World Day against the Death Penalty

Today, October 10, is World Day against the Death Penalty. This year’s focus is “The Death Penalty Does Not Stop Drug Crimes.” The top five killers of capital punishment, executing more people than the rest of the world combined, are the United States, Iran, Saudi Arabia, Iraq, and China. Almost two-thirds of countries worldwide, 140 in all, have abolished the death penalty, up from only 16 countries in 1977. Yet death sentences increased by over 500 last year from the year before: at least 2,466 people were sentenced to death in 2014. Actual executions dropped 22 percent to at least 607, not counting China which does not release its numbers of executions. Last year, 22 governments in 22 countries killed people, compared to 41 governments ten years ago.

Why the death penalty is wrong:

• Innocent people are executed.
• Capital punishment is extremely expensive.
• The death penalty prolongs suffering for the victim’s family as offenders may spend 20 or 30 years on death row.
• No proof exists that executions deter people from committing crimes.
• Whether defendants receive the death penalty is largely dependent on the quality of legal representation with poor people receiving the worst legal support.
• The race of both victims and defendants are primary factors in determining death sentences.
• Politics and geographic location of crimes are also important factors in determining death sentences.
• Death sentences deny the sanctity of life that religious groups support; capital punishment is immoral.

While the death penalty is decreasing worldwide, the number of executions for drug-related offenses increased in 2015. Of the 33 countries executing people for drug use or trafficking, 13 used this option in the past five years. For example, Indonesia used the firing squad to execute eight people for drug offenses in April 2015. There is no indication that the death penalty prevents drug consumption or drug trafficking.

Singapore had record numbers of drug seizures in 2012 despite the country being a leader in imposing the death penalty for this crime. Countries allowing the death penalty for drug-related offenses show evidence of coercion or torture to obtain confessions in China, Egypt, Indonesia, Thailand, Saudi Arabia, Sudan, etc. Concerns for trial standards for drug-related crimes have been raised in Cuba, Iraq, Myanmar, North Korea and Syria, amongst other countries.

In the U.S., the death penalty is legal in 31 states, and governors in four of these states, including Oregon, have imposed a moratorium. Only 20 states where approximately one-third of the people in the U.S. live had held an execution in the past eight years.

Last year, the U.S. Supreme Court addressed the question of whether the use of inappropriate injections violated the Eighth Amendment’s prohibition on cruel and unusual suffering. The conservative majority ruled in Glossip v.Gross that executions would necessarily have some pain and therefore upheld the use of the injections. Justice Samuel A. Alito Jr. wrote for the majority that the there was no identification of a “known and available alternative method of execution” that would carry a lesser risk of pain.

The case led to a wider discussion about the death penalty itself. Two of the four dissenting justices, Stephen G. Breyer and Ruth Bader Ginsburg, wrote dissents asking the court to examine whether the death penalty is actually constitutional, stating that it likely “violates the Eighth Amendment.” All four of these justices summarized their views from the bench. Justice Sonia Sotomayor rejected the court’s conclusion that prisoners must identify an “available alternative means by which the state may kill them.”

Another issue surrounding Glossip is that the convicted man might even be innocent. Richard Glossip’s life continues after three scheduled dates for execution because of a series of errors in Oklahoma. After the Supreme Court ruled in favor of executing him, the date was set for September 16, 2015. Pleas from around the country because of new evidence regarding his conviction resulted in a last-minute reprieve for two weeks.

Another last-minute reprieve on September 30, 2015 came when Mary Fallin and state Attorney General Scott Pruitt announced that they had gotten the wrong drug—potassium acetate instead of potassium chloride. Although a doctor and pharmacist claimed that the two drugs are interchangeable, the executed prisoner Charles Warner, who suffered great pain last January, received potassium acetate instead of the potassium chloride as the state originally claimed. Glossip’s new execution was set for November 6, 2015 but has been put off indefinitely until the completion of an investigation.

