Originally published on the Daily Koson April 19, 2011.
By Tanya Greene, Advocacy and Policy Counsel, ACLU Center for Justice
When I was a child, my cousin was brutally murdered. As far as our family knows, the police never found his killer.
A few years later, another cousin of mine was murdered in prison. His killers were in cahoots with his jailers, so none of them was ever prosecuted.
No one received the death penalty for these murders, and as a beloved family member of murder victims, I would never have supported pursuing capital punishment in either case.
As legislators in Connecticut grapple with a bill that would abolish the death penalty in the state, murder victims' families are speaking loudly about their opposition to Connecticut's capital punishment system. There is a tension. On one hand, victims' family members need finality and an end to reliving their loved one's horrible death in the media and the courts. But that kind of finality is not immediate, because the Constitution requires due process, effective counsel, and protection against wrongful conviction for those sentenced to death. The years of legal appeals before an execution extend and exacerbate murder victims' families' suffering.
During a public hearing last month on the pending death penalty abolition bill, the stories of numerous victims' family members had a common theme: in order for the needs of murder victims' family members to be served, the death penalty must be replaced with permanent imprisonment, a more cost-effective alternative that would free up limited state resources for additional services for victims.
When a loved one is murdered, the whole world as you know it comes crashing down, never to be the same again. But more killing won't bring the loved one back. It will, however, bring more pain for yet another family.
And I am a firm believer that the murder remains on the conscience of the killer forever — and that is a heavy burden they will never escape.
As Standard and Poor’s threatens to downgrade the credit rating of the United States of America, and the debate on the deficit and income tax rates continues, the Department of Justice continues a mode of truly extravagant spending: the federal death penalty.
This spending is especially gratuitous when the federal government disregards a community's own values and policies by seeking the death penalty in jurisdictions like the State of New York which do not themselves practice judicial homicide.
As reported by the New York Times and the Death Penalty Information Center, the federal government may end up spending $10 million on the capital murder trial of Vincent Basciano, a convicted murderer and racketeer who is presently serving a life sentence without the possibility of parole for the 2008 killing of fellow mobster Frank Santoro. Bonnano crime family boss Joseph C. Massino broke the mafia’s code of silence and has testified that Basciano ordered the 2004 murder of Bonnano associate Randolph Pizzolo. It is important to note that Mr. Massino is currently serving time for eight different murders, and has offered his testimony in attempt to reduce his sentence.
When the Government decided to seek the death penalty, Federal District Judge Nicholas G. Garaufis wisely urged Attorney General Eric Holder to reconsider this decision, noting that "Basciano is already sentenced to life imprisonment. He is designated to serve his sentence under extremely restrictive conditions in one of the nation's most secure penal institutions." That institution, ADX Florence in Colorado, is a federal "supermax" prison which employs state of the art security measures designed to accommodate the most dangerous federal offenders, including mobsters and terrorists.
Mr. Holder’s eagerness to pursue the death penalty is deeply disappointing as it brings the entire U.S. justice system down to the homicidal level of the criminals we prosecute. Additionally, the decision to seek death despite New York’s seven year ban on the practice runs the risk of making an already extremely costly process even more expensive as going through the process of selecting a jury willing to apply the death sentence is more challenging in jurisdictions which no longer practice capital punishment. All this energy is likely to amount to no change from Basciano’s current condition, as most federal capital trials where the defendant is convicted actually end with a penalty of life imprisonment, an outcome that seems especially likely given that New Yorkers have already rejected the death penalty.
Regardless of the outcome in the Pizzolo case, Vincent Basciano will spend the rest of his life behind bars. Knowing this, it is hard to understand how the Attorney General’s office could justify the enormous fiscal and moral costs of a capital trial. Our current economic difficulties make it imperative that we continue to advocate for abolition, the kindest budget cut of all. It is time for us to abandon the pursuit of purely symbolic “victories” and turn our limited resources towards measures that will actually prevent violent crimes.
What do Illinois Governor Pat Quinn, Hilary Swank and The Sisters of St. Joseph of Orange have in common? They are all receiving awards on May 12th from Death Penalty Focus. Join us at the Beverly Hilton for a fun and inspiring evening. Other honorees are Stephen Bright, President of The Southern Center for Human Rights, Lance Lindsey, recently retired Executive Director of Death Penalty Focus, and the Death Penalty Clinic at UC Berkeley Law School, led by Elisabeth Semel and Ty Alper. More info and ticket purchase here: DPF Awards Dinner
William "Tommy" Zeigler last year, photo by Jacob Langston of the Orlando Sentinel
Last week Tommy Zeigler won an important battle for further DNA testing in his death penalty appeal. Zeigler was convicted of murdering his wife, in-laws, and a customer at his furniture store in Winter Garden, Florida on Christmas Eve 1975. Having sat on Florida's death row for decades, a judge has now ordered new tests to be performed on blood from the crime scene that Zeigler claims will exonerate him.
Zeigler was arrested and tried on the theory that he killed his wife to collect half a million dollars in life insurance, and that he shot himself to cover up his crime and frame it as an invasion. Zeigler has never wavered in his account of what happened, and passed polygraph tests asserting that he and his family were victims of a robbery that may have been motivated by Zeigler's involvement in uncovering a loan-sharking ring victimizing migrant workers.
Numerous injustices occurred over the course of Zeigler's trial and subsequent incarceration, including the misplacing and knowing destruction of evidence; reports offering exculpatory evidence were turned over to the defense team with very little time to prepare, or were not disclosed at all; a number of jurors in his original trial (half of whom first voted to acquit Zeigler, but were persuaded to convict) have come out in his support, and a couple have admitted to being prescribed Valium so they would be more amenable to convict a man whose guilt was in doubt. Prosecutors used witnesses that identified Zeigler as the killer while ignoring those eyewitnesses whose stories did not mesh with the state's fictionalized account.
Christine Cooper is the daughter of Robert Thompson, the former Central Florida police chief who was the first police officer at the crime scene. Cooper said she believes "the justice system failed" Zeigler. Thompson was involved as a mercenary in the arms trade in Central America in the 1980s, and his daughter says he died in 1999 "taking a lot of secrets with him." Thompson suppressed a report after the crime that did not surface until 1987 in which he wrote that the blood on Zeigler was dry when he found him, yet in its case against him, the state claimed Zeigler had just shot himself minutes earlier.
While the suspicions of the daughter of a deceased police chief are certainly not enough to overturn a murder conviction, Cooper's doubt and that of a number of witnesses and jurors lend credence to Zeigler's claim of innocence. It is clear that the case was mishandled, and justice was not properly served. Failed by the justice system on more than one occasion, Tommy Zeigler has been afforded his best chance in decades of receiving true justice with this admission of new DNA evidence. Should his sentence ultimately be reversed, Zeigler will join the nearly two dozen former Florida inmates who have been exonerated from death row since the 1970s. Please visit our Florida Action page to add your voice to those in favor of abolishing the state's failed death penalty system.
In his recent book, Ending theDeathPenalty:TheEuropeanExperienceinGlobal Perspective, Andrew Hammel compares the successful abolitionist movements in Europe to their so-far unsuccessful counterparts in the US. It has long been perplexing that countries so similar in history, culture, and wealth would differ so markedly when it comes to capital punishment. Hammel attacks this problem by analyzing the abolitionist movements in Germany, Great Britain, and France. In these countries a small group in the ruling elite abolished capital punishment even though public opinion was by and large decidedly in favor of it. Given the populist tendencies in the United States, as well as our strongly entrenched Federalist system, Hammel argues that, politically, such a top-down approach is next to impossible here.
In his review of Hammel' s book, Law Professor William Berry offers an alternative view which suggests that action from the U.S. Supreme Court might be a counter-majoritarian approach that could end the death penalty in America. Such action would most likely occur if the Court were convinced that the nation' s "standards of decency" had evolved to the point where the death penalty was considered a cruel and unusual punishment under the 8th Amendment. When it rendered the Harmelin decision in 1991, the U.S. Supreme Court agreed that any new interpretation of the " evolving standards of decency " should "be informed by objective factors to the maximum possible extent." The Supreme Court added in Penry v. Lynaugh that these "objective factors" should come from examinations of the state legislatures and jury decisions.
