on June 13th, 2011
Lundbeck, the only pharmaceutical company that supplies pentobarbital to the United States, has said that it will take steps to ensure that its drug will no longer be used for lethal injection. Lundbeck expressed moral opposition to the use of its product in executions. In a statement, the company declared that use of the drug in lethal injection proceedings "contradicts everything we are in business to do - provide therapies that improve people's lives." This news comes after a self-initiated industry boycott of sodium thiopental left states scrambling to find a replacement drug. Pentobarbital filled this void, but questions have been raised over the constitutionality of the drug. Little research has been conducted about any possible pain condemned inmates might have to endure with this new combination of drugs; inmates are paralyzed during the proceedings and cannot, therefore, physically express pain. If Lundbeck's boycott is effective, states will have to find yet another alternative drug.
Pentobarbital has been commonly used as an animal euthanasia drug. Recently there was a row over this issue in Texas when the ACLU published a report juxtaposing the state's regulation of veterinarians and prison officials: "Veterinarians in Texas are prohibited from using the combination of drugs that the Texas Department of Criminal Justice has deemed suitable for the execution of human beings," the report finds. The paper also details the numerous medical and professional qualifications veterinarians must have before they are allowed to euthanize animals. Prison officials, however, are granted a tremendous amount of discretion and autonomy when planning and administering a lethal injection execution. The report concludes that "it is no exaggeration to say that Texas regulates the euthanasia of reptiles more strictly than the execution of human beings."
Ohio Governor Commutes Sentence of Innocent Man
Posted by James Brockway, Guest Blogger on June 9th, 2011
Yesterday, Ohio Governor John Kasich commuted the death sentence of Shawn Hawkins to life without the possibility of parole. The Governor’s decision follows last month’s unanimous recommendation for clemency by the Ohio Parole Board. Mr. Hawkins was sentenced to die for the 1989 murders of teenagers Terrence Richard and Diamond Marteen in Mount Healthy, Ohio. Mr. Hawkins has persistently and vigorously maintained his innocence.
Kasich’s commutation is his first since taking office in January, and the Republican Governor was careful to point out that his decision was not meant to relieve Hawkins of responsibility for his alleged crimes. Instead, the Governor decided that the “precise details of [Mr. Hawkins] role are frustratingly unclear to the point that Ohio shouldn't deliver the ultimate penalty in this case." Gov. Kasich went out his way to emphasize that he had no doubt that Mr. Hawkins played some “material role” in the crime, and seemed satisfied that a life sentence would be a sufficiently harsh punishment given the ambiguities surrounding the case.
While it is undoubtedly great news to hear that Mr. Hawkins life will be spared, Governor Kasich’s decision to stop short of a full pardon is troubling given that the evidence points strongly towards Mr. Hawkins’ actual innocence. Unfortunately, a combination of inadequate representation and incomplete investigation of other potential suspects has already forced Shawn Hawkins to spend half his life in prison for a crime he did not commit.
The most significant problem with the case against Shawn Hawkins concerns Henry Brown, the state’s one eyewitness to the crime. Since Mr. Hawkins’ original arrest, Mr. Brown has repeatedly altered elements of his testimony, providing police with wildly differing, and frequently contradictory, accounts of the murders. Mr. Brown was given full immunity in exchange for his agreement to testify against Mr. Hawkins, though it is looking more and more like the police made the wrong deal: a year after his original testimony, Brown committed an armed robbery eerily similar to the one that took the lives of Mr. Richard and Mr. Marteen, and is currently serving four to seven years for aggravated robbery. In taking the word of Mr. Brown, the state also willfully ignored testimony from several alibi witnesses who indicated Mr. Hawkins was with them at the time of the crime, and also chose to not follow several leads indicating there were two other men present at the crime scene.
Other oversights include the police’s ‘loss’ of all the notes they took during their interrogation of Mr. Hawkins, as well as the reliance on dubious forensic science to link one of his finger prints to the crime, even though the prosecution has no ability to prove when the print was left and Mr. Hawkins freely admits he was in the victims’ car earlier, when they were both alive.
