2017-03-31 13:35:06 UTC
Texas Executions May Slow Down, But Won't Stop
Texas executes more people than any state, but a U.S. Supreme Court ruling this
week that spared the life of a mentally disabled Texan and proposed legal
reforms are forcing it to confront its fondness for capital punishment.
Under the Texas law of parties each person involved in a crime can be charged
and convicted for it, no matter if they were an accomplice or the perpetrator.
The law came up in the capital murder trial of Erica Yvonne Sheppard, who was
sentenced to death in March 1995. The jury heard evidence that Sheppard, then
19, and co-defendant James Dickerson, snuck inside Marilyn Sage Meagher's
apartment in June 1993, intending to steal Meagher's car keys.
Meagher refused to give up the keys and Dickerson told Sheppard to find a
butcher knife. She did, and held Meagher down while Dickerson cut her 5 times,
then bashed her with a 10-pound statue.
Trying to get her sentence reduced to life in prison, Sheppard, now 43, argued
in a federal habeas petition that her trial attorney erred by not objecting
when the judge, in explaining the law of parties, incorrectly told jurors that
a bank robber and getaway driver would both be guilty of robbery and each
should get the same punishment.
U.S. District Judge Nancy Atlas agreed in a March 29 order denying Sheppard's
habeas petition that Sheppard's trial judge got it wrong.
Atlas cited Earl Enmund v. Florida, in which the U.S. Supreme Court ruled in
1982 that the Eighth Amendment prohibition of cruel and unusual punishment did
not permit the death penalty for Enmund because he was the getaway driver for 2
people who robbed and murdered an elderly couple, but he did not kill nor
intend to kill the couple.
But Atlas found Sheppard's culpability sufficient to hold her responsible for
the murder, even if the trial judge misled the jury.
"The evidence establishes that Sheppard was an active, not merely peripheral,
participant in the robbery and murder. Therefore, the trial court's erroneous
statement as to punishment on the law of parties was not relevant to Sheppard,"
Texas State Reps. Terry Canales, D-Edinburg, and Harold Dutton Jr., D-Houston,
have introduced legislation that would change the law of parties, banning
prosecutors from pursuing the death penalty for accomplices in capital felony
cases who were not directly involved in the crime.
A bill proposed by state Rep. Eddie Lucio, D-Brownsville, would undo another
capital punishment law that favors prosecutors.
In Texas death penalty cases, a jury must answer 3 questions: Is the defendant
a continuing threat to society? If the defendant was not the actual killer, did
he or she intend to kill someone or anticipate death? Is there mitigating
evidence in their background, character, or in the circumstances of the crime,
sufficient to spare their life?
To sentence a defendant to death, a jury must unanimously answer yes to the
future threat and intent to kill questions and no to the mitigating evidence
State law also says that 10 or more jurors must agree to answer the special
questions in the defendant's favor to give them a life sentence.
Critics say that text is misleading at best, at worst a flat-out lie, because
defendants must be given a life sentence if 1 juror decides they don't deserve
to be executed, but there's a catch: Judges and attorneys can't tell jurors
that under state law.
Lucio's SB 1065 would benefit defense attorneys because it would remove the bar
against judges and attorneys telling jurors that one of them can prevent a
death penalty, and nix the de facto rule that 10 or more jurors have to agree
on 1 of the 2 special questions to recommend a life sentence.
Lucio told the Texas Tribune he filed the bill after religious groups told him
about the mandatory jury instructions.
"I was shocked to learn that the instructions in place actually lie to jurors
who are tasked with quite literally making a life or death decision," Lucio
told the Tribune.
The U.S. Supreme Court undercut Texas' willingness to execute mentally
deficient prisoners this week when it blocked the execution of Bobby James
Moore, a 57-year-old African-American, who has been on death row since his July
1980 sentence for fatally shooting a grocery store clerk with a shotgun during
a botched robbery in April that year.
Experts have testified that at age 13, Moore could not differentiate the days
of the week, tell time or understand that addition is the opposite of
The Texas Court of Criminal Appeals upheld Moore's death penalty, ruling that
habeas cases need only consider rules it adopted in 2004 to guide lower courts
in assessing intellectual disability.