With the necessity for such objective evidence in mind, it is of note that during the past decade there has been a noticeable national shift toward a de facto ban on capital punishment. Since 2007, the New Jersey, New Mexico, and Illinois state legislatures have all done away with the death penalty , leaving 34 states that retain it. In New York, where the court struck down the state' s statute, the state legislature refused to reinstate it.
Furthermore, between 1998 and 2009 there has been a clear trend in the number of new death sentences per year given by juries in the United States: 294 -> 277 -> 224 -> 159 -> 166 -> 152 -> 140 -> 139 -> 123 -> 120 -> 119 -> 112, a decline of 60% over 12 years. Additionally, since 2002, the Supreme Court has in three separate decisions, banned the execution of the mentally retarded, those under the age of 18 at the time of their crime, and those who committed a crime other than murder. In these cases, the Court cited " evolving standards of decency ."
The Court has at its fingertips viable objective data from various state legislatures and evidence of decreasing death verdicts by juries, both of which demonstrate a national shift is indeed occurring. Hammel and Berry suggest that the successful top-down approach taken to end the death penalty in Europe will only occur in the US only if the Supreme Court takes action. Given the declining number of death sentences and the growing list of states without the death penalty , perhaps the time is ripe for the Supreme Court to act.
Posted by Zac Stone, Guest Blogger on April 13th, 2011
Our 2011 Supreme Court
The Roberts Court really hit its groove in 2010, stripping cities' gun control laws and destroying longstanding campaign finance regulations (or as they would have it: extending free speech rights to corporate Americans), but we're just one quarter of the way through 2011 and we have already seen far-reaching decisions by the Roberts Court resulting in an assault on Americans' civil liberties. The Court is ignoring and defying a mounting chorus of opposition to the death penalty both nationally and globally, and setting precedents that will not just harm violent criminals, but innocent citizens and their loved ones. The Supreme Court has had its share of death penalty advocates in its history, but John Roberts and his conservative cohort on the Court - Antonin Scalia, Clarence Thomas, Samuel Alito, and from time to time Anthony Kennedy (the "swing" voter) - have proven themselves willing to put finality above justice and fairness.
In 1972, by a vote of 5-4, the U.S. Supreme Court decided in Furman v. Georgia that the nation's death penalty laws were constitutionally flawed because the statutes failed to narrow the use of the death penalty to just the worst of the worst. They extended a moratorium on new sentences until each state "fixed" its statute. Among those justices favoring the moratorium were William Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall. Those dissenting, who believed the death penalty to be constitutional as it was applied, were Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist. Four years later, the Court, with John Paul Stevens in place of Douglas, would vote to reinstate the death penalty 7 to 2 in its historic Gregg v. Georgia decision. Only Justices Brennan and Marshall dissented, arguing that the death penalty has no deterrent effect and that our society has evolved beyond the need to kill for retribution.
By the time the Court issued its 1987 decision in McCleskey v. Kemp, Sandra Day O'Connor and Antonin Scalia had joined them, replacing Stewart and Burger. Writing for the majority, Lewis Powell dismissed a statistical study that showed killers of whites were 11 times more likely to be sentenced to die than those whose victims were Black. Four other justices agreed with Powell, who said the study failed to "demonstrate a constitutionally significant risk of racial bias," and was insufficient to invalidate Georgia's death penalty.
Time and time again, however, the statistics would prove consistent - to this day those who kill whites are significantly more likely to face execution than those who kill African-Americans or Latinos. His decision in McClesky v. Kemp would become one of Powell's great regrets; Powell told his biographer in 1991 he would reverse his McClesky decision if afforded the opportunity, saying he had "come to think that capital punishment should be abolished."
Harry Blackmun and John Paul Stevens both dissented in McClesky, but qualified their statements, distancing themselves from Justices Marshall and Brennan, who since Furman had openly stated that they believed the death penalty to be cruel and unusual punishment in any circumstance and that it could not be made fair. Blackmun would wait another six years before finally declaring the death penalty system "fraught with arbitrariness, discrimination, caprice and mistake" (Callins v. Collins, 1993).
"The problem," Justice Blackmun said, "is that the inevitability of factual, legal and moral error gives us a system that we know must wrongly kill some defendants, a system that fails to deliver the fair, consistent and reliable sentences of death required by the Constitution."
John Paul Stevens' position on capital punishment evolved over his three decades on the court, but he too eventually concluded in 2008 that capital punishment is both "pointless and needless." He offered further insight in a New York Times essay published in late 2010, in which he wrote, "While support of the death penalty wins votes for some elected officials, all participants in the process must realize the monumental costs that capital cases impose on the judicial system. The financial costs…are obvious; seldom mentioned is the impact on the conscientious juror obliged to make a life-or-death decision despite residual doubts about a defendant's guilt." Consider also the impact on corrections officials and medical personnel put in the position of executing a person whose guilt is uncertain.
"Many [inmates] have repented and made positive contributions to society," Stevens wrote. "The finality of an execution always ends that possibility. More importantly, that finality also includes the risk that the state may put an actually innocent person to death."
The Roberts Court would do well to heed the wisdom of three of its predecessors, appointed by Republicans, informed by years on the bench, who all reversed course on the death penalty after or near the end of their tenure on the Court. It seems clear, however, that they don't share Justice Blackmun's resistance to "tinker with the machinery of death."
Just last month, the Court reversed a jury verdict and lower court ruling that had awarded a wrongfully-convicted man, John Thompson, a $14 million dollar settlement for the 14 years he spent on Louisiana's death row. Prosecutors supervised by Orleans Parish district attorney, Harry Connick, Sr. had covered up exculpatory evidence that demonstrated Thompson's innocence. Though Thompson was able to prove that multiple prosecutors withheld evidence that would have exonerated him, the Court found with Clarence Thomas, writing for the majority that, "a district attorney cannot be held liable for the actions of his subordinates." Justice Thomas claims one must prove a pattern of similar violations exists in order to justify holding the city's government liable for the misconduct; one Brady violation in Thompson's case, albeit egregious and involving numerous prosecutors, just doesn't cut it.
The Court has issued a dangerous precedent in Thompson's case. As Ruth Bader Ginsburg stated in her dissent, "The prosecutorial concealment Thompson encountered…is bound to be repeated unless municipal agencies bear responsibility." By saying the buck stops nowhere, the Court has effectively eliminated a defendant's ability to hold prosecutors accountable for willfully violating his civil liberties, giving prosecutors everywhere incentive to use similar underhanded tactics to achieve future guilty verdicts and death sentences.
Last week the Court's majority took the bizarre step of actually reinstating a death sentence in the case of Scott Lynn Pinholster, who suffered brain damage as a child that resulted in his intellectual disability, despite rulings by a federal judge and a federal appeals court that found Pinholster's attorneys had failed him by offering no mitigating evidence during his sentencing trial. You don't have to be a legal scholar to see the how knowingly ignoring evidence - exculpatory, mitigating, or otherwise, can lead to an injustice.
In light of its recent rulings, it is evident that a majority of the justices currently on the Court are willing to dismiss the opinions of those that came before them and a growing majority of the global community. The Court's majority has shown an indifference to human life and a willingness to erode civil liberties with no discernable benefits to our society.
If Justices Blackmun, Powell, and Stevens were able to travel back in time and reconsider Gregg v. Georgia, they would likely join Justices Brennan and Marshall in striking down the death penalty.
If just one of the Court's current sitting justices revised his thinking about the death penalty, we would likely see a drastic sea change on the matter.
Unfortunately, we cannot wait for reason to strike. America's 30-year experiment with the death penalty has failed. To protect human life, to save states' depleted financial resources, we must embrace ending the death penalty where we can, and limiting its use where abolition is currently politically impossible. To artificially prop up what Justice Blackmun described so long ago as a failed experiment is nonsensical. Upending the status quo has never been easy, but the Roberts Court and all of us ought to strongly consider the viable, life-affirming alternatives to America's overworked courts and bloated death row prisons.
