March 20
TEXAS:
Severe mental illness and the death penalty
Over the course of our state's history, people with severe mental illnesses
have faced serious consequences in the criminal justice system. All too often,
these individuals faced capital punishment, a sentence that frequently extends
an already emotionally difficult ordeal for family members, involves years of
litigation and occurs at high financial cost to taxpayers.
The U.S. Supreme Court outlawed the death penalty for persons with intellectual
disabilities and for juveniles - because medical research shows those
individuals do not have the same mental capacity as fully-functioning adults.
People experiencing symptoms of severe mental illnesses are clearly in the same
category and should be treated the same way.
Assessing capital punishment in these unique and infrequent cases disregards
the growing scientific consensus that severe mental illness can significantly
impair one's ability to make rational decisions, understand the consequences of
one's actions and control one's impulses. The diagnosis process is lengthy,
detailed and accurate. The capital punishment approach sweeps aside our
collective responsibility to provide adequate care options for persons with
mental health disabilities.
In January, the Texas House Select Committee on Mental Health released its
interim report and recommendations. The report acknowledged "an estimated 30
percent of inmates have one or more serious mental illnesses." To address the
issue of individuals with serious mental illness, one must broach the complex
relationships between the mental health community and the criminal justice
system.
It is clear that a lack of access to treatment can directly result in costly,
non-therapeutic criminal justice system involvement. Individuals who are guilty
should be held accountable for their actions, but we propose that individuals
who qualify for the severe mental illness exemption from the death penalty
should be subject to criminal prosecution, and if convicted, should serve terms
of life without parole.
Our proposed exemption would not apply to a broad range of individuals. Only
those with medical diagnoses such as schizophrenia, schizo-effective disorder,
paranoia and other psychotic disorders, bipolar disorder, obsessive-compulsive
disorder or depression should be considered. It would apply on a case-by-case
basis; a judge or jury would consider all of the evidence to determine whether
a person had a severe mental illness with active symptoms at the time of the
crime.
When individuals with severe mental illnesses enter the criminal justice system
and are not appropriately diverted to treatment, the state runs the risk of
executing innocent people. Individuals with severe mental illnesses run a
higher risk of being executed, typically after bending to police pressure,
firing their counsel and representing themselves or refusing to help with their
own defense. A 2012 study found that approximately 70 % of wrongfully convicted
defendants with mental illness confessed to crimes they didn't commit. This
compares to only 10 % of defendants without a mental illness.
Mental illness is not a choice. We as a society have already answered the
question of how to address persons with severe mental disabilities as it
relates to the criminal justice system. Our challenge nationally, and as a
state, is to ensure this approach is now reflected in all aspects of the law.
Toni Rose, State representative, District 110
(source: Texas Tribune)
ALABAMA:
Lawmakers to vote on death penalty bill
Alabama lawmakers will vote next month on whether to prohibit a judge from
imposing a death sentence when a jury has recommended life imprisonment.
Alabama is the only state that allows a judge to override a jury's sentence
recommendation in capital murder cases.
The Alabama House of Representatives is scheduled to debate the bill on April 4
when lawmakers return from a 2-week spring break. The Senate has already
approved the measure.
The bill is 3rd on the proposed debate agenda for the day.
According to the Montgomery-based Equal Justice Initiative, since 1976 Alabama
judges have overridden jury recommendations 112 times. In 101 of those cases,
the judges gave a death sentence.
The legislation would only affect future capital cases, not inmates currently
on Alabama's death row.
(source: Tuscaloosa News)
ARKANSAS:
Arkansas's Cruel and Unusual Killing Spree
Arkansas's plan to execute 8 men in 11 days next month is a recipe for
disaster, one entirely of the state's making.
Although the state has not put anyone to death since November 2005, it now says
that it must execute 2 people per day on April 17, 20, 24 and 27 because its
current supply of midazolam, 1 of its 3 execution drugs, will expire at the end
of the month.