Given all of these issues, it is fair to ask how Mr. Hawkins was convicted in the first place. The answer to that question lies with Mr. Hawkins’ trial lawyer, whose overconfidence and lack of preparation caused him to make a series of tactical errors which culminated in a death sentence for his client. These missteps included failure to investigate many of the discrepancies discussed above, making Mr. Hawkins testify in his own defense, and then aggressively antagonizing the jury during the sentencing phase of the trial because of his frustration with their guilty verdict. Shawn has been paying for these mistakes for over twenty years, and this week’s commutation must seem like rather weak compensation given the magnitude of his attorney’s negligence.
While Shawn Hawkins no longer faces a death sentence, he still has to contend with spending the rest of his life in prison despite the severe doubts surrounding his guilt. In some ways, his new sentence of life without the possibility of parole will make seeking his release more difficult, as the state will no longer be obligated to help finance his appeals, and the Governor may be less likely to grant a pardon after having already made what he views as a compromise. Mr. Hawkins is not alone in facing this problem, as last year’s commutation of the sentence of Kevin Keith proves. Like Mr. Hawkins, Mr. Keith had a strong claim of actual innocence which was met with commutation by Ohio’s then-Governor, Ted Strickland. For the past year, Mr. Keith has been struggling to secure further advances in his case, though no relief seems to be insight for the foreseeable future.
Fortunately for Mr. Hawkins, he seems to have a network of supporters who are dedicated to seeing that "Shawn is someday a free man”. As his appellate attorney, Anthony G. Covatta, said after Governor Kasich’s decision, “The struggle continues. The dream will never die." We can only hope that he is right.
A Turning Point?
Posted by John MacGregor, Guest Blogger on June 1st, 2011
In recent weeks we have been documenting the increasing
level of difficulty prisons are having procuring sodium thiopental, a drug used
in lethal injection proceedings. After
the last US supplier stopped
production of the execution drug on moral grounds, states have had to turn to
overseas providers, including pharmaceutical companies in Italy, Germany,
Taiwan, the UK, and India to provide the drug. In order to import the drug, however, many states circumvented federal
law by not declaring the shipments to the DEA. It seems that this crisis is reaching a critical point. A previous blog post detailed the DEA’s seizure
of Georgia’s stockpile of sodium thiopental after the state had illegally
imported the drug from an overseas supplier. Recently, however, the DEA has widened
the scope of its probe into these shipments, and has now seized state
stockpiles from Alabama, Kentucky, Tennessee, and South Carolina. Arizona, Arkansas, California,
Nebraska, and South Dakota have also received shipments of sodium thiopental
from overseas providers, but their stockpiles were not raided.
The revelation that these states illegally obtained their
sodium thiopental has sparked
outrage in death penalty watchdog groups. Natasha Minsker, the Death Penalty Policy Director for the ACLU of
California, commented on the implications of this news: “The DEA records demonstrate that Arizona and
other states broke the law. We cannot understand why the DEA has failed to act
but has allowed the states to keep these illegal and dangerous drugs. When state officials break the law in order to
carry out an execution, it makes a mockery of our justice system and puts us
all at risk. State and federal officials must follow and enforce the law—that’s
their duty and what the public expects and deserves.” Ms. Minsker filed a Freedom of Information Act request
with the DEA and received the documents
that suggested inconsistencies between the publicly known shipment records and the
actual supplies of the drugs.
From here, it’s hard to tell where this story might
lead. In response to the shortage of
sodium thiopental, one
state adopted a new lethal injection protocol, where inmates are executed
with a single drug that has normally been reserved for animal euthanasia. If more states follow suit and adopt a
similar procedure, there might be room for a legal challenge to this method of
execution, potentially resulting in increased delays while the Courts study
whether or not the single drug method violates the 8th Amendment’s
prohibition against cruel and unusual punishment. If this is the case, such a review might
cause another de facto moratorium similar to the one currently in effect in California.
Juries Lead Pennsylvania Away From Capital Punishment
Posted by James Brockway, Guest Blogger on June 1st, 2011
With citizens across the country taking active efforts to end capital punishment, progress is being made in Pennsylvania, though it has not come via the typical legislative jockeying and heated policy debate. Instead, the state’s jurors are quietly working to make Pennsylvania, which still has the death penalty on its books, abolitionist in practice, as they have become increasingly unwilling to hand out death sentences in capital murder cases.