The Briseno factors, named for plaintiff Jose Briseno, ask seven questions,
most notably: "Can the person hide facts or lie effectively in his own or
others' interests?" and "Putting aside any heinousness or gruesomeness
surrounding the capital offense, did the commission of that offense require
forethought, planning, and complex execution of purpose?"
The order that established the test cited Lennie, the mentally disabled
fictional character from John Steinbeck's novel "Of Mice and Men," who
accidentally kills a woman by breaking her neck, and as a lynch party descends
on him, is shot in the back of the head by his best friend.
"Most Texas citizens might agree that Steinbeck's Lennie should, by virtue of
his lack of reasoning ability and adaptive skills, be exempt from execution,"
former Court of Criminal Appeals Judge Cathy Cochran wrote.
The Supreme Court's 8 judges unanimously rejected the Briseno test Tuesday, and
in a 5-3 majority opinion Justice Ruth Bader Ginsburg said the Briseno factors
"create an unacceptable risk that persons with intellectual disability will be
executed" and that Texas must adopt standards to measure the mental ability of
death row inmates that is informed by medical experts.
It's the 2nd time this year the Supreme Court has rebuffed Texas' efforts to
execute a person.
In February, the court ordered the Fifth Circuit to hold a habeas hearing for
Duane Buck because a psychiatrist told jurors during Buck's capital murder
trial that Buck is more likely to be a danger because he is black.
Robert Dunham is executive director of the Death Penalty Information Center, a
Washington, D.C. nonprofit clearinghouse for studies and statistics on capital
punishment. While the Supreme Court ruling in Buck will not affect other Texas
death row prisoners, because Buck is the only one Texas is trying to execute
based on a psychiatrist's racist views, its Moore holding has broad
implications, Dunham said.
"Several death row prisoners have already been executed in Texas because of the
Briseno factors," Dunham wrote in an email.
"That should stop. Others have lost Briseno claims in the courts; they will
argue that they should not be executed. Going forward, it will certainly result
in a number of intellectually disabled death row prisoners in Texas obtaining
relief who would otherwise be unconstitutionally executed."
Capital punishment is waning in the United States. A December 2016 report from
the Death Penalty Information Center found that juries issued 30 death
sentences in 2016, down from 315 in 1996. 20 people were executed in the United
States in 2016, the fewest since 1991.
A 2016 Pew Research study found that 49 % of Americans support the death
penalty, the lowest percentage in 4 decades.
Dunham said the Supreme Court's Buck and Moore rulings will further reduce the
death penalty, but not do away with it.
"The decisions this year are more a narrowing of the death penalty around the
edges than anything else. They are significant and they will contribute to the
trend of fewer new death sentences and executions. But they will not, by
themselves, have a blockbuster effect," he said.
4 of the 6 prisoners executed so far this year were in Texas. 21 more are
scheduled to be killed this year, 5 in Texas.
Arkansas is taking heat for its plans to execute 8 men from April 17 to April
27, a schedule state officials say is needed because its stock of 1 of 3 drugs
it uses in its execution cocktail, the sedative midazolam, expires at the end
Arkansas media outlets reported last week that its Department of Corrections
director was having trouble recruiting enough witnesses for the 8 executions,
because of a rule that at least 6 people watch them, to ensure they comply with
The Arkansas DOC did not respond Thursday when asked if it had had found enough
witnesses for the April executions.
(source: Courthouse News)
Colquitt County prepares for potential death penalty case
The Colquitt County Manager is preparing for what could be a death penalty case
against Jeffrey Peacock.
He is accused of killing his 5 friends and burning down their house.
The judge in the case wrote a letter explaining the high costs of pursuing a
death penalty case.
In the letter Judge McDaniel says that it's "his understanding the case is
expected to involve the death penalty."
He said he anticipates it impacting 2018, 2019, and possibly 2020 budgets.
McDaniel suggested putting a specific line in for the costs if this does in
fact become a death penalty case.
District Attorney Brad Shealy is prosecuting the case but has not released a
decision on how they will try the case.
(source: WALB news)
Judge: Killer of West Palm cop Brian Chappell stays on death row
3 decades after the 1988 murder of West Palm Beach Police Officer Brian
Chappell, the lawyers of his killer, Norberto "Spiderman" Pietri, cited a
15-month-old U.S. Supreme Court ruling to try to get Pietri off death row.