This will be the fastest spate of executions in any state in more than 40
years, placing extraordinary pressure on the execution team and increasing the
risk of errors. What's more, the state's rationale for the schedule - the
expiration date on its supply of midazolam, a common sedative - is faulty,
because the drug shouldn't be used in executions in the first place.
According to 16 pharmacology professors who signed an amicus brief for the
Supreme Court, there is "overwhelming scientific consensus" that midazolam is
incapable of inducing the "deep, comalike unconsciousness" necessary to ensure
a humane and constitutional execution. (We have consulted with lawyers working
on a number of the midazolam cases.)
In several botched executions over the past several years, midazolam did not
perform as intended or caused prolonged suffering before finally killing the
inmate. When Alabama executed Ronald Smith in December, he struggled for 13
minutes after the execution team administered midazolam. Mr. Smith's chest
heaved, and he gasped and coughed and clenched his fist before the 2nd drug
paralyzed him.
After Ohio's execution team gave Dennis McGuire midazolam in January 2014, he
struggled and gasped for air. Witnesses said he made snorting and choking
sounds until he died, almost 30 minutes later. A federal court blocked the
state from continuing to use the drug, finding that midazolam will create "a
substantial risk of serious harm."
Joseph Wood responded similarly during his July 2014 execution in Arizona -
except that he gasped and heaved for almost 2 hours, even though he received 15
times the supposedly lethal dose of midazolam. In response to this episode and
to litigation, the Arizona Department of Corrections announced in December that
it would never again use midazolam in an execution.
The execution of Clayton Lockett by Oklahoma in April 2014 was particularly
gruesome. A doctor and a paramedic struggled to set 2 IVs in Mr. Lockett's
veins and eventually put 1 in a vein in his groin. 10 minutes after the doctor
injected him with midazolam through that vein, he declared Mr. Lockett
unconscious. But the IV became dislodged, and the next 2 drugs administered
went into surrounding tissue instead of his bloodstream.
Mr. Lockett regained consciousness, which indicated that the midazolam had not
kept him insensate to the pain of the subsequent drugs, and began to writhe and
yell. It took 40 minutes for him to die.
Mr. Lockett's execution is a cautionary tale, not only about the failures of
midazolam as an execution drug, but also about the perils of performing
executions back to back. Oklahoma had planned to execute an inmate named
Charles Warner the same day as Mr. Lockett, but canceled the 2nd execution
after the disastrous outcome of the 1st.
Investigators from the Oklahoma Department of Public Safety subsequently
interviewed the execution team and found that several of them commented on "the
feeling of extra stress" for all staff created by scheduling two executions on
the same day. The state's report recommended that executions not be scheduled
within 7 calendar days of one another "due to manpower and facility concerns."
If Arkansas were to heed the warning of Oklahoma's investigators, it would
schedule its 8 executions over 2 months. Instead, Arkansas's execution team,
which has not performed an execution in over a decade and has never performed
an execution with midazolam, faces a daunting and relentless schedule of 2
executions per day, repeated 4 times over 11 days. The pressure on the team
will be immense, and it will make mistakes more likely in a situation in which
there is no margin for error.
There's no need for Arkansas to act so recklessly. While Gov. Asa Hutchinson
has doubted whether the state will be able to get midazolam in the future, the
state has not supported the claim that the drug is unavailable. To be sure,
some pharmaceutical companies, including some of the manufacturers of
midazolam, do not want to be associated with executions and have made their
products unavailable for such use. But other states have obtained midazolam for
executions. Ohio, for example, twice purchased large quantities of the drug at
the end of 2016.
We have seen this before. For years, states have cited concerns about drug
availability to justify extreme secrecy and recklessness in their efforts to
get drugs and perform executions. Arkansas is following this playbook to defend
rushing through 8 executions with a drug that science and experience tell us is
wholly inadequate for the task and has already resulted in gruesome executions.
The fact that Arkansas's supply of midazolam is about to expire does not
justify a rushed execution schedule with a dangerous and unreliable drug. The
need is nonexistent, and the risk is enormous.