Posted by James Brockway, Guest Blogger on April 12th, 2011
In their study, “Not In My Name: An Investigation of Victim’s Family Clemency Movements and Court Appointed Closure,” recently published in The Western Criminology Review, University of Louisville sociologists Thomas J. Mowen and Dr. Ryan D. Schroeder shine a spotlight on one of the more misunderstood elements of the death penalty, namely the effect that death sentences have on covictims, the surviving family of the murdered. While victim’s family members are often trotted out as the main beneficiaries of capital punishment, Mowen and Schroeder’s research draws attention to the growing victim’s clemency movement and helps to explain how the recent emphasis on closure as a justification for the death penalty has in fact produced greater covictim opposition. Their work also draws attention to the role media coverage plays in both representing and shaping public opinion on the death penalty, highlighting the way that newspapers have a tendency to overstate victim support for the system.
As the authors are very quick to point out, there are some very serious problems with these closure based arguments for maintaining capital punishment. First, there is a serious contradiction between the “highly contextual and individualized” nature of closure as an emotional state, and the objective and rational framework of the legal system which is supposed to deliver this feeling to the aggrieved. This problem is compounded by the fact that there is often a very real difference between the way the court and covictims conceive of closure—for family members who have lost love ones, the pain of that loss frequently lingers long after the case is “closed” and the legal mechanisms for applying justice have reached their terminus. The idea that any legal remedy could resolve their suffering functions to marginalize the voices of covictims as they go through the grieving process, and may in fact stifle the creation of social networks that are responsive to their needs (as can be seen anecdotally in the way California’s victim’s restitution fund has been allowed to approach bankruptcy as the state continues to spend millions of dollars each year on capital punishment). The tension between the diverse and continuous process of grieving and the one size fits all approach of the justice system has the effect of shoehorning covictims into a court approved version of closure which leaves little room for alternative ways of coping with loss.
In addition to creating problems for victims, the closure approach to capital punishment also raises significant concerns for the fairness of our justice system. By treating trials as therapeutic tools, the emphasis on closure reverses the presumption of the accused’s innocence which is a hallmark of our legal system, and threatens to only heighten the bias which frequently plagues capital trials. If trials are being undertaken in order to serve the particular emotional needs of family members, we are implicitly sending the signal to jurors that their primary obligation is not to dispassionately assess guilt or innocence, but is instead to actively involve themselves in victims’ healing processes, thus staking the deck against defendants before trials even begin.
Because of these concerns, there has been a growing contingent of victims who oppose execution as a means of closure. Mowen and Schroeder’s study documents the emergence of this covictims clemency movement as a reaction to the shift in popular justification for capital punishment, while also evaluating the way newspaper coverage of capital trials seeks to minimize acknowledging this reaction. To do this, they analyzed 119 articles from the 1992-2009 that comprised a representative cross-section of death penalty coverage. They found that there was a statistically significant increase in covictim resistance to capital punishment which occurred at a rate of 3.262% during the period studied. They also discovered that courts had a tendency to cite closure as an explicit justification far more frequently then covictims (who other studies have indicated report executions bring closure in only 2.7% of relevant cases).
Despite this trend of increased opposition, newspaper coverage consistently attempts to highlight victim support for the death penalty. In their research, Mowen and Schroeder consistently found that articles which emphasized the execution-closure connection were longer and more prominently featured in the paper than their anti-death penalty counterparts. While they were reluctant to draw overly sweeping conclusions from their data set, Mowen and Schroeder rightly observe that their findings point to a growing disjunction between the actual will of victim’s family and the popular representation of their interests.
“Not In My Name” represents an important step towards challenging conventional wisdom regarding covictims’ stance on capital punishment, and raises important questions about the practical and moral implications of using state-killing as a tool for healing. Mowen and Schroeder have pointed the way for a research agenda which attempts to take seriously the multitude of perspectives held by victims’ families, and their call for a transformation of “victims’ families from noncontributing outsiders...to active participants within the current capital punishment paradigm” demands attention from all of us who are committed to ensuring that no one, be they covictim, or defendant, is “victimized at the hands of ‘justice.’”
Posted by Margo Schulter, Guest Blogger on April 12th, 2011
In her courageous and compelling dissent from a 5-4 decision of the United States Supreme Court reinstating the death sentence of California prisoner Scott Pinholster, Justice Sonia Sotomayor told how a jury deliberated for two days before returning its fateful penalty verdict -- after Pinholster's two trial attorneys failed to investigate his background, overlooking evidence of his traumatic brain injuries in early childhood, seizure disorders, and severe lifelong mental illness that would have made a powerful case for life.
Justice Sotomayor, along with her colleagues Ruth Bader Ginsburg and Elena Kagan, would have affirmed a 2009 decision of the federal Ninth Circuit Court of Appeals overturning Pinholster's death sentence on the grounds that the failure of his attorneys to search for and find this "voluminous" mitigating evidence violated his Sixth Amendment right to "effective assistance of counsel" in the penalty phase of his 1984 trial.
However, a five-justice majority led by Justice Clarence Thomas reversed the Ninth Circuit and reinstated the death sentence, holding among other things that the new evidence of the "psychotic" Pinholster's traumatic brain injury, neurological abnormalities, and severe mental illness did not raise a "reasonable probability" that if his jury had heard it they might have reached a different penalty verdict, thus "undermining" confidence in the actual verdict of death. The full text of the Court's arguments can be found here.
The case also focused on technical issues relating to the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, passed by Congress to restrict the scope of federal appeals by state prisoners in capital and noncapital cases. Justice Thomas, writing for the Court, made the interpretation of these restrictions yet tighter by holding that federal courts must give full weight and deference to a state court's denial of a prisoner's constitutional claim (e.g. ineffective assistance of counsel) even if the court simply rejects a claim without stating any findings of facts or explaining its legal reasoning. The Court's holding also limited the scope of federal evidentiary hearings exploring facts not fully developed in state court that might cast additional doubt on a conviction or death sentence.
Justice Thomas was joined in his opinion by Chief Justice John Roberts and Justices Antonin Scalia and Anthony Kennedy; Justice Samuel Alito furnished the fifth vote to reinstate Pinholster's death sentence, but wrote separately to urge the need for a broader scope for federal evidentiary hearings. Reserving judgment on Pinholster's death sentence, Justice Stephen Breyer would have remanded the case for further consideration by the Ninth Circuit, leaving that court to decide whether an evidentiary hearing might be justified under the stricter reading of the AEDPA now in effect.
Cutting to the heart of the matter, however, it was Justice Sotomayor who served as the moral and legal compass of the Court by telling the horrific story of Pinholster's brain injuries, violent abuse by his stepfather and other family members, abnormal EEG at the age of nine followed by seizure disorders, and lifelong history of serious mental illness which led to a proposal to place him in the Hope Psychiatric Institute only months before he murdered Thomas Johnson and Robert Beckett in the course of a 1982 burglary at the home of a drug dealer who was a friend of the victims.
In vivid human detail, we learn how Pinholster was run over by his mother at the age of two, and then in another car accident at the age of four or five had his head thrown through the windshield of the vehicle, suffering injuries which could explain his brain abnormalities and epileptic seizures from childhood on, as well as his evident learning disorders and psychological problems ultimately leading to an escalating pattern of violent and criminal behavior.
Together with these traumatic brain injuries went a childhood in which Pinholster and his siblings, to quote a psychiatrist who actually testified for the state, Dr. John Stalberg, had been "raised like animals, wild animals." Pinholster's stepfather had routinely beaten him -- on at least one occasion with a wooden two-by-four. The history of close family members was filled with mental illness and drug abuse as well as criminal behavior. As Sotomayor details, "Pinholster's half-sister was removed from the home as a result of a beating by his stepfather...."; and his elder brother was diagnosed as "catatonic-like" and "acutely psychotic," eventually committing suicide.
Reading these facts, one must ask, how could any reasonable court sustain a death sentence handed down by a jury in ignorance of this overwhelming mitigation, much less hold that there was no "reasonable probability" that the jury might have chosen permanent imprisonment (life without parole) if informed of the tragedy of Pinholster's entire life as well as the horror of his two murders and other crimes?
As Justice Sotomayor shows, ably commanding the Court's intricate death penalty jurisprudence developed over the last four decades while never losing sight of the human realities, proper application of recent cases would require upholding the Ninth Circuit's decision to vacate the death penalty, leaving California free either to grant Pinholster a new penalty trial where the jury can hear all the mitigating evidence, or else simply to reduce the sentence to permanent imprisonment.