This year the Supreme Court has scheduled four capital punishment cases. On Tuesday, October 13, SCOTUS will hear arguments about the jury’s role in assigning capital punishment in  Florida, the last state that does not require jurors to be unanimous in both explaining why a person is eligible and then recommending that sentence. The other forty-nine states and the federal government consider a unanimous verdict as the norm,  A 2002 SCOTUS ruling in Ring v. Arizona attempted to move death sentencing from a judge to a jury, but Florida’s law gives juries only an advisory role in death penalty sentencing.

The current SCOTUS case, Hurst v. Florida, could reinterpret issues about not allowing judges to make the factual findings about “aggravating factors” and not requiring a unanimous jury vote for death sentences. In the case under consideration, Timothy Lee Hurst received a death sentence after the jury supported it in a vote of seven to five. Florida doesn’t even require a majority advisory vote for the death penalty if a majority of jurors agree that at least one aggravating factor exists. Florida judges are also not required to follow juries’ recommendations in death sentences.

Last week, the Supreme Court addressed two Kansas cases in which the state Supreme Court overturned the death sentences of three men because of confusing jury instructions. The sentence was set aside for another man because he was tried together with his brother instead of separately. A ruling could affect the future for six of the other nine prisoners on death row in Kansas because the same issue can be applied to their sentencing.

Another capital punishment case sent to the Supreme Court was declared “moot” last Friday because of “miscommunication.” Despite a filing to the Supreme Court before the execution, neither Virginia’s governor nor the attorney general notified the state Department of Corrections before Alfredo Prieto was declared dead after an injection of drugs purchased from Texas.

Before this year’s SCOTUS term began, Breyer discussed his views on the death penalty with MSNBC journalist Ari Melber, in an interview following the publication of Breyer’s ninth book, The Court and the World: American Law and the New Global Realities. Rachel Maddow’s discussion of the death penalty including parts of the interview is here, and the Breyer/Melber full interview is here.

During the past two decades, the difference in opinion about the death penalty has shrunk in half. Those opposing the practice have increased from 16 percent to 33 percent while those in favor have dropped from 80 percent to 63 percent. Maybe some of these people read the statistics that murder rates in New York and New Jersey decreased after these states repealed capital punishment.

Condemned Man Granted Two-week Stay

Richard Glossip was scheduled to be executed in Oklahoma at 3:00 pm (CT) this afternoon. Yesterday, I wrote a blog about why his execution should be stayed because new evidence might prove his innocence. Less than three hours before Glossip’s time of death, a two-week stay of his execution was announced. The Oklahoma Court of Criminal Appeals “reset” his execution to September 30 so that it could reconsider a last-minute petition filed by Glossip’s new attorney. On or before that time, the court can either grant or deny the additional requests with the possibility of further delaying Glossip’s execution.

Oklahoma Gov. Mary Fallin, who had refused to stay his execution, said that she will abide by the court’s decision.

As I wrote yesterday, Glossip was convicted of a murder with no forensic evidence and extremely poor defense at two different trials. The prosecution’s entire case relied on testimony from 19-year-old Justin Sneed, who was given a plea agreement if he implicated Glossip. After “persuasion” from law enforcement, Sneed admitted to beating Van Treese to death with a baseball bat and taking about $4,000 out of his car but said that he did it because Glossip told him to do it.

More information about Glossip’s case came out last night when it was reported that prosecutors destroyed a box of evidence in 1999 before Glossip’s first appeal had been heard and his conviction overturned. The box reportedly held financial records that Glossip claimed would prove that he wasn’t embezzling money. The defense was not notified about the destruction of the evidence and may not have even known that the evidence existed—a serious violation of prosecutorial conduct. That doesn’t prove Glossip’s innocence, but the charge is to prove him guilty. The other question is whether the state will execute a person with this much uncertainty.

The testimony from “jailhouse snitch,” Justin Sneed, leaves many questions. In the first trial, he claimed that Glossip offered him $7,000 to kill Barry Van Treese; by the trial in 2004, Sneed said it was $10,000. At first, Sneed said that he had met Glossip only a few times, but by 2004, Sneed claimed that Glossip had told him to kill Van Treese “five or six times” by the time he actually did it. In a videotape, never presented in court, Sneed said he was coming off a meth binge when he killed Van Treese. It also shows interrogators telling Sneed that they had arrested Glossip although Sneed gave a different testimony in the 2004 trial.