(source: Op-Ed; Megan McCracken and Jennifer Moreno are lawyers in the Death
Penalty Clinic at the University of California, Berkeley, School of Law---- New
York Times)
********************
There is no compelling reason for revenge
Few things seem so clear: We ought not kill other people without a compelling
reason to do so.
Most of us agree with this; what divides us is the definition of a compelling
reason. If a scary man who says he means to do you harm is coming at you with a
gun or a knife, you might be justified in shooting him. You can defend
yourself, your family, or another person. In wartime, soldiers kill on behalf
of nations. Some wars need to be fought.
But take a man from a cage, strap him to a gurney and pump him full of
chemicals until his heart stops? That's unnecessary and unworthy of a sober
nation. That is a retributive act, an attempt at cosmic balancing of accounts
better left to higher authority. Society deserves better.
I understand the other side well enough to argue for it. The death penalty
exacts an ultimate, awesome price and respects the majesty of the moral order.
Some crimes are so heinous that life in prison seems an inadequate punishment;
there are some crimes that cannot be countenanced. Obliteration is a fair
tariff for monstrous acts.
The constitutionality of the death penalty is not in serious doubt; it is
explicitly addressed in the Fifth Amendment that holds no person shall be
"deprived of life ... without due process of law." We've no legal impediment to
execution, only moral qualms and pragmatic problems.
If we could somehow ensure that it is genuinely reserved for the worst
offenders, applied fairly and doesn't disproportionately affect the poor and
powerless, maybe we can justify it. If it actually provides a measure of
comfort to the families of victims or prevents other murders, we might consider
it worth the costs.
But it's doubtful it does any of these things. Our justice system is flawed;
money buys a better class of defense. Innocent people have been convicted and
executed in this country. Dozens have been exonerated while on death row.
Politics cause trials to become theater. And prosecutors are often elected
officials with an incentive to play to the crowd--to present themselves as
fearless avengers of society.
While no one can blame a grieving family for longing for the catharsis they
imagine the death of a murderer might bring, there's evidence that it doesn't
do that. A 2007 University of Minnesota study by anthropology and sociology
professor Scott Vollum found only 17 % of victims' families--styled as
"co-victims"--said the execution of their loved one's killer brought them a
degree of comfort, as opposed to 20 % who said the execution didn't help at
all. This isn't surprising since no one would suggest that they are made whole
by the carrying out of the sentence. As one of Vollum's co-victims said,
"Healing is a process, not an event."
As for the death penalty being a deterrent, there's little reason to believe
murderers will be put off by the possibility of facing the ultimate punishment
at some point in the future. (A 2008 study found that 88 percent of
criminologists reject the idea that the death penalty is a deterrent to crime.)
Most murders are committed out of desperation or in the heat of passion; those
that are coolly contemplated involve many risks that are far more immediate
than being caught and tried and sentenced to death.
While it's instructive to remember murder rates tend to be lower in places
without the death penalty than in places with it, my real objection is that
it's wrong kill people when you don't have to. And we don't have to kill
incarcerated criminals.
Sure, there's always a possibility that if you don't erase a person, that
person might prove troublesome or dangerous in the future. Killing them ensures
they won't commit any more crimes.
And that also eliminates any possibility of them making future contributions to
society. Yes, the possibility is remote, but we should also consider the
effects of the death penalty on the innocent people--family, friends, attorneys
and others--in the condemned's life. Last year sociologist Michael Radelet of
the University of Colorado at Boulder compared "the retributive effects" of the
death penalty on these folks and concluded "that the death penalty's added
punishment over [life without parole] often punishes the family just as much as
the inmate, and after the execution the full brunt of the punishment falls on
the family. This added impact disproportionately punishes women and children."
This, he writes, undermines "the principle that the criminal justice system
punishes only the guilty and never the innocent. The death penalty affects
everyone who knows, cares for, or works with the death row inmate."
It affects all of us. It makes our world coarser, more brutal.