As noted in a recent editorial in the Philadelphia Inquirer, juries have handed down death sentences in only 3% of roughly 2,000 eligible cases since 2007, resulting in only eight additions to death row in that time. While its population of 215 gives Pennsylvania the fourth largest death row in the country, most of that number have been awaiting execution for decades, as only three people have been executed since capital punishment’s reinstatement in 1978, and no sentences have been carried out since 1999.
While it is difficult to know how much the recent decrease in capital convictions has to do with the system’s perceived lack of credibility, it does seem to be the case that jurors are comfortable with dispensing sentences of life with out parole. Given how rarely used and slow-moving Pennsylvania’s death penalty is, it is hard to argue with this decision, as life achieves the same goals as capital punishment while sparing the enormous investment of resources that goes into what is often a decade’s long appeals process.
While juries are producing change from behind the scenes, the public debate over Pennsylvania’s death penalty has begun to pick up as well. State Senator Stewart Greenleaf has sponsored a proposal to begin a study commission that will look into the costs associated with the policy. This is a significant first step as information on Pennsylvania’s death penalty is fairly difficult to obtain, and forcing officials to come out in the open will shine a light on the system which should only galvanize further reforms. Senator Greenleaf also plans to sponsor legislation that would eliminate the 60 day time limit placed on finding new, non-DNA evidence, for post-conviction appeals, thereby allowing for prisoners with claims of actual innocence to have a fair chance to prove their claims in court, instead of having them dismissed on banal technicalities.
Amongst the more prominent supporters of these efforts is former Governor, and long time death penalty proponent, Ed Rendell, who on his last day in office challenged the legislature to either take concrete steps to make the death penalty an effective law enforcement tool, or abandon it all together. According to Governor Rendell, the interminable delays associated with the penalty eviscerate its deterrent effects, and it is unclear if such problems are even fixable.
Taken together, these developments should give us hope that Pennsylvania is beginning to look seriously at replacing the death penalty with more effective alternatives. Moreover, its juries’ increased preference for life without parole points to a promising trend of reduced capital sentencing which should make it that much easier to end the death penalty once in for all, while in the mean time preventing further bloating of already over-crowded death rows across the country.
Juries' Lack of Mental Health Knowledge Puts the Intellectually Disabled at Risk
Posted by Zac Stone on May 27th, 2011
The results of a study published last year in the Law & Psychology Review (pdf) on juror perceptions of intellectual disability should surprise no one, yet the study's implications in capital trials are grave. Mental health workers' views on intellectual disability - referred to in the study as mental retardation, a term that is losing popularity, but still medically accurate and ingrained in law - and those views of jurors differ greatly, with those in the mental health field allowing a broader definition of disability based on eight areas of functioning.
The study found that jurors, presumably a group of folks representative of the American populace (in this case they came from a suburban area in a southeastern state), vastly underestimate the functional abilities of people with intellectual disabilities, when asked to identify characteristics that might suggest mental retardation, as compared to the estimations of mental health professionals.
Though the Supreme Court's decision in Atkins v. Virginia prohibits the execution of a mentally retarded person, the court did not define mental retardation, implying that states' death penalty statutes should conform to the diagnostic criteria put forth by the American Association on Intellectual and Developmental Disabilities and the American Psychiatric Association. In practice, unfortunately, while experts in the mental health field testify and offer their opinions in court, it is not a trained professional who ultimately measures a defendant's mental abilities, but a group of strangers from the defendant's community, whom the study authors refer to as "fact-finders."
The study's authors expected jurors to somewhat accurately measure three areas of functioning - independent living, school performance, and the ability to read and write - as they relate to intellectual disability. These are three signs that most laymen identify as being indicative of intellectual disability, but as the study found, jurors don't have a great idea of how capable the intellectually disabled are of living on their own in society, they tend to rely too heavily on school performance and reading and writing ability, and they misunderstand the significance of other factors.