It didn't work.
At the end of a hearing that lasted only about a half hour, Palm Beach County
Circuit Judge John Kastrenakes rattled off how Pietri escaped prison, killed
Chappell - who "didn't even get his gun out" - and continued to commit violent
crimes until he was recaptured. Kastrenakes said he was convinced Pietri's
death sentence "was absolutely appropriate."
William M. Hennis III, attorney for the state agency that defends death row
inmates, said the recent U.S. Supreme Court decision requiring unanimous jury
votes to invoke the death penalty should apply to Pietri, whom a jury had
sentenced to death by an 8-4 vote. Kastrenakes noted that the jury unanimously
found Pietri guilty of escape, burglary and murder of a law enforcement
officer, aggravating factors that he said rightly triggered the death penalty.
Assistant Attorney General Leslie Campbell told the judge that courts have
ruled no cases decided before 2002 should be revisited in light of the U.S.
Supreme Court ruling.
But Hennis argued that the "unanimous" standard really should apply to all
cases retroactively. He said after the hearing that whether the 2002 cutoff
"will stand up to federal scrutiny remains to be seen."
Hennis also said after the hearing he wasn't surprised by Kastrenakes' ruling
but would appeal to the Florida Supreme Court.
Pietri, who turned 54 this month, was not in the courtroom Thursday. But dozens
of police officers - active duty and retired - were. They filled virtually
every seat and some stood against the wall. Some had been kids - or not even
born - on Aug. 22, 1988. Some had been there that day, and still remember it
"All I can say is the judge knew his law," said John Conklin, now retired, who
was the lead detective.
Chappell, 31 and in his 6th year as a West Palm Beach officer, had initiated a
traffic stop on Dixie Highway just south of Southern Boulevard and followed the
car as it turned onto a side street, Nottingham Boulevard. As Chappell walked
to the driver side window, Pietri, then 25 and nicknamed "Spiderman" for the
3-inch spider tattoo on his neck, fired once with a 9mm semiautomatic pistol.
"I grabbed the gun, stuck my head out the window and shot," Pietri later
The bullet tore through Chappell's chest. He staggered back, grabbed his
portable radio and spoke his last 4 words: "Officer shot. Officer shot."
Chappell is the last West Palm Beach officer slain in the line of duty.
Pietri had walked away 4 days earlier from the since-closed minimum-security
Lantana Community Correctional Center. And he was caught 2 days later, the day
before Chappell was buried.
Pietri was sentenced to death row on March 15, 1990.
Leaving the courtroom Thursday, West Palm Beach Police Chief Sarah Mooney
called Kastrenakes' ruling "right on the money."
At the time of the shooting, Mooney was starting college, although her future
husband was on the force.
"It's way too long that the family and the guys who used to work with him have
to still keep revisiting this," she said Thursday.
For years, Chappell's parents came to hearings for Pietri. Tom Chappell said in
2006 that the loss of his son "is something we think about every day." Asked if
he could forgive his son's killer, Chappell said, "I would forgive him if he
would bring my son back."
The elder Chappell feared his son's murderer would outlive him, and Pietri did.
Tom Chappell died at 94 in October 2014.
Pietri is 1 of 372 people on Florida's death row and 1 of 7 there who were
convicted for Palm Beach County murders. He is ranked 69th of the 372 in terms
of longevity. The oldest death penalty tenure is 42 years.
On Thursday, Kastrenakes put the long Chappell-Pietri saga in perspective right
at the start of the hearing.
"Here we find ourselves 30 years after Officer Chappell was murdered, and still
discussing whether Mr. Pietri should be subject to the death penalty or not,"
the judge said. "These cases never seem to end."
Man contines to challenge 1981 death sentence----Ian Lightbourne was convicted
in April 1981 of 1st-degree murder in the death of Nancy O'Farrell, 41, a
member of the family that pioneered Ocala's thoroughbred horse breeding
industry. Lightbourne was a former employee of the family's Ocala Stud farm. He
was 21 at the time.
Ian Lightbourne, 57, has been challenging his death sentence for 3 decades.