There's no compelling reason to do it.
(source: Opinion, Philip Martin, Arkansasonline.com)
USA:
Capital punishment is in decline
The numbers tell the story: Capital punishment in the United States is on life
support, hanging on in the 2 % of counties that administer more than 1/2 of all
executions, but losing its grip in wide swaths of the country. Whether the
Supreme Court or attrition will deliver the final blow is unclear, but
anti-death-penalty advocates believe it's possible that the day is coming when
it will be relegated to the ash heap of history.
Consider the hard facts: 30 death sentences were handed down last year with 20
executions carried out - a 90 % decline since the height in the 1990s when
several hundred people were executed each year.
Only 5 states carried out executions in 2016: Georgia (9), Texas (7), Alabama
(2), Missouri (1) and Florida (1). As of this writing, 5 inmates have been
executed in 3 states (Texas, Missouri and Virginia) in 2017, and 21 executions
are scheduled in 4 states, including 5 in Arkansas over a 10-day period in
April. Those 8, which were set in early March, represent a grim race to carry
out the lethal injections before 1 of the approved drugs becomes unavailable or
expires. Counting planned executions that have been stayed or are to be
rescheduled, the current projected total for 2017 is 35 in 5 states.
In the last decade, 12 states have either abolished the death penalty or
imposed a moratorium on its use. Public sentiment is shifting toward
eliminating the death penalty altogether.
The national trend in declining execution rates "is enormously important, and
it's not just that the number of death sentences is falling," said Jessica
Brand, staff attorney at the Texas Defender Service and a member of the legal
advisory council of the Harvard Fair Punishment Project. "I think there are a
couple of reasons. One, we know we've probably executed innocent people, and
people care about that. We also see people with serious mental illness, and
disproportionately people of color [being sentenced to death], and those
stories resonate with people."
As if to prove Brand's point about executing the innocent, January saw the
157th exoneration of a person on death row since 1973. At the height of its
popularity, in the mid-1990s, 80 % of Americans supported the use of the death
penalty, according to a Gallup poll, a figure that has been slowly dropping
each year since. A 2014 Public Policy Research poll found that Americans
(across gender, political, racial and geographic lines) disapproved of using
the death penalty on the mentally ill by a margin of 2 to 1. A 2015 Pew
Research Center poll found that 71 % of Americans think there is some risk of
putting an innocent person to death, while 52 % say minorities are more likely
to be put to death than whites. As a corollary, blacks make up 42 % of those on
death row, while the 2010 U.S. census showed blacks to make up 13.6 % of the
general population.
The Supreme Court outlawed the use of the death penalty for the intellectually
disabled in 2002 and for minors in 2005; it has not ruled on the use of the
death penalty for the mentally ill, even though the U.S. Department of Justice
estimated in 2006 that 10 % of inmates in state prisons had a severe mental
illness; the rate in the general public is 4.1 %. Mental Health America
estimates that at least 20 % of people on death row have a severe mental
illness.
Even in Texas, which is often considered the epicenter of capital punishment,
the tide is turning. Voters in Harris County, home to the city of Houston,
elected a new district attorney last November who has indicated an openness to
using capital punishment less. Recent polling in the county showed support for
the death penalty at 27 %. The state is also in the midst of a demographic
change and will soon be majority non-white, which will have implications for
juries in a place that has historically used the death penalty
disproportionately against defendants of color.
Brandon Garrett, Justice Thurgood Marshall Distinguished Professor of Law at
the University of Virginia School of Law, recently co-authored a data-rich
report to be published this spring in the Journal of Criminal Law and
Criminology. Among its major findings: death sentences are strongly associated
with dense, urban counties with large black populations (such as Houston's
Harris County or Los Angeles County), and homicide rates are unrelated to death
sentences. That is, places with more murders do not necessarily return more
death sentences.