Jurors are also reluctant to attribute characteristics to mental retardation or intellectual disability unless they "suggest extremely severe impairment," fitting the paradigm that many Americans have built around intellectual disability in which they imagine a person wholly dependant on others to survive. For instance, jurors were willing to connect a person's history of living in state hospitals with mental retardation, but largely they did not believe that a person with an intellectual disability could live in an apartment alone with only occasional visits from a social worker, while mental health workers, with more experience around the intellectually disabled, were quick to make the connection. Jurors also saw drug use and sexual activity as indicators that a person was intellectually capable, while mental health workers allowed for more nuance in these areas, and pointed to a person's romantic involvement in relationships as a better indicator of intellectual ability.
One of the study's key findings was that jurors strongly expect the intellectually disabled to be unaware of or unable to understand the wrongfulness of their actions, and jurors were more willing to attribute criminal behavior to a defendant's disability in such cases than if the defendant expressed an understanding of the crime. Those in the mental health field know, however, that those with milder cases of intellectual disability, who tend to make up the majority of intellectually disabled capital defendants, often can understand some implications of their crime, while not fully respecting the gravity.
In death penalty trials, in which juries ultimately decide if a defendant is mentally capable of being punished by death, the repercussions of this study, assuming the results are reproducible and applicable to juries elsewhere, are not to be underestimated.
Jurors who believe the intellectually disabled must be relegated to group homes or state hospitals, or that they cannot be sexually active, consume drugs, or attend public school, will not be able to effectively enforce the law of the land, in this case the Supreme Court's Atkins decision prohibiting the execution of the intellectually disabled. While it is expected that experts in any given field will have a better understanding of that field, as mental health workers better understand intellectual disability, the average American's level of ignorance on this topic makes clear that attorneys in capital cases must better prepare jurors to make the type of decision they have been tasked with - one of life or death.
Danish Drug-Maker's Death Penalty Dilemma
Posted by James Brockway, Guest Blogger on May 17th, 2011
Danish pharmaceutical company Lundbeck Inc. is currently faced with a significant ethical, and financial, dilemma, as it is the only manufacturer of pentobarbital which sells the drug to the U.S. where it has recently been used as an execution drug. While the company officially opposes this use for the short-acting barbiturate, it maintains that it has little control over what happens to the product after it is in the hands of American wholesalers, who have demonstrated a willingness to ignore the company's wishes and sell the drug to a number of states' Departments of Corrections.
Lundbeck has attempted to take some action, calling on prisons in eleven states to not use the drug as such behavior would fly in the face of the company's mission to provide the world with life saving technologies. Sadly, these efforts have so far fallen on deaf ears, as none of these prisons have responded to Lunbeck's letters, and Virginia has recently decided to join Ohio, Oklahoma, and Texas (amongst others) in using the drug in its execution procedure.
Lundbeck finds itself in this precarious position largely because of a recent shortage of sodium thiopental, the anesthetic that had, until recently, been an ingredient in 35 of the 36 death penalty states' lethal injection cocktails. Hospira Inc., the only manufacturer of thiopental, began to run out of the drug in the summer of 2010, and recently stopped producing it altogether after Italy (where Hospira's plant is located) threatened legal action if the medication continued to be used to put people to death. Italy, like Denmark and all other EU member-states, has abolished capital punishment, and has decided to be active in opposing the punishment world wide.
While it is unclear if Denmark will take similar measures to ensure Lundbeck gets out of the execution business, some of the company's major investors are beginning to take matters into their own hands. Major Danish investment fund Unipension unloaded 5.4 million Euros worth of shares last Friday, citing the company's unwillingness to "engage in a genuine dialogue" about how they planned to prevent pentobarbital from being used in executions. ATP, Denmark's largest pension investor, is considering following suit, as it also has serious questions about the strength of Lundbeck's commitment.
London based non-profit, Reprieve, has been actively pressuring Lundbeck to act, and so far has been very disappointed with the company's efforts, most recently pointing to the corporation's failure to file brief's opposing the drug's usage in an impending Alabama execution. As Reprieve investigator Maya Foa put it, "It is hard to see why Lundbeck would not take this straightforward opportunity which could help to save a life…There is still time for Lundbeck to change their mind and take this simple step. If they continue to refuse, their company 'code of ethics' will not be worth the paper it's printed on."