Defense attorneys Jessica Houston and Suzanna Keffer, of Capital Collateral
Regional Counsel, and prosecutors Tayo Popoola and Brad King met Thursday with
5th Judicial Circuit Judge Robert Hodges to debate whether Lightbourne's death
sentence should be vacated and he be resentenced.
Lightbourne was not present.
Lightbourne was convicted in April 1981 of 1st-degree murder in the death of
Nancy O'Farrell, 41, a member of the family that pioneered Ocala's thoroughbred
horse breeding industry. Lightbourne was a former employee of the family's
Ocala Stud farm. He was 21 at the time.
Lightbourne surprised O'Farrell when she came out of the shower. He raped her
and then shot her in the head with a .25-caliber pistol. His trial lasted just
5 days. He was sentenced to death in May 1981.
Since September 1981, Lightbourne's appeals and challenges of his sentence have
been denied repeatedly by the Florida Supreme Court and other levels of court.
Thursday's hearing was based on a precedent put in place by Hurst v. Florida in
2016. The U.S. Supreme Court ruled that Florida's death sentencing practice,
which only required a majority jury vote in favor of the death penalty, was
unconstitutional. Later in the year, the Florida Supreme Court determined that
a unanimous vote for the death penalty was required. In March of this year,
Gov. Rick Scott signed a state law implementing that practice.
This regulation is retroactive for defendants who were sentenced to death after
June 24, 2002. The date was determined based on another U.S. Supreme Court
case, Ring v. Arizona, which established a defendant's right to have a jury,
not a judge, decide whether the death penalty is acceptable punishment.
Even though Lightbourne was sentenced more than 20 years before June 24, 2002,
his defense attorneys argue that in a hearing held before the Florida Supreme
Court about his sentence in October 2002, the court was technically operating
under an unconstitutional guideline, Houston told Hodges. The Supreme Court
handed down an order based on those hearings in January 2003, according to
Lightbourne's attorneys focused on this technicality and what would be
fundamentally fair in his case to argue their point.
"It is fundamentally unfair that defendants similarly situated will get the
benefit of Hurst where others wouldn't," Houston said. By benefits, she meant
the ability to be resentenced.
But the state's argument, presented by Popoola, focused on the fact that
Lightbourne's case had been decided way before the cutoff date and should
"The fundamental fairness argument has no hold" in Lightbourne's case, Popoola
Hodges, who listened to both sides, seemed to favor the state's argument.
"Every time a court makes a decision on retroactivity, there's always a line
drawn somewhere unless you say, 'we reset the rule for everybody,'" he said.
The defense assured Hodges they were not arguing for a new trial, but a new
sentencing. In Lightbourne's original sentencing, no jury count was recorded.
It was simply entered into court records that the majority decision was that he
should receive the death penalty.
Without a numerical count, Houston said, there is no way to know whether the
decision was unanimous and a resentencing would be able to settle that.
"When you look (at the case) now, it can't possibly be said that at least one
juror would not have voted for life," Keffer said.
Keffer and Houston kept referring to the law that Lightbourne's fate was
decided under as unconstitutional, but Popoola reminded the judge multiple
times that it was not unconstitutional at the time.
Many of the arguments rested on perspective and interpretation of the new
ruling and retroactivity. While the defense wanted Hodges to be more lenient in
the definition of retroactivity and fairness, the state asked him to stick to
the definitions put in place by state law.
Hodges did not rule on the motion to vacate Lightbourne's death penalty at the
hearing, but warned Keffer and Houston he would probably deny their motion.
"The Supreme Court has been very specific," he said.
He told both teams of attorneys that he would consider all the arguments he
heard and would write an order with his ruling next week.
Lightbourne is 1 of 8 Marion County murderers on death row. In January, the
Florida Supreme Court overturned Renaldo McGirth's death sentence, ordering he
undergo a resentencing. McGirth was sentenced to death with an 11-1 jury vote
in 2008 for the murder of The Villages resident Diana Miller.
Florida Supreme Court Reverses Death Penalty For Brandon Bradley
The Florida Supreme Court reversed on Thursday the 2014 death penalty sentence
for Brandon Lee Bradley who was convicted of murdering Brevard County Sheriff's
Deputy Barbara Pill in 2012.