"There is no connection between death sentencing and murders," said Garrett,
who is also a member of the legal advisory council at the Harvard Fair
Punishment Project. But "there is a really persistent pattern of racial
discrimination [in the application of the death penalty]. It's really ugly. It
looks biased. It looks arbitrary."
It also usually entails having bad legal representation, Garrett said. In fact,
in a forthcoming book, Garrett details how relying on court-appointed
defenders, as opposed to having a state-wide office for capital defense, is a
predictor of death sentencing in a state. "Poor quality indigent defense in
death penalty cases is a common feature of the counties that long accounted for
most death sentences," he said.
"Overuse of the death penalty is a symptom of greater flaws in the criminal
justice system," said Robert Dunham, director of the Death Penalty Information
Center in Washington, D.C. "You see that where you have aggressive use of the
death penalty, you tend also to see higher rates of police violence against
civilians, higher rates of overcharging of juveniles, higher rates of racial
disparity in the exercise of peremptory challenges [of potential jurors]. When
you have a DA [district attorney] who is aggressively pursuing the death
penalty, you tend to see someone who is not exercising choices in a way that
would produce a fair and equitable criminal justice system."
Fair and equitable has of late been on the mind of Justice Stephen Breyer, the
leading opponent of capital punishment on the Supreme Court. Breyer wrote in a
dissent last December after the court turned down 4 petitions to overturn death
sentences, "Individuals who are executed are not the 'worst of the worst' but,
rather, are individuals chosen at random on the basis, perhaps of geography,
perhaps of the views of individual prosecutors, or still worse on the basis of
race."
The 8-member court has 5 justices with qualms about capital punishment, but any
justice appointed by President Donald Trump to replace the late Antonin Scalia
will likely be conservative and pro-capital punishment, as might any future
appointments to replace Justices Ruth Bader Ginsberg, Anthony Kennedy, and
Breyer, who are all past retirement age.
Neil Gorsuch, Trump's nominee to fill Scalia's spot on the court, has not shown
a tendency to grant relief in the use of the death penalty. Yet, as a judge on
the U.S. Court of Appeals for the 10th Circuit Court, he was part of a 2007
effort to improve legal representation for low-income defendants in death
penalty cases. The same year, according to The Washington Post, he met with
highly regarded lawyers in Oklahoma to teach them how to present death penalty
cases before an appellate court and to try to persuade them to take on more
such cases.
Voters in Shreveport, La., Birmingham, Ala., and Tampa and Jacksonville, Fla.,
all ousted incumbent district attorneys in the November elections and installed
what Dunham called "reform candidates," which death penalty opponents are
interpreting as signs of a diminishing desire among voters for the ultimate
punishment. Whether that's the case is not clear, but it does touch upon a
related issue, that of the enormous power the district attorney wields in these
cases, every step of the way, including who gets charged, what they're charged
with, whether juveniles are charged as adults, and the racial composition of
the jury. Jury composition matters because all-white juries are more likely to
convict defendants of color, and district attorneys who aggressively pursue the
death penalty are more likely to strike jurors of color from the jury pool.
In many of the counties that carry out the most executions, "the prosecutorial
overreaching is accompanied by a judicial failure to rein in the prosecutor,"
said Dunham, "and the justice system in many of these locations enables it by
enfeebling the criminal defense function, appointing defense lawyers who have a
history of not zealously representing capital defendants, or a history of
denying defense counsel adequate resources to investigate cases fully and to
retain and present necessary experts."
Analysis of sentencing trends by the Death Penalty Information Center shows
that when there are major declines in the number of death sentences in those 2
% of counties, it tends not to be because the murder rate has also dropped, but
because there is a new prosecutorial administration that is pursuing the death
penalty with less zeal. In fact, the 5 southern California counties that rank
in the top 16 counties in terms of the death penalty have neither the highest
nor the lowest murder rates.
"The murder rate doesn't justify pursuing the death penalty as frequently as
they do, and the frequent use of it doesn't drive the murder rate down. It
demonstrates the arbitrariness and the fact that the death penalty does not
deter," Dunham said. "And it again demonstrates that the driving force behind
the American death penalty is the local prosecutor. It's not what you did, it's
who was the DA where you were accused of doing it."