As shocking as the deficiencies of Pinholster's trial lawyers, one of whom was later disbarred, perhaps even more appalling was one of the explanations offered by Justice Thomas for holding that the omitted mitigating evidence would have been unlikely to change the result: the evidence of serious "substance abuse, mental illness, and criminal problems" in Pinholster's family was "by no means clearly mitigating, as the jury might have concluded that Pinholster was simply beyond rehabilitation."
Amazingly, to justify the view that a rational jury could weigh Pinholster's tragic family background -- and presumably also his own traumatic brain injuries and resulting seizure disorders as well as his lifelong mental illness -- as factors actually tipping the scales toward death, Justice Thomas cites the case of Atkins v. Virginia (2002). There the Court likewise noted that mitigating evidence of mental retardation "can be a 'two-edged sword'" which might lead a jury to find the aggravating factor of "future dangerousness."
Whether or not Justice Thomas realized or intended it, his citation of Atkins is indeed a powerful two-edged legal sword: to avoid the risk that a jury might perversely view a defendant's intellectual disability as aggravating rather than mitigating, the Atkins Court categorically excluded the death penalty for offenders with mental retardation. And in Roper v. Simmons (2005), likewise noting a Missouri prosecutor's suggestion that the youth of a defendant who killed at age 17 was "scary" rather than "mitigating," the Court eliminated the risk of such misguided and deadly logic by categorically barring the death penalty for offenders who committed their capital crimes before reaching the age of 18.
Legal advocates have already been urging that the logic of Atkins and Simmons should be extended by barring the death penalty for all defendants with serious mental illness or organic brain damage, thus avoiding miscarriages of justice such as that documented by the Ninth Circuit and Justice Sotomayor in the case of Scott Pinholster. It is ironic that Justice Thomas, by his two-edged citation of Atkins, may have provided the most cogent argument of all in favor of barring the death penalty for the intellectually disabled.
Better yet, of course, we should categorically bar the death penalty under any circumstance.
Posted by John MacGregor, Guest Blogger on April 11th, 2011
Late last week yet another pharmaceutical company refused to supply the lethal injection drug sodium thiopental to prisons. After it pulled the drug from the market, Kayem Pharmaceutical, a company based in India, released a statement emphasizing its opposition to the drug's use in capital punishment: "[…] we voluntary declare that we as Indian Pharma Dealer who cherish the Ethos of Hinduism (A believer even in non-livings as the creation of God) refrain ourselves in selling this drug where the purpose is purely for Lethal Injection and its misuse" [sic].
This move creates more problems for prisons already dealing with a critically short supply of the drug. Earlier this year Hospira Inc., the last domestic supplier of sodium thiopental, ceased production to protest its role in lethal injection. Prisons then turned to overseas providers, but faced mounting legal issues with the DEA and FDA. The Texas Department of Corrections, for instance, was raided last month after it came to light that it had illegally imported its supply of sodium thiopental from Italy. The Texas DoC was not authorized to independently import a schedule III narcotic into the United States and also failed to declare the shipment to the DEA.
The Nebraska Department of Corrections has also fallen under unwanted scrutiny amid evidence that it too cut corners when it imported sodium thiopental from India. The Nebraska DoC is not authorized by the DEA to directly import drugs from foreign suppliers. One document even suggests that, in place of sodium thiopental, Nebraska instead received a shipment of thiopentone thiosol sodium– a generic version of the drug not authorized for use in executions. Furthermore, Kayem failed to gain permission from the FDA before it exported the drug to the United States.
The manufacturers’ boycott of sodium thiopental production could be a crucial step toward a de facto abolition of the death penalty in the United States. As the remaining sodium thiopental available for executions expires and is not replaced, states will need to find a suitable replacement drug that comports with the 8th Amendment’s prohibition against cruel and unusual punishment. This process could take a great deal of time. California, for instance, has had a de facto moratorium since 2006 as the Constitutionality of the state’s lethal injection protocol is reviewed. As states scramble to find a suitable replacement for sodium thiopental it is quite possible that the number of executions in the United States could, at least in the short term, drastically decline.
The following is from
interview given by Death Penalty Focus President Mike Farrell. Mike has been heavily involved in struggles
to protect human rights at home and abroad for more than three decades, and in
addition to his work with DPF serves as a member of the board of directors for
the National Coalition to Abolish the Death Penalty. In this Q&A session, Mike sheds some
light on why our system of capital punishment moves as slowly as it does, what
the real social costs of that system are, and what more effective alternatives
might look like.
death penalty was held unconstitutional in 1972 in what is known as the Furman
decision (Furman v. Georgia).
The court held that imposition of the death penalty at that time was “cruel and
unusual” and compared it to being struck by lightning. The justices felt
that it was used in an arbitrary and capricious manner and that there were
implications of racism in its application.
1976, in Gregg v. Georgia,
the death penalty was reinstated by virtue of a number of safeguards that were
built into the law, the intention of which was to correct the problems found in
Furman. These safeguards included the requirement of a bifurcated trial,
the first to determine guilt or innocence and the second, if guilt was
determined, to decide the punishment. In a capital case with what became
known as “special circumstances,” or aggravating factors, the choice was then
between life in prison with no chance of parole or death.
as the courts said, “death is different,” it required additional protections
for the accused, all of which cost a great deal of money: provision of expert
witnesses, requirement that two competent attorneys represent the defendant,
special security, etc. And in the case of a guilty verdict and a death
sentence, the court required that a series of appeals be available to the
convicted person, first through the state and then through the federal courts.
the problem is that criminals spend too much time on death row, that is simply
the way it has worked out in order for the system to meet our constitutional
standards. What the appeals process has exposed is the too-often slipshod
manner by which people are sentenced to death and the hideous number of
wrongful convictions that occur. In order to speed up the process we
would not only have to spend much more money, we would also run an increased
risk of executing the innocent.
my view, many of those who commit murder are capable of being rehabilitated and
returned to society after they have demonstrated remorse, worked to earn money
that can be used to compensate victim’s family members (or a victim’s fund),
and worked to improve themselves and show an ability to be a productive and
law-abiding member of society. For that reason, I believe there should be
a series of graduated sentences for a capital crime and during the period of
incarceration, the convicted should be given opportunities to better him or
herself. Sentences then could begin with something like a requirement of
at least 25 years before being considered for parole, perhaps 40 years for
others, depending on the circumstances of the crime, and that life without
parole should be reserved for those so bent and broken by life’s circumstances
that they cannot ever be safely released into society.
way we would not demean ourselves by stooping to killing other human
beings. And, we would save hundreds of millions of dollars.
Posted by Stephen F. Rohde, DPF Board Member on April 1st, 2011
In a civilized society, we should not kill to show that killing is wrong. Dennis Prager thinks that murderers should die and therefore places state killing on a higher moral plane than those of us who believe that state killing is itself immoral ("Murderers Should Die," March 18).
Prager claims that there is almost no issue "for which the gulf between people on opposite sides of an issue is as unbridgeable as on the issue of the death penalty for murderers." Yet he ignores the fact that many have bridged that gulf as the death penalty continues to become less and less popular with Americans. A July 2010 Field Poll revealed that, when asked which sentence they preferred for a first-degree murderer, 42 percent of registered voters said they preferred life without parole and only 41 percent said they preferred the death penalty.
Prager cites the Torah as his single moral compass. But the Torah, among many ancient religious texts, includes rules and prohibitions that few would subscribe to today. According to the Torah, in addition to murder, offenses that merit death include disobedience to a parent, contempt of court, blasphemy, sacrificing to another god, false prophecy, necromancy, premarital sex, bestiality and breaking the Sabbath.
"Many Jewish opponents of the death penalty point to Israel, which has disallowed capital punishment since its establishment," Prager argues, but he dismisses this important fact by claiming that "Israel was founded by Jews who took their values from the European Enlightenment, not from the Torah, and that is why they banned capital punishment in Israel."
Indeed, most Americans, including the [Founding Fathers] who wrote the Declaration of Independence and the Constitution, and presumably most Jews in America, also derive their values from the European Enlightenment, which over time has led to less and less support for the death penalty.