While Bradley's cases was on appeal, the United States Supreme Court issued a
decision in Hurst v. Florida which ruled that a jury sentence for death must be
unanimous. The jury in Bradley's case had only recommended the death penalty by
a 10-2 vote.
Specifically, the Supreme Court held that "the jury in a capital case must
unanimously and expressly find all the aggravating factors that were proven
beyond a reasonable doubt, unanimously find that the aggravating factors are
sufficient to impose death, unanimously find that the aggravating factors
outweigh the mitigating circumstances, and unanimously recommend a sentence of
As a result of the Florida Supreme Cuort's decision, Bradley's case will be
sent back to the trial court in Brevard County for a new penalty phase for a
jury to make findings under Hurst.
The Florida Supreme Court did, however, uphold the guilty verdict.
"It is unfortunate for the family, for our community, for our agency to have to
go through that again," said Brevard County Sheriff Wayne Ivey in a press
conference on Thursday afternoon.
Ivey also drew an apparent contrast of Brevard County's State Attorney Phil
Archer to Orange County's State Attorney Aramis Ayala who is not seeking the
death penalty in another cop killing case.
"Our State Attorney is here with me and I will tell you that I am extremely
proud to not only live but to work in Brevard County - but we have a State
Attorney that actually upholds his oath of office and goes after somebody for
the death penalty - not a State Attorney that in my opinion is a joke for not
going after somebody who killed a cop," said Ivey.
(source: Brevard Times)
What Changes to Florida's Death Penalty Laws Mean for those on Death Row
It's been a year of confusion for Florida's roughly 400 death penalty cases. A
series of court cases called the ultimate punishment unconstitutional, but a
new law rapidly passed by lawmakers and signed by Gov. Rick Scott changes the
state's death penalty to require unanimous juries to hand down a death
The Florida Supreme Court's ruling that any jury with a 10-to-2 supermajority
vote in favor of execution was unconstitutional precipitated the change, which
is the 2nd to Florida's death penalty laws in as many years. In 2016, the
Governor took the death sentence decision out of the hands of judges who, for
decades, had been the arbiter of the ultimate punishment.
The changes to the state's death penalty laws have changed so frequently that
some prosecutors, like Orlando-area State Attorney Aramis Ayala was removed by
Gov. Scott for refusing to pursue the death penalty.
Thursday at 1 p.m., Karen Gottllieb with the Florida Center for Capital
Representation, explains what these changes mean to the prisoners on Florida's
Southwest Florida-area State Attorney Stephen Russell also joins the program to
explain what these changes mean for capital cases from the region, and the
sentences handed down under laws that have now been deemed unconstitutional.
(source: WGCU news)
State to decide on death penalty in Stacey Gray case in May
At a status hearing on Thursday, it was decided that the State of Alabama has
until May to decide on whether they will seek the death penalty against Stacey
Gray, the man charged in the death of 25-year-old Renee Eldridge.
Eldridge was reported missing on July 4, 2015. A few days later she was found
in a creek in Valley, and a few days after that, Gray was captured in
Eldridge's family was in attendance at Thursday???s hearing. They say that the
past 2 years have not been easy for them.
"The past couple of years have been a complete nightmare that we don't think is
going to be coming to an end anytime," Eldridge's Aunt Lisa Bryant said.
"Nightmare is probably not even the best word to describe what we have been
through, her mother here especially."
Eldridge's family is hoping that the state continues with the death penalty
just as they decided to do back in September.
"We are hoping for the death penalty," Bryant said. "We feel that he deserves
the death penalty, and anything less than that is not satisfactory at all. It
is injustice. He took my niece's life. He needs to be put to death."
Until then, the family asks that people remember Eldridge as the beautiful,
young woman she was.
Gray's next hearing is scheduled for May 11.
(source: WRBL news)
TN Supreme Court knocks down death penalty challenge
Tennessee's Supreme Court struck down a legal hurdle to the death penalty this
week, but the years-long stay on executions in the state could continue.