Garrett's research reaches the same conclusions, showing "just how
counterproductive over-punishment is," he said, adding, "I think it's an
exciting time. On the local level, people understand over-incarceration has to
end."
The movement away from the death penalty is not partisan, said Dunham. "There
is an emerging conservative movement away from it," he said, as well as among
evangelicals and millennials.
"More and more fiscal conservatives and more and more people who denominate
themselves as pro-life have been coming out against the death penalty," Dunham
said. "If you value human life, and you think government should not be in the
business of taking life, the facts are making it increasingly clear that you
cannot carry out capital punishment without a substantial risk that somebody
who is innocent is going to be caught up in it."
31 states still have capital punishment, including 3 that voted in favor of the
death penalty in November: An abolition effort in California was defeated,
Nebraska voters restored capital punishment to the books following a 2015
legislative repeal, and the death penalty was added to Oklahoma's constitution
as a legal form of punishment. The Catholic church threw its weight behind
abolition in all three cases, and many were disappointed.
Brand, with the Fair Punishment Project, didn't necessarily see those votes as
a setback, though. "In California, voters were almost evenly split. That's
enormous progress. If that vote had taken place 10 years ago, I don't think
you'd have seen a split," she said, adding that the death penalty "is on the
way out and will soon be a relic of the past. That's where the numbers have
been going."
"What's happening in the states has a feel of inevitability to it," said
Dunham, noting an ongoing bipartisan effort in Washington state to eliminate
the death penalty and the retention of four justices in Kansas who were
targeted for ouster in the November elections by pro-death penalty groups.
Those working in the faith community to abolish the death penalty have taken
several tacks. In Texas, for example, Catholic bishops are working to change
laws about juries, while other groups try to put a human face on the death
penalty through education.
Jennifer Carr Allmon, executive director of the Texas Catholic Conference of
Bishops, said that her group is supporting a bill to eliminate a bizarre jury
instruction law that prevents judges from informing jurors that it takes only 1
holdout to return a sentence of life over death. This statute compels judges to
instruct that it requires two holdouts to return a sentence of life, even
though a conflicting statute requires only one. In essence, the law Allmon's
group has targeted for repeal necessitates that judges misinform juries.
"Jurors are broken over this," when they find out afterward that they might
have returned a sentence of life in prison, said Allmon, who noted that judges
are also confounded by it, but find their hands tied by the conflicting
statutes. "It's a juror's rights bill. If a juror is sentencing a person to
death, they have the right to know what their individual capacity is to save a
life."
The bill will be introduced in the legislature in March, and Allmon is hopeful
that it will pass by June.
"I don't understand how any legislature can hear the story and vote against
it," she said. "A vote against this bill is a vote against the truth, separate
from your position on the death penalty."
The Catholic Mobilizing Network to End the Death Penalty, based in Washington,
D.C., works in conjunction with the U.S. Conference of Catholic Bishops to
educate about not just the death penalty, but the criminal justice system and
sentencing in general, including restorative justice.
Karen Clifton, the network's executive director, has found that opinions about
capital punishment change when people hear the human stories of those who are
incarcerated, even visiting those in prison - of whom there are now more than
2.2 million, including state and federal prisoners and those in jails.
"Our whole mission is to educate Catholics on the church's teaching, to connect
this as a pro-life issue and the dignity of the human person. The church
teaching says that any harm that occurs, the punishment needs to be
retributive, but it also needs to be restorative. That's what we're teaching,"
said Clifton. "Facts and numbers are good, but we need to do the moral
compelling of people. This is part of our faith. We can be restoring and
forgiving, no matter how egregious the act that was done," she said. "We're not
soft on crime - it's harder: making people acknowledge what they've done,
asking forgiveness, and then making restitution. Restoring the community as
best they can for the harm that they've done."
(source: National Catholic Reporter)
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