The majority of nations and Western democracies have abolished the death penalty, and the International Criminal Court has barred the use of capital punishment even for war crimes and crimes against humanity.
Prager engages in the utter speculation that "more innocents die with no capital punishment than with it." If we consider life without parole the natural alternative to the death penalty, the risk to innocent people is negligible. The risk of a murderer escaping from prison and murdering again is less than a fraction of a percent. And Prager callously ignores the fact that there is overwhelming evidence in at least nine cases since 1980 that innocent men were executed in the United States.
Elie Wiesel, covering Adolf Eichmann's trial in Jerusalem (the only instance of civil execution in Israel's history), called the execution "an example not to be followed." "Society should not be the Angel of Death," he said. "We should not be servants of death. The law should celebrate, glorify, sanctify life, always life."
As between Wiesel and the value of life and Prager and the value of death, I choose life.
The writer, a constitutional lawyer, is president of the Progressive Jewish Alliance and represented a man on California's death row.
This letter originally appeared in theJEWISH JOURNAL, March 29, 2011, Letters to the Editor section.
After some uplifting news from Los Angeles in the case of Francisco Carrillo, freed from prison last week after faulty eyewitness testimony wrongfully put him there 20 years ago, there is distressing news from Georgia, where Troy Davis, who has steadfastly maintained his innocence in the 1989 murder of an off-duty police officer in Savannah, has had his final appeal denied by the U.S. Supreme Court. And though Davis has been here before - his execution has been scheduled on three occasions, each time stayed by a judge for review - barring clemency by Georgia's Governor or Board of Pardons and Paroles, Troy Davis will soon face execution.
Convicted with no physical evidence linking him to the crime, Davis was unable to convince a federal judge that seven out of nine eyewitnesses recanting their testimony suggested doubt about his guilt. Because prosecutors lacked any physical evidence, including the murder weapon, which might link Davis to the crime, they relied entirely on the eyewitness testimony of, according to original defense lawyer Robert Barker, a "cast of characters" including "jail birds, felons, [and] twice convicted felons." This served to limit Davis' options for appeal, forcing him to try and prove that the seven eyewitnesses who recanted their testimony were now credible, and that their recantations diminished the state's case against Davis. Despite evidence of police coercion and other underhanded tactics used to obtain witness identifications, and two witnesses claiming another man confessed to the crime, it was apparently not enough to sow doubt in the mind of U.S. District Judge William T. Moore, nor the 11th Circuit Court of Appeals, nor the U.S. Supreme Court, which both declined to hear Davis' challenge.
Because the Drug Enforcement Agency recently seized Georgia's supply of sodium thiopental, the anesthetic used in executions which the state acquired illegally from sources abroad, Davis' execution will likely be delayed until the DEA completes its investigation or Georgia switches to another sedative in its lethal injection protocol. Arizona, Ohio, and Texas have adopted pentobarbital.
Execution drugs aside, serious doubts still exist about Davis' guilt, and they cast a pall over his death sentence. We know the dangers of relying on eyewitness testimony, and this case rests solely on the credibility of a pair of eyewitnesses, with nary a shred of physical evidence to tie Davis to the murder. How so many learned individuals are able to convince themselves Davis is guilty without a doubt is both astounding and disheartening. We must take action to ensure that justice is fairly served and not undermined, for Troy Davis, his family, and for the victims of this crime and others.
Posted by Donald A. McCartin, Guest Blogger on March 30th, 2011
Dear Governor Brown,
Welcome back. I offer here a few thoughts for your consideration.
After you were gutsy enough to appoint me, a right-wing Republican, to the Superior Court of Orange County, I served there from 1978 to 1993, after which I sat on assignment on death cases throughout California. In all, I presided over more trials than I can possibly recount. Among those I do remember, however, were ten murder trials in which I sentenced the convicted men to die in our state's execution chamber. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.
The ten were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, one has died of natural causes in prison and none of the others has been executed, a fact that stirs deep anger within me.
Let me explain:
I am angered by the fact that our system of laws has become so complex and convoluted that a decision I was put in the position to make, one that I then believed promised resolution for the family members of the victims of those crimes, has been made a mockery.
I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," required that special care be taken to safeguard the rights of those accused of capital crimes, especially those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And while I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.
I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die over 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing little Robin Samsoe and four other young women who, it has subsequently been determined, were his victims at around the same time.
I need not here go into the permutations of Mr. Alcala's legal journey. Behind bars since 1979, he has not harmed, nor can he harm, any other young women. That's instructive because harm has been done and that's what infuriates me. Robin Samsoe's mother has been re-victimized time and time again as the state of California has spent millions upon millions of dollars in a series of unsuccessful attempts to fulfill its promise that her daughter's murder can be resolved and she can go on with her life.
Had I known then what I know now I would have given Mr. Alcala and the others the alternative sentence of life in prison without the possibility of parole. Had I done that, Robin's mother Marianne would have been spared the pain of 30 years of misery, wondering if her daughter's murder would ever be finally resolved. She could have dealt then and there with the fact that her daughter's killer would be shut away, never again to see a day of freedom, and gone on to put her life together. Had I done that, the State of California would not have put her through the torture of hearing after hearing, trial after trial. Had I done that, the people of California would have been spared the hideous expense of hundreds of millions of their tax dollars that were squandered in this meaningless and ultimately fruitless pursuit of death.
It makes me angry, Governor Brown, to have been made a player in a system that is so inefficient, so ineffective, so expensive and so emotionally costly to those to whom it promises peace but delivers only pain.
I watch today as you wrestle with the massive debt that is suffocating our state and hear that you don't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been promised by prosecutors once the perpetrator has been killed by the state.
You and I know, Governor, that there is no such thing as "closure" when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts with the promise that the state will end their pain by causing the death of another is a cruel lie.
So I agree that we should no longer play games, Governor Brown. You and I are both older now, so let's stop playing the killing game. Let's use the hundreds of millions of dollars we'll save to protect some of those essential services now threatened with death. Let's stop asking people like me to lie to those victim's family members.
I'm told you don't have the power to end the death penalty by yourself, but you can point the way. You can have a huge financial impact on California by following the lead of Governor Ryan of Illinois and commuting the sentences of all the men and women on California's death row - all 700-plus of them - to life without parole. And you can direct the millions you save to making some of our citizens' lives brighter and more promising.
Let's stop playing games, Governor. Let's stop lying to the people; let's stop being politicians and start behaving like the grownups we've become.
Posted by Dale S. Recinella, J.D., M.T.S, Guest Blogger on March 29th, 2011
My dear Christian friend, Mr. Robert Michaels:
I read your 03/25/2011 01:03:32 AM PDT post in the Vallejo Times Herald concerning the Bible and the death penalty. Thank you for your sincere and conscientious interest in the issue of the death penalty. Perhaps because of my extensive writing and speaking in the area of the American death penalty and religion, especially Christian religion, it is proper for me to address you on this subject.
You have indicated that you are of the opinion that people of biblical faith must, after all is said and done, support what is required by the Bible. I agree. For decades I supported the American death penalty. My support was based upon what I thought was in Holy Scripture. And you and I are not alone in that. The reason, I think, that over 86% of all the executions in the U.S. in the last 33 years have occurred in the Bible Belt is because good, Bible-believing people believe that the Bible requires it. That was why I supported it.
Well, I'm also a lawyer. After many years as a corporate lawyer God called me and my wife to ministry. Now, with 13 years of ministry to the families of murder victims, to men being executed, to families of the executed, and to staff at Florida's death row prison, I have had to dig back into the Scriptures much more deeply than I had before in order to find out exactly what God is expecting of us.
My conclusion is that God expects our society to punish wrongdoing-you may use the word retribution and that's a fine word by my reading of the Bible. There must be consequences for choosing to do harm to society, to people and to property. And it must be just punishment or those who are not motivated by grace will scoff at the law and run roughshod over the innocent.
That brought me to the next question, what is just punishment?
Let's say a criminal commits a crime that causes someone to be burned over half their body, or causes a person to be blinded, or to lose a limb. Does the justice required by Scripture mean that we have to take that criminal and burn half his body, or blind him or severe his limbs? We might want to-but that's not the question. The question is does God's Word require such a burning or blinding or maiming in order for the punishment to be just? Virtually all Christians agree that it does not. Time to be spent in prison is the just punishment.