While it is understandable that Lundbeck is reluctant to give up on its corner on the U.S. pentobarbital market, it is imperative that the company live up to its obligation as a maker of medicine, and does everything in its reach to ensure that its products are used only to heal. Until it does so, we should applaud the efforts of investors to hold Lundbeck accountable, as it may be the case that the company will be unwilling to make changes until its moral commitments are in alignment with its financial best interest.
Is the Death Penalty a Deterrent?
Posted by John MacGregor, Guest Blogger on May 16th, 2011
Does capital punishment work? This question has been the topic of a hot debate for years. At the core of this discussion are quantitative analysts from academia. Using complex econometric methods, these mathematicians publish studies analyzing murder and execution rates over time, and then estimate how many innocent lives are saved from the deterrent effect of each execution.
In 2007, for example, Michael Summers and Roy Adler published a story in the Wall Street Journal claiming that the deterrent effect of each execution eventually saves 74 innocent people from being murdered. The study noticed a negative correlation between murders and executions - when the number of executions increased, the number of murders decreased.
These findings heavily support the theory of deterrence. Yet a recent study has called the article's conclusion into question. Dr. Gebhard Kirchgaessne from the Swiss Institute for International Economics and Applied Economic Research is working on a research paper demonstrating how easy it can be for economists to manipulate murder and execution data in order to support any agenda: "One can find any result demanded; this simple model does not allow for robust results" (8).
To prove this point, Dr. Kirchgaessne derives somewhat comical results from the economists' equations. The results are so unreliable that the same model can be used to support both points of view. Further suggesting that manipulation of data runs rampant in deterrence economics is the fact that even when long-run data suggest a certain trend (ie that the death penalty is a deterrent), there are still sub-periods within that sample that contradict the claim.
The author suggests that this fact should bring heightened scrutiny to any paper trying to empirically prove or disprove a deterrent effect of the death penalty: "Everybody who wants to claim that this negative correlation represents a causal relation has to provide a convincing explanation for the existence of sub-periods showing the opposite (causal) relation" (7).
Dr. Kirchgaessne concludes that "a critical and cautious examination of these results leads to the conviction that we cannot draw any strong conclusions. While there is some evidence that a deterrent effect might exist, it is too fragile to be certain" (18). He adds that the various claims that each execution prevents X number of future homicides are so dubious - given the unreliability of the testing mechanism - that they should not be given any serious weight in policy discussions.
Take A Stand Against the Death Penalty
Posted by Zac Stone on May 10th, 2011
The National Library of France has introduced an interactive exhibit that allows library-goers to literally stand in the way of an execution. The video speaks for itself, so without futher ado…
Rising use of Mitigation Defense Linked to Fewer Death Sentences in Texas
Posted by John MacGregor, Guest Blogger on May 9th, 2011
Jeffrey Toobin recently published an article in the New
Yorker about the increasing movement in Texas to emphasize mitigating factors during
the sentencing phase of death penalty trials. Specifically, Toobin follows the work of the Gulf Region Advocacy Center,
an organization specializing in researching biographical mitigating evidence
for defense teams in capital cases. When
the death penalty was reinstated in the 1970s, the Supreme Court stipulated
that mandatory death sentences were unconstitutional, and insisted that a
bifurcated trial take place, where first the guilt or innocence of the
defendant is ascertained, and then the sentence is determined.
The jury has essentially unlimited discretion to weigh
virtually any mitigating factors during the sentencing phase – past criminal
history, mental illness, low IQ, combat experience, abusive upbringing,
poverty, etc. Thus, a strong mitigation
defense can literally make a life or death difference for the defendant. In his article, Toobin notes that the number
of new death sentences in Texas
has been down considerably after GRACE began its campaign. Assuming that these two events have at least
some causal relationship, the effect that this newfound emphasis on mitigation has
had on the number of death sentences in Texas
raises some serious questions about the general fairness of the death
When it declared a moratorium on the death penalty in the
1970s, the Supreme Court was primarily concerned that the death penalty was
arbitrarily and capriciously imposed. Many of the changes made to the death penalty over the years have been
designed to fix this problem. Yet even
with all these changes, highly arbitrary factors – such as geography, the disposition
of the District Attorney, and the gamble that a small sample size of 12 citizens
will actually be a representative cross-section of society – still reign
supreme when it comes to death sentences. Toobin points out in his article, for instance, that if Harris County,
Texas, were an independent state, it would trail only the rest of Texas in the number of
death sentences handed down in the country. Similarly, in California,
85% of all death sentences come from a mere 17% of the state’s counties.