A group of nearly 3 dozen death row inmates is suing Tennessee's Commissioner
of Correction Derrick D. Schofield and Riverbend Maximum Security Institution
Wayne Carpenter, among others, claiming that the state's method of execution is
Stephen Michael West is named as the primary inmate bringing the suit. West was
sentenced to death after a 1986 conviction for stabbing a mother and daughter
to death in Union County.
The inmates allege that the drug used in executions - a lethal injection of
pentobarbitol, known as the 'single drug method' - can cause 'lingering death,'
and should be considered cruel and unusual punishment under the Eighth
Amendment. The injection renders the inmate unconscious, before the heart
stops. The inmates claim subjects could still have some heart electrical
activity for 34 minutes up to an hour after injection.
There was also question of whether it is legal for doctors and pharmacists to
prescribe and provide the lethal drug.
On March 28, the Supreme Court disagreed with both claims. Chief Justice
Jeffrey Bivens wrote in his opinion that "The intended result of an execution
is to render the inmate dead."
Pending these appeals, all executions have been put on hold. Tennessee has not
executed anyone since 2009.
"We are not likely going to execute anybody soon, because there are still
layers of this appeal to go," said WBIR legal expert Don Bosch. "We're still
looking at least a couple years before decisions are handed down as to this
[single drug] method of execution."
Attorney Stephen Ross Johnson heads the Innocence and Wrongful Convictions
Clinic at the University of Tennessee law school. He said the decision could
clear the way for executions to resume in Tennessee.
"In general, I am opposed to the death penalty because I think it is unfairly
applied, overly expensive. And, how in the world can we have a perfect
punishment, a punishment that is absolute, in an imperfect system," said
Since the litigation began, 2 death row inmates named on the suit have died of
natural causes. Tennessee Department of Corrections lists 61 inmates currently
on death row.
This may not be the end of the case. Attorneys for the inmates say they plan to
appeal to the U.S. Supreme Court.
"Tennessee stands alone in requiring a contract with a pharmacist who must
agree to violate state and federal drug laws in order to comply with the
protocol," wrote Kelley Henry, Assistant Public Defender for the Middle
District of Tennessee. "We will be seeking review of this novel protocol in the
United States Supreme Court."
Families of victims have previously expressed frustration with the amount of
time convicts spend on death row.
Billy Ray Irick is a plaintiff on the suit. He was convicted in the 1980s of
strangling 7-year-old Paula Dyer in Knox County. In 2013, before Irick's
scheduled execution date, Paula's brother, Tony, spoke to 10News about the
"You know, with the lethal injections, they don't want him to suffer, they want
it to be instantaneous," he said. "Her [death] wasn't instantaneous, by no
means. Hours. Hours this lasted."
The U.S. Supreme Court is not required to take up the case, but could do so
with 4 votes.
(source: WBIR news)
Arkansas Is About to Execute 8 Men in 11 Days----At least 6 of those 8 men
likely suffer from crippling mental impairments.
as a young child, Jason McGehee carried his dog Dusty around with him
everywhere he went. He dressed him in pet clothes, put his birthday on a paper
calendar, and went to bed each night with the dog sleeping beside him.
McGehee's aunt filed a legal declaration stating that his mother suffered from
chronic depression and abused McGehee. His aunt also alleged that McGehee's
stepfather was sadistic. At a family dinner, she claimed, he kicked Dusty to
death using his pointy boots as weapons and forcing McGehee to watch. When the
dog died, "[t]hat was the turning point," McGehee's aunt later observed. "Jason
was never the same after that."
McGehee also suffers from bipolar disorder, which runs in his family. According
to an expert evaluation, he may have some impairment in his frontal lobe, the
area of the brain responsible for judgement, problem solving, and emotional
regulation. Symptoms of mental illness emerged during childhood, but his mother
allegedly did not get him help, believing he was "possessed by the devil."
At 21 years old, Jason lived with several friends in a house without utilities,
supporting himself by passing stolen checks and committing other petty crimes.
After a frequent houseguest named John Melbourne told the police about the
stolen checks, the housemates and Melbourne had a physical altercation that
culminated in Melbourne's death. McGehee received the death penalty. His
17-year-old co-defendant, who admitted to strangling Melbourne with an electric
cord until he died, got a sentence of life without parole.