So, then, what if the crime committed involves the taking of human life? Is the killing of the criminal the only just punishment allowed by Scripture? I do not think so. I think life in prison without possibility of parole is punishment that fully grants retribution for the evil done. And, you and I do not have to become killers ourselves in order to carry out that punishment.
You have looked to Paul's Epistle to the Romans 13:3-4 to confirm God's mandate for capital punishment:
"But if thou do that which is evil, be afraid; for (government) beareth not the sword in vain: for (government) is the minister of God, a revenger to execute wrath upon him that doeth evil." Authorized King James Version.
The two critical words here are sword and execute. If government bears the sword as God's minister to execute offenders, it sounds like a scriptural mandate ("command") for capital punishment. Is it?
There are distinctly different Greek words that translate into English as sword. RHOMPHAIA means a saber, a long and broad cutlass, a broadsword. This is the instrument used for decapitation, capital punishment by sword. As a Roman citizen, Paul had the right to be executed by broadsword and not by crucifixion. My bet is that Paul knew the Greek word for the sword used for capital punishment. This is not the word used in the Greek in Romans 13:4.
MACHAIRA, the Greek word used in Romans 13:4, means a short sword worn on the belt, a dagger. This is not the instrument used for decapitation, but was used as a metaphor for the authority of the courts to inflict punishment in general.
Also, the word execute is not in the original Greek scriptures of this verse. The word execute has been inserted by the translator into the Authorized King James Version to provide a verb so the sentence makes sense in English. The Greek original does not have this verb. The English translation uses it as a synonym for bring or inflict. Because the word "execute" is not in the original Greek but is inserted by the English translators, it appears in italics in most editions of the Authorized King James Version.
Given these two facts of the original Greek of the Scripture verses, the verse in Romans 13:4 makes complete sense in English without the death penalty.
But if thou do that which is evil, be afraid; for government beareth not the power of judicial punishment in vain: for it is the minister of God, a revenger to carry out wrath upon him that doeth evil.
The verse is a mandate for retributive punishment on evildoers; but it contains no mandate for the death penalty. Rather, it supports the power of legitimate government by judicial authority to impose punishment for crimes.
You also quote Genesis 9, the so-called Rule of Blood as God's mandate for capital punishment. That verse reads:
"Whoever shed the blood of man, by man shall his blood be shed; for in the image of God has God made man." New International Version This verse is included in God's blessing of Noah and his family. Genesis 9:1-7
A quick reading of this verse without study could create the impression that the Rule of Blood is God's command that the entire world must use the death penalty; however, there are some major problems with that conclusion.
First, the text is in poetic form which was never used for biblical law.
Second, American Christians only intend to treat this as God's command for capital punishment in the case of first-degree murder. But if these verses are actually God's command to execute those who take human life, there is no basis for any limitation in the text itself. If God is commanding the use of executions in these verses, then their plain reading seems to cover all taking of human life: accidents, negligent homicide, even self-defense. To my knowledge, no Christians in America support such broad mandate for the application of the death penalty under the Rule of Blood. Yet, there is no Scriptural basis for applying it at all unless it is unlimited. There is no intellectual integrity in claiming it is God's mandate and then rewriting it to our liking.
Third, there is no rational basis to explain why the words in the Rule of Blood are God's explicit command to be followed literally, but the other portions of this set of verses, called the Noahic blessing, are not to be taken literally or treated as binding law: e.g., the prohibition on consumption of rare meat, or the statement that any animal which kills a human must be executed.
Finally, if the Rule of Blood is indeed God's command, God's perfect will, that anyone who kills another human being must be executed, God would surely apply this uniformly because God is infinitely just. Consequently, a prominent first-degree, premeditated murderer after the blessing of Noah's family but before the handing down of the Mosaic Law would have to be executed.
What does the Bible report as God's punishment for the most significant and prominent first-degree murderer during that period, under the Rule of Blood?
That person in the Bible is none other than Moses. And God deals with Moses the same way God dealt with Cain: banishment from society. Our modern term for such banishment is prison.
God seems quite consistent in the biblical record of His dealings with Cain and Moses. And He did not execute either one.
You also have used the Crucifixion of Jesus Christ as biblical support for the American death penalty. You are not alone. Many pro-death penalty people of biblical faith like to quote the following passage from the Gospel of John as biblical proof that Jesus supports the death penalty. I used to quote it for that reason as well. The scene is the trial of Jesus before Pilate:
So Pilate said to him, "Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?"
Jesus answered [him], "You would have no power over me if it had not been given to you from above."
The pro-death penalty biblical argument stops right there and fails to quote the rest of what Jesus said. The entire exchange reads as follows:
So Pilate said to him, "Do you not speak to me? Do you not know that I have power to release you and I have power to crucify you?"
Jesus answered [him], "You would have no power over me if it had not been given to you from above. For this reason the one who handed me over to you has the greater sin." John 19:10-11
This full text can hardly be claimed as Jesus' support for capital punishment. Sin is not the word used in Scripture to describe an act that is virtuous. In fact, the Scriptures tell us that Pilate's reaction was based upon what Jesus said:
Consequently, Pilate tried to release him." John 19:12
The execution of the innocent is no small issue for biblical Christians. Exodus 23:7 warns us not to be involved with the execution of the innocent. Jesus Christ warns us in the verses quoted above not to be involved in the execution of the innocent.
Yet, as noted in the U.S. Supreme Court majority opinion in Marsh v. Kansas, authored by pro-death penalty Justice Clarence Thomas, abolition of the death penalty in the U.S. is the only way to avoid the execution of the innocent. (Slip opinion at p. 17) In a concurring opinion, Justice Scalia attacks any concern about execution of the innocent. First, he implies that such a concern would in fact end the death penalty in the U.S. Then he says: "Like other human institutions, courts and juries are not perfect. One cannot have a system of criminal punishment without accepting the possibility that someone will be punished mistakenly. That is a truism, not a revelation." (Concurring opinion, at p. 19)
Such a truism when the penalty is years in prison may not rise to the level of biblical condemnation. But as shown above, that truism is soundly condemned by Scripture when the penalty is death.
Those pro-death penalty positions of Justices Thomas and Scalia cannot be supported as biblical positions. Those are mere political positions. The Bible rails against the execution of the innocent.
True scholars of the Bible know this. On May 22, 2008, I appeared on a radio show on Inter-Faith Voices opposite Dr. R. Albert Mohler Jr., President of the Southern Baptist Theological Seminary in Louisville, KY. The moderator addressed him with the first question:
Moderator: "Just to clarify your position, do you argue that a state or a nation must have the death penalty or that it is morally permissible if it so chooses?"
Dr. Mohler responded correctly:
"… I would not say that it is absolutely mandated that a society must do this. But certainly it is permissible.…
In his next answer, Dr, Mohler, went on to qualify that permissibility:
Moderator: "So, you would see it [the death penalty] as preferable, perhaps?"
Dr. Mohler: "Yes. With all the conditions being met for the penalty to be just in its application. With all the right kind of structures for the right conducting of trial and the establishment of guilt and all the rest."
Dr. Mohler's answer was exactly correct. The problem is that with respect to the U.S. death penalty those conditions are not met, the right kind of structures do not exist, and the biblical standard of absolute certainty of guilt is not the standard for execution in any U.S. system: federal, military or state.
Mr. Michaels, my biblical studies in this area led me to actually reconstruct the death penalty in the Bible the way a lawyer would-procedural and substantive law. I identified 44 absolute legal requirements of the biblical death penalty in order to comply with the dictates of Scripture. Then, I took the American death penalty and compared it to the list. We are zero for 44!
The only possible conclusion based upon what is actually in the Bible and the Scriptural requirements for permissible use of the death penalty is that we cannot support the U.S. death penalty with the Bible. There is a death penalty in the Bible-but it has nothing to do with what we are doing in America. And we cannot use the Bible to support the American death penalty.
I would not expect you or anyone else just to take my word for it. That is why I wrote the scholarly book: The Biblical Truth about America's Death Penalty. It is available on Amazon. Please read it and then I look forward to your questions and your comments.
My dear Christian friend, God bless you, protect you and keep you strong.
Dale S. Recinella, J.D., M.T.S.