This arbitrariness also extends to the realm of mitigation
defense. Consider, for instance, the
case of Manuel
Babbitt. In 1980, Babbitt killed an
elderly Sacramento, California, resident in her home. Soon thereafter Babbitt’s brother turned him
into police after finding him in possession of some of the victim’s property. Babbitt was a Vietnam War combat veteran who
fought in the 77-day siege of Khe Sahn, oftentimes referred to as the most
savage battle in the war. Babbitt had only
a 7th grade education and had to get help from a recruiter to pass
the entrance test into the Army. During
Khe Sahn, Babbitt was wounded in the skull by pieces of shrapnel, an injury for
which he was later awarded the Purple Heart.
After serving a second combat tour in Vietnam, Babbitt returned home and began a long
spree of escalating criminal activity that eventually led to his detention at
State Hospital in Massachusetts
– a hospital for the criminally insane, where Babbitt was declared mentally
ill. During his stay at the hospital,
Babbitt attempted suicide three times. After his release, he degenerated further until his eventual murder
conviction in 1980 and execution in 1999. Babbitt did not have access to a mitigation specialist similar to
GRACE. Instead, Babbitt had an alcoholic
public defender who would drink in court. Had Babbitt’s defense team discussed his history of post traumatic
stress disorder and mental illness, perhaps the jury would have been inclined
spare him death.
While the increasing use of the mitigation defense had
resulted in fewer death sentences, it still leaves some unsettling questions
about the arbitrariness of capital punishment in the United States. If it is assumed that at least some condemned
inmates – Manuel Babbitt, for instance – would have been spared death had they
been provided with a robust mitigation defense, then we can add one more
variable to the legal lottery that decides who lives and who dies. When geography and the personal views of the local
district attorney are life and death factors for defendants, and if taking 30
minutes to discuss one’s biography is enough to save oneself from death, as is
strongly suggested by the correlation discussed in Toobin’s article, then
capital punishment is still being arbitrarily and capriciously imposed in the
Help End Connecticut's Death Penalty!
Posted by James Brockway, Guest Blogger on May 5th, 2011
As active death penalty opponents are likely to be aware, it is becoming increasingly likely that Connecticut will become the seventeenth state to abolish the death penalty. Repeal legislation has made its way through the state's joint Judiciary Committee, and state senators will soon have an opportunity to vote on this historic legislation. While the vote is likely to be close, commentators believe the bill will pass, and Governor Dan Malloy has said he will sign the legislation if and when it reaches his desk.
As exciting as this news is, this will not be the first time that Connecticut has gotten close to abolition, as a 2009 repeal bill passed both houses only to be vetoed by then Governor M. Jodi Rell. Once again, it appears as though the death penalty will no go away without a fight, as proponents (most notably Dr. William Petit, Jr. whose family was killed in a grizzly 2007 home invasion) have been campaigning aggressively against the bill.
Interestingly, some of the legislation's most vocal supporters have, like Dr. Petit, lost family members to violent crime. In an open letter to Connecticut's legislature, a coalition of 76 co-victims urges for end to capital punishment, arguing that "rather than preventing violence, [the death penalty] only perpetuates it and inflicts further pain on survivors." Citing the incredibly lengthy and emotionally devastating appeals process, as well as the policy's tendency to unfairly elevate, as more heinous, some murders over others, the letter's drafters have put together an articulate plea and heartbreaking call to put an end to this cycle of killing.
While it is fortunately only a very small number of us who can truly understand these co-victims perspective, it falls on all of us to support them in ensuring that this historic legislation passes. Please take a moment to take action and play, however small, a role in ending this broken system before it claims any more lives.