Jason McGehee is 1 of the 8 men Arkansas intends to execute between April 17
and April 27. (McGehee's execution is scheduled for the 27th.) Arkansas will
execute more people in that 11-day period than every state except Georgia did
all of last year. A new report released by the Fair Punishment Project reveals
that at least 6 of the 8 men likely suffer from crippling mental impairments.
But juries never heard much evidence of such impairments because of the shoddy
representation the men received at trial. In 2 cases where there was little
evidence of serious mental impairment, it appears as though no lawyer bothered
to conduct a thorough investigation into the client's background.
Under the Eighth Amendment, the death penalty must be reserved for the worst of
the worst - those who commit the most heinous homicides and whose personal
culpability makes them especially worthy of blame. The Supreme Court has
recognized that intellectual disabilities "[lessen] moral culpability and hence
the retributive value of the punishment." Executing those who fall into that
category serves "[n]o legitimate penological purpose," the court has found, and
"violates his or her inherent dignity as a human being."
But unless Arkansas' governor intervenes or a court stays these executions, the
state will kill 8 men who either have debilitating impairments that diminish
their moral culpability or else have lawyers who likely never performed the
type of investigation that might reveal such impairments.
Arkansas is poised to execute people at a clip that would embarrass any
Southern governor at the height of the 1990s execution frenzy.
Like Jason McGehee, Jack Jones has bipolar disorder and has twice tried to
commit suicide, most recently by jumping off a bridge. As a child, Jones
thought the only way to be safe from his hallucinations was to hold very still.
In a legal declaration, an expert witness who reviewed Jack's medical records
described how Jones' father physically abused him, and also how he was
kidnapped and brutally raped by strangers. Jones is scheduled for execution on
April 24. Marcel Wayne Williams experienced horrific sexual abuse as well. In a
post-conviction court hearing, a forensic psychologist described how Williams'
mother started pimping him out for sex when he was 10 and reported that
Williams was gang-raped by 3 men as a teenager while serving time in an adult
prison. The expert, Dr. David Lisak, also testified that Williams' mother once
poured boiling water on him and (in a different incident) covering him in tar.
Williams, too, will be killed by the state on April 24.
While the Supreme Court has ruled the death penalty should be reserved for the
most culpable offenders, it has developed categorical bars against executions
of the insane, the intellectually disabled, and those under 18. There are 3
additional men scheduled for execution in April who arguably fall within these
categories. The court has held that a state cannot execute a person unless he
not only knows that he is going to be executed, but also rationally understands
why. Yet it appears as though Bruce Ward does not even realize he will be
killed. A diagnosed paranoid schizophrenic, Bruce thinks he is in jail because
of "demonic forces" and because God is preparing him "for a special mission as
an evangelist." According to Ward's lawyers, he thinks there are "resurrected
dogs" in the prison, and he has asked his attorneys to hold onto his execution
warrant so he can hang it by his office desk when he leaves prison. Ward's
execution is scheduled for April 17.
In Atkins v. Virginia, the Supreme Court ruled that states lack the "power to
take the life" of anyone with an intellectual disability. In Hall v. Florida,
and again just this week in Moore v. Texas, the court reaffirmed that ruling
and made clear that states' definitions of intellectual disability must be
informed by medical standards, overturning sentences where states eschewed "the
medical community's diagnostic framework" for evaluating intellectual
disability. Two of the Arkansas cases may fall within this medical definition.
Kenneth Williams has an IQ of 70, which puts him squarely within the
intellectual disability range. Don Davis, whose IQ measured at 69 and 77 in 2
separate tests, is at the very least borderline intellectually disabled. Davis
will be executed on April 17, Kenneth Williams on April 27.
This kind of evidence often convinces jurors to spare a defendant's life.
According to findings from the Capital Jury Project - a group of researchers
who study jurors' decision-making in death penalty cases - evidence of reduced
culpability in the form of intellectual disability, mental illness, or
childhood trauma is extremely compelling to jurors deciding whether to spare
someone's life. But in almost none of these Arkansas cases did a jury ever hear
about the defendant's crippling mental illness, neurological impairments,
intellectual disabilities, or allegations of abuse.