Catholic Lay Chaplain
Florida Death Row
Franky Carrillo, celebrating upon his release from prison.
A man who served 20 years in a California prison for a drive-by killing he did not commit was releasedlast week after eyewitnesses recanted their testimony and a judge overturned his conviction. The case of Francisco Carrillo highlights the deleterious effects eyewitness testimony can have on a defendant's chance of receiving justice. Though jurors tend to weigh eyewitness testimony heavily, more wrongful convictions are caused by misidentification by eyewitnesses than by all other factors combined.
In 1991, Scott Turner was a teenager and a member of the Neighborhood Crips gang. When faced with a "six-pack" of photos from the police after witnessing his friend's father shot dead in front of him, Turner identified rival gang member Francisco "Franky" Carrillo as the perpetrator. It was not until six months later that the other five teenaged boys who witnessed the crime were asked to identify the man, well after Turner had shared with his cohort which photo he selected. Dameon Sarpy, the victim's son, as well as Turner and three of the four other witnesses recanted earlier testimony in which they had all accused Carrillo with varying degrees of certainty.
The circumstances of Carrillo's case exemplify many of the issues that surround prosecutors relying heavily on eyewitness testimony. In what are considered the "system variables" affecting identification (those the criminal justice system can control), police procedures can and do contribute to misidentification. Law enforcement agencies frequently ask eyewitnesses to identify perpetrators from a six-pack, or six mug shots grouped on a page; witnesses often wrongly assume the perpetrator must be among the six options (not always because of instructions they may or may not receive), so many witnesses thrust into this situation engage in "relative judgment," in which they pick the individual that most closely resembles their memory of the perpetrator. This effect is exaggerated when police employ the "show-up," by presenting a witness with a suspect they've detained, sometimes in shackles surrounded by officers or in the backseat of a squad car. Law enforcement organizations argue that the show-up enables them to quickly release a suspect if he is not involved, but it is a natural inclination for a witness to assume guilt in such a situation, whether the suspect is a known gang member, a star athlete, or their neighbor. Not necessarily out of malice, but subconsciously or in an effort to close a case, law enforcement officials can also offer witnesses verbal suggestions or non-verbal cues that affect their memory of the event and perpetrator.
Witnesses have been known to change their description of a perpetrator after learning about a particular suspect, or to offer hesitant identifications from lineups only to assert certainty in court. The jury deadlocked in Carrillo's first trial, when Dameon Sarpy testified that he was "pretty sure" Carrillo was the shooter. Sarpy testified with confidence in Carrillo's next trial, which resulted in his conviction and two life sentences. Two decades later, Sarpy admitted that Scott Turner had told him whom to select, and Turner apologized in court and asked for Carrillo's forgiveness. After the recantations and a dramatic reenactment of the crime on a dark street in Lynwood, Judge Paul A. Bacigalupo was able to determine Carrillo's conviction had been wrongfully handed down.
Memory distortion in eyewitnesses can be caused by innumerable factors, however, not limited to those system variables. Included among the "estimator variables" (those outside the control of the criminal justice system) are distractions like a gun (called weapon focus) or inclement weather, lighting and location of the crime, race (particularly when a witness is of a different race than the assailant), and the stress felt during a crime, especially when the threat of violence is high. It is safe to say memories don't exist in isolation, but rather among other memories and thoughts and images that can interfere with one another. Memory is far from sacrosanct, yet juries give overwhelming preponderance to eyewitness testimony, which then results in wrongful convictions, just like Carrillo's.
Studies of inmates exonerated by DNA evidence performed by the Innocence Project have found that a full three quarters of post-conviction exonerations involve mistaken eyewitness identification testimony. As for its role in capital punishment, the Center on Wrongful Convictions studied eyewitness testimony in the cases of 86 defendants sentenced to death, but later exonerated, and found that misidentification played a major role in convicting more than half of them, and that eyewitness testimony was indeed the only evidence used against 38 percent of the defendants.
Certain safeguards can and should be put in place to ensure, for instance, that the composition of a lineup reflects the witness' description of a perpetrator, and does not allow the suspect to noticeably stand out. Officers administering photo and live lineups should be unaware of the suspect's identity - misidentification is drastically reduced when tests are administered blind, so to speak. Witnesses ought to be instructed thoroughly and made aware that the perpetrator may not be included among the lineup. Additionally, presenting suspects sequentially, and not all at once, has been shown to counteract the relative judgment witnesses engage in when faced with a select group of possible suspects. After identification, a witness should state their level of confidence in choosing one suspect, and the entire proceedings ought to be recorded from beginning to end, so the fallibility of memory may play a less significant role beyond the initial identification. By employing these precautions, we may slightly correct for our impressionable memories and keep more innocent people from landing in prison or dying at the hands of the state.
Moments after being released from a Los Angeles jail on March 16th, Franky Carrillo thanked his legal team (full disclosure: Ellen Eggers, all-star attorney with the state public defender's office, is on the DPF board of directors), and offered this understated, but apt summation, "It's been a long journey. Initially it started with an injustice, but finally justice has prevailed, and I'm excited," presumably to start his life after our justice system took it away so callously.
Innocent people who find themselves accused of crimes rarely expect prison time and generally trust in the system to mete out justice fairly, but those without a crack legal team and a sympathetic judge, like Carrillo 20 years ago, may very well find it difficult overcoming long entrenched flaws in our justice system.
Posted by John MacGregor, Guest Blogger on March 16th, 2011
Earlier this week we noted
the mounting difficulty states are having procuring lethal injection drugs
after pharmaceutical companies began deliberately pulling their products off
the market to ensure they wouldn’t be used in executions.For Georgia this crisis escalated today when
their cache of lethal injection drugs was raided by the DEA after allegations
came to light that the Department of Corrections was possibly not in compliance
with regulatory laws when it imported its shipment of the sedative thiopental.
Given the dwindling supply of
the drug in response to the de facto drug company boycott, the Department of
Corrections had to take extraordinary measures to procure it – contacting a
foreign company directly to cut a deal.The Department wired the company $340.41 in exchange for 50 vials of the
sedative, but neither party declared the shipment to the DEA, possibly
violating the Federal Controlled Substance Act.
In a macabre way, it is
almost comical how far out of our way we are willing to go to kill our
inmates.Should we pause to reconsider
the death penalty when nearly every drug company – the only entities that could stand to profit from an execution – cease
producing thiopental in protest of capital punishment?Should we reconsider the death penalty after innocent
inmates are exonerated?Or perhaps when
the alternative punishment of life without parole achieves the same goals at a
fraction the cost?On a certain level it
is curious that, to some, the illegal importation of a schedule III drug from
another country makes more sense than abolition.
In 1992, several key organizers in the Watts Community, including myself, organized a peace treaty between warring gangs in Los Angeles that changed the quality of life in our community. You are no stranger to our work in Watts. When Dwayne Holmes, an anti-violence activist from the Imperial Court Housing Projects, was wrongly accused and convicted of a crime he did not commit, you came out of retirement and advocated for his release. As a result, we developed a deep, personal relationship.
In the summer of 1996, my family and I spent several days at your home in Jack London Square. My son Terrell was 11 years old then. I remember him climbing into your loft and listening to you talk about the importance of public safety on your "We the People" radio show. He never forgot that. When we visited the State Capitol for the first time, he urged me to take him to see your picture in the Gallery of Governors. He said to me, "Dad, he's one of the good guys. If he was Governor now, he would help you stop the killing." I said, "Yes he would, son."
On January 10th, 2004, my world changed when Terrell, home from his first semester at Humboldt State University, was murdered. Even though he had never been involved with a gang, he became a victim of the random gang violence prevalent in our community.
The same year my son was murdered, the Attorney General's office released its annual report, Homicides in California. The report presented a disturbing picture of violence among African Americans in Los Angeles County. The African American homicide rate was more than twelve times that of whites and more than three times that of Hispanics. Though African Americans only represented 6.7 percent of the population, they comprised an alarming 32.1 percent of homicide victims in California. Los Angeles County had the second highest murder rate in California. Similar statistics are found in the homicide reports released during your tenure as Attorney General.