Actual death penalty abolition would be a lot cheaper than de facto moratorium
Posted by John MacGregor, Guest Blogger on May 4th, 2011
After Governor Brown called
off the construction of a new $356 million death row facility earlier
this week, the Warden of San Quentin suggested that, at the earliest, it might
be another year before the state beings executing inmates again. There have been no executions in California
since 2006, when Judge Jeremy Fogel declared the moratorium. Fogel felt there was enough merit to concerns
that the state’s lethal injection procedures might cause inmates unnecessary pain, and
would thus be in violation of the 8th Amendment’s prohibition against
cruel and unusual punishment. Since that time the state has changed its
procedure to better comport with Fogel’s demands. The Warden, however, wants time to train a
new team of 20 executioners – a task that will likely take over a year. This move will extend the state’s de facto
moratorium into its sixth year.
The move will also raise some questions about California’s
fiscal priorities. For at least six
years, California’s taxpayers will have been footing the bill for a death row
that doesn’t execute anyone. It would be
far cheaper for the state to simply make things official and become a death
penalty free state. Since 1978, only 13
inmates on California’s death row have been executed, compared with the 78
deaths from other causes. Taking the
program’s budget over the past 33 years into account, some simple arithmetic
shows that California taxpayers have spent approximately $250m on each
execution. When state
universities are doubling tuition, teachers
are being laid off, and police
departments being downsized to the point where they can only respond to
certain 911 calls, does it really make sense to drop this much money on a
system that might, without hyperbole, actually be the most inefficient
government-run program in the country?
48 Hours Mystery Details Wrongful Death Sentence of Anthony Graves
Posted by John MacGregor, Guest Blogger on May 2nd, 2011
48 Hours Mystery recently aired a new video detailing the story of Anthony Graves, a Texas man who was sentenced to death for a crime he did not commit. After his wrongful conviction, Graves spent 18 years of his life awaiting execution on death row. The video highlights two regular problems in death penalty cases – innocence and prosecutorial misconduct.
After a family of six was murdered in 1992, investigators refused to believe that the admitted murderer, Robert Carter, acted alone. Investigators pressed Carter to divulge the name of his supposed accomplice, and he eventually implicated Anthony Graves. Before testifying against Graves in court, Carter privately recanted his story, so the prosecution decided to cut a deal: If Carter testified, the prosecution would not ask about his wife’s involvement. Carter acquiesced.
Furthermore, when Graves’s girlfriend was about to testify that Graves had spent the entire night of the murder at home with her, the prosecutor made a veiled threat that if she did testify, she too might be implicated in the murder. At the last minute she decided not to testify. “They put him in jail […] on nothing,” she said, “what's to stop them from putting me in jail on nothing?”
The prosecution, of course, failed to divulge any of this information to the defense. Graves was found guilty and was sentenced to death.
While he was awaiting execution on death row, Robert Carter repeatedly told fellow prisoners that Anthony Graves played no part in the murder. Furthermore, moments before being executed in 2000, Carter said as his final statement, “It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court."
Despite this information, Graves hopelessly remained on death row until a group of journalism students at St. Thomas University began investigating the case: "We weren't out to prove anyone innocent. That was not our goal. Our goal was just to find out the truth.” Over time, these students began to reveal the prosecution’s unorthodox methods, and soon the case against Graves crumbled. Due in large part to these revelations, Graves’s case was eventually reversed by an appellate court.
After he was freed from death row, however, Graves had to spend the next four years in jail awaiting his retrial. The new prosecutor, with a 19-0 record in her previous death penalty cases, eventually met with Graves’s defense team and told them that she had no evidence that Graves was even remotely involved in the murder, and that she was dropping the charges: “This guy's innocent - not just not guilty, but innocent."
Texas stole 18 prime years of a man’s life and destroyed his family’s reputation. "I wanted people to know that my mother didn't raise a murderer. My mother raised a good son. That meant something to me." Texas also came tantalizingly close to executing an innocent man. At the very least this case demonstrates that with our current system, mistakes still happen – our system is clearly flawed, and when the stakes are so high that lives hang in the balance, a flawed system is unacceptable.
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