Ledell Lee's case is a tragic example. His trial lawyers repeatedly asked to be
removed from the case and even appealed to the Arkansas Supreme Court citing a
"gross [ethical] conflict" - the source of the conflict is unclear - that could
impede the representation of their client, but the judge refused their request
to withdraw. Perhaps unsurprisingly, they did not investigate Lee's life
history. Lee's 1st post-conviction attorney admitted to being drunk during a
post-conviction hearing and repeatedly stated "blah blah blah" while in court.
Lee eventually received new lawyers, but the Arkansas Supreme Court rejected
their briefs twice for failure to comply with court standards. Later, another
attorney withdrew from the case after representing Lee for 10 years. After all
that time, she claimed not to have a file on Lee's case. And yet another lawyer
had to surrender his law license to "prevent possible harm to clients" because
he himself suffered from a serious mental illness. Lee's execution is scheduled
for April 20.
In the case of Stacey Johnson, too, there is no evidence that any lawyer ever
conducted a meaningful mitigation investigation into his life history. With
only 3 weeks until Johnson's April 20 execution date, it appears as though no
one ever will.
In the 1990s, when all of these men were first sentenced to death, the nation
had a very different relationship with the death penalty than it does today. In
1992, then-Arkansas Gov. Bill Clinton left the presidential campaign trail to
oversee the execution of Ricky Ray Rector, a man with an IQ of 70 who gave
himself a partial lobotomy. When the guards took him to the execution chamber,
Rector left his dessert - a pecan pie - to eat later. That year, more than 3/4
of people in the United States supported the death penalty, and in 3 separate
years in the 1990s more than 300 Americans were sentenced to death.
These 8 men are holdovers from a bygone era. Today, public support for the
death penalty has fallen to its lowest level in more than 40 years, and only 30
death sentences were handed out in the whole country last year. Among the
reasons the death penalty has lost its luster are concerns over executing
people with intellectual impairments or serious mental illnesses. Now, Arkansas
is poised to execute a string of people with crippling impairments at a clip
that would embarrass any Southern governor at the height of the 1990s execution
Gov. Asa Hutchinson should step in and halt these executions, but if he does
not, the buck stops with the U.S. Supreme Court. If, as Justice Anthony Kennedy
recently wrote on behalf of the court in Hall v. Florida, executing a person
with an intellectual disability violates the inherent dignity of that person,
then what does it say about Arkansas - and frankly, the court itself - if the
executions of these broken, vulnerable men are allowed to proceed?
(source: Jessica Brand is the legal director of the Fair Punishment
2 Dozen Former Corrections Officials Ask Arkansas Governor to Not Proceed With
Risky Execution Schedule
Thursday, 23 former corrections officials and administrators urged Governor Asa
Hutchinson of Arkansas to reconsider his plan to execute 8 prisoners at the
unprecedented rate of 2-per-day on 4 execution days over a 10-day period.
Hailing from 16 states as well as federal jurisdictions, the former corrections
officials wrote to the Governor out of concern for the prison officials and
staff who will be charged with carrying out the executions. Citing their
"first-hand and unique experience with the death penalty," the signatories
describe the "psychological challenges" involved in conducting executions, and
the "severe toll on corrections officers' wellbeing."
The former corrections officials also discuss the pressure of an unnecessarily
compressed execution schedule and the concern that "the burden of such a
condensed schedule will increase the chance of an error occurring," noting that
the "execution of a prisoner is a complex and difficult process with little
margin for error."
Governor Hutchinson stated that the reason for the rapid execution schedule is
that the state's supply of the sedative midazolam will expire at the end of
April. Arkansas has not conducted an execution since 2005. While expressing
respect for and confidence in staff of the Arkansas Department of Correction,
the letter describes a scheduled double execution that led to a botched
execution in Oklahoma:
"[A]fter the 2014 execution of Clayton Lockett in Oklahoma, during which the
medical team struggled to insert an IV (which eventually became dislodged,
causing officials to halt the procedure before all the drugs had been
administered), the state Department of Public Safety found that having 2
executions scheduled for the same night contributed to increased stress on
staff-even in a state that had already carried out several executions that same
year. The Department subsequently recommended scheduling no more than one
execution per 7-day period. "
The former corrections officials state: "A state's interest in justice and
finality are not served by a botched execution."
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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