Today, there is still a lot of work that needs to be done. Los Angeles has seen a decrease in gang violence and homicide over the past twenty years due to the continued efforts of gang intervention and prevention workers, but we need more programs and services for at-risk youth. Unfortunately, social services like these are usually among the first services thrown on the chopping block during budget crises.
Before releasing your recent budget proposal, you warned that deep cuts to social services would be made across the board. You also promised that everything would be on the table. However, one particular money pit has remained not just unscathed, but also unexamined: the death penalty.
Each year, the death penalty costs California taxpayers $126 million more than it would cost if all of those currently on death row were sentenced to life without the possibility of parole. On top of that, taxpayers will spend $400 million if construction of a colossal new death row housing facility moves forward. All together, we will waste $1 billion over the next five years on the death penalty.
When I imagine how to keep my surviving children and grandchildren safe, the death penalty does not come to mind. Violence prevention, education, mental healthcare, and other social services are what make a real difference in our communities. Let's protect our youth from random violence, especially African Americans growing up in urban war zones, by putting our state's limited resources to better use. Our state budget must reflect our communities' values and needs.
We all know that times are tough and difficult choices need to be made. Governor, please honor Terrell. Prove you're still one of the good guys. Cut California's death penalty.
Posted by John MacGregor, Guest Blogger on March 14th, 2011
Yesterday Ohio became the first state in history to execute
a man using a drug normally reserved for animal euthanasia.Before this execution, states had traditionally
employed a three injection cocktail that would anesthetize the inmate, stop his
breathing, and then stop his heart.In January,
however, the company that produced one of those crucial drugs announced it
would cease distribution.Hospira, the
drug manufacturer, publicly stated that it did not condone capital punishment, and
that since it was impossible to ensure that its drugs would not be used in
executions, it was pulling its product off the market entirely.
Ohio then sought alternatives, eventually deciding to
abandon the three drug approach in favor of a single lethal dose of the barbiturate
pentobarbital.This move, however,
created a row with that drug’s manufacturer, H. Lundbeck: “It’s against everything we stand for,” a
company spokesman said, “we invest and develop medicine with the aim of alleviating
people’s burden.This is the direct
opposite of that.”
The opposition to Baston’s execution didn’t stop there.Peter Mah, the son of Baston’s victim,
publicly voiced his family’s opposition to the execution and capital punishment
in general.Mah said that Baston’s
execution will not bring back his father and will not alleviate his family’s
suffering.The Mah family went even
further, backing up their words with a formal request to the Ohio Parole Board
that Baston’s sentence be commuted to life in prison without parole.Their request was unanimously denied.
In death penalty cases at least someone is supposed to benefit from the execution.Here, however, it appears as though not a
single individual came out ahead.The
drug companies vehemently opposed the use of their products, the victim’s
family actively tried to stop the execution, and the Bastons eventually lost a
family member.Society would have been equally
shielded from any future dangerousness if Baston had instead been sentenced to
life without parole.From what I can
tell, Ohio just spent millions of dollars to go out of its way to do something
with no marginal benefit that no one wanted to do in the first place.
Having celebrated the great victory for human rights in Illinois, we must now mourn and protest the execution in Ohio of Johnnie Baston, carried out despite the generous and courageous request for clemency by the family of his victim, Chong-Hoon Mah.
Much news coverage is focusing on the novel pharmacology of this state killing: a single-drug protocol using sodium pentobarbital, often favored as an agent in animal euthanasia. While the question of how best and most "humanely" to cold-bloodedly kill a subdued prisoner in fact highlights that there is no right way to do the wrong thing, let's focus instead on the people whom Illinois Governor Pat Quinn embraced so movingly in his statement yesterday, but whom the Ohio Parole Board and Governor John Kasich disregarded in their lethal decision: the victim's family.
Chong Hoon-Mah, a South Korean journalist who immigrated to the United States and became the owner of a wig store in Toledo, Ohio, was brutally murdered during an armed robbery of his store in 1994. His death by a bullet to the head at point-blank range was described as an "execution-style murder."
But his son, Peter Mah of Chicago, and other members of his family didn't want the added tragedy of a new premeditated killing: that of the convicted killer, Johnnie Baston. As Mah explained:
"The death of Johnnie Baston isn't going to do anything that's going to bring back our father, give us any closure or gratification."
Peter Mah accordingly signed an affidavit as a representative of his family asking that Baston's death sentence be commuted to life imprisonment. At the clemency hearing this February, Ohio prosecutor Mary Sue Barone, who helped convict Baston of the crime in 1995, spoke on behalf of the Mah family:
"I have the utmost respect for anybody who could be so magnanimous and big-hearted and full of faith to rise above what the popular faith would be: Go get 'em, an eye for an eye."
In fact, when members of the public are invited in scientific polls to pause and consider the alternative, the "popular faith" favors permanent imprisonment or life without parole rather than execution, and overwhelmingly so when life without parole is coupled with restitution to the victim's family and society.
As Peter Mah explained earlier this year, he and his family are focused on healing:
"We just try to go on as normally as possible. We discuss this issue every once in a while, but we don't want it to take over our lives again. It seems that it's out of our hands so there's really nothing that we can do now."
These words eloquently express the position of many family members of murder victims against the death penalty who may feel powerless to halt the machinery of state-sponsored homicide.
However, one detail that gives cause for hope and renewed resistance is that Peter Mah is a resident of Chicago's Lincoln Park, where Governor Quinn's historic bill-signing ceremony yesterday has liberated Illinois, the Land of Lincoln, from the specter of more senseless state killings. Together, we are not powerless: can Ohio, and California, be far behind?
Posted by James Brockway, Guest Blogger on March 9th, 2011
Illinois Governor Pat Quinn signed a bill today which made his state the 16th to abolish its death penalty (Take action to thank him now). The bipartisan bill, which passed the state legislature in January, commutes the sentences of Illinois’ 15 death row inmates to life without parole, and reallocates the funding previously slotted for capital defense to law enforcement training and increased restitution for victims’ families.
Quinn’s decision is the culmination of years of public debate that has been raging since at least 2000 when then Governor George Ryan declared a moratorium on executions. For Governor Ryan, the state’s system looked increasingly broken, and the probability that innocents would be executed was too great to keep moving forward with capital punishment absent serious modifications. In the following eleven years, the state created two study commissions and attempted to implement multiple reforms to resolve these concerns, but found that such efforts were both ineffective and too costly. Governor Quinn’s decision marks an awareness of the diminishing returns intrinsic to the already extremely expensive system, as attempts to make capital punishment ‘fair’ were always going to be more costly and less effective than abolition. As Quinn put it, “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.” He went on to note that in a world of limited resources, it was wiser policy to take “the enormous sums expended by the state in maintaining a death penalty system [and spend them] on preventing crime and assisting victims’ families in overcoming their pain and grief.”
Quinn did not make this decision lightly, as shown by the two-month wait between the bill’s passage and his signing it into law. He carefully considered arguments from supporters and opponents, taking a particularly hard look at the feelings of the family members of murder victims. In his statement, the Governor acknowledged the unimaginable heartache that accompanies losing a loved one and made clear that he understood and could not blame families for desiring retribution. His decision to sign the bill, however, was motivated by numerous conversations with families who felt that the death penalty only prolonged their pain and suffering. By ensuring that murderers are locked away for life, Illinois’ policy will help victims avoid years of painful hearings while also providing the state with the funding necessary to prevent similar crimes before they happen.
Illinois decision to abolish should be understood as part of a national trend away from capital punishment, as it is the fourth state in as many years to end its death penalty. New Jersey and New York both removed all their prisoners from death row as of 2007, with New Mexico following suit two years later. Today finds the fewest number of states’ practicing capital punishment since its reinstatement in 1978, and it appears as though the number could drop even lower as several other states are currently considering abolition with bills in various stages of debate in Connecticut, Florida, Kansas, Maryland, Montana, and Washington.
Governor Quinn’s decision should provide inspiration for death penalty opponents nation-wide, as his actions show that there is nothing inevitable about capital punishment. As concerns over the cost and fairness of the death penalty rise, public opinion has swung increasingly against it, suggesting that a post-death penalty America may soon be a reality. Illinois is not the first or last step in the process, but it is an important one nonetheless, as each victory adds momentum to the push for more effective alternatives to capital punishment.