Despite the emergence of new evidence, Fallin and the DA who convicted Glossip, Bob Macy, claimed that it was “nothing but a publicity campaign by death penalty—anti-death-penalty activists to try to bring down the death penalty in Oklahoma and in the United States.” There was no concern about whether they might be responsible for executing an innocent man.

Glossip has always maintained his innocence, even rejecting a plea deal to take him off death row.

Will Oklahoma Execute an Innocent Man?

Imagine committing no crime but ending up on death row—for 18 years. That may be what happened after Richard Glossip, now 52 years old, was accused in 1997 of hiring Justin Sneed to kill Glossip’s employer, Barry Van Treese, after Glossip embezzled money from his boss. Physical evidence put only Sneed at the murder, according to Glossip’s original defense. Van Treese’s brother also testified that the shortages used to prove the embezzlement were insignificant. No DNA or fingerprints linking Glossip to the murder, and prosecutors admitted in Glossip’s 2004 retrial that “the physical evidence doesn’t directly implicate Mr Glossip.” All the evidence pointed only to Sneed. Yet Glossip was judged guilty in both the original 1997 trial and the retrial.

Glossip’s first trial was overturned by the Oklahoma Court of Criminal Appeals in 2001 because of inadequate and since debarred counsel, Wayne Fournerat, and suffered from another inadequate public defender in the 2004 trial. Glossip’s attorneys never introduced the videotape of Sneed’s interrogation as leading questions cajole Sneed into blaming Glossip. At the trial, Sneed even added premeditation on the part of Glossip to his narrative. Even Sneed’s daughter, O’Ryan Justine Sneed, wrote that Glossip didn’t do what her father claimed and that he is still afraid of recanting his story because he might get the death penalty.

The actual murderer, 19-year-old Sneed, first said he didn’t know Van Treese, then he didn’t kill him, next he killed him accidentally during a robbery, and finally he admitted he killed him intentionally. Richard A Leo, a professor at the San Francisco University School of Law, said that the investigators’ behavior is “substantially likely to increase the risk of eliciting false statements, admissions, and confessions.”  Investigators who “presumed the guilt of Richard Glossip from almost the start and sought to pressure and persuade Justin Sneed to implicate Richard Glossip” initiated Glossip’s guilt, according to Leo.  Sneed testified against Glossip and saved himself from a death penalty in a plea deal.

Now a legal team is arguing that prosecution framed its case on the testimony of murderer Sneed, whose changing retelling was not adequately disputed in the trial. Attorney Donald Knight said that Glossip’s defense failed to prepare for trial; they didn’t even question key witnesses such as D-Anna Wood, Glossip’s girlfriend, who could have provided alibis for Glossip. Nor did the earlier defense lawyers challenge gruesome evidence about Van Treese taking eight hours to die when new evidence found that death came within 30 minutes. Jurors had considered the length of time as important in their decision.  Asking for 60 more days before execution to gather more evidence, Glossip’s new attorney, Donald Knight, said:

“Richard is sentenced to death because he’s poor. Not very many people can afford a death penalty defense. That should scare everyone.”

Other new evidence, according to Knight, is a witness report that Sneed was addicted to drugs and fed his habit by breaking into cars and hotel rooms. A man who served time with Sneed in prison also said that he overheard Sneed saying that he set up Glossip.

Glossip received a stay one day before his scheduled execution in January because his name was part of the Supreme Court appeal regarding the lethal injection drug midazolam that resulted in several botched executions. The high court ruled that the drug’s use was constitutional, and Glossip’s new execution day was scheduled in July for tomorrow, September 16, 2015, at 3:00 CT.

Even former Sen. Tom Coburn (R-OK) signed a letter with high-profile legal experts urging a stay of execution. They wrote:

“Unless you act, the State of Oklahoma will put Mr. Glossip to death for the murder of Barry Van Treese. Justin Sneed–who, by his own admission, beat Van Treese to death with a baseball bat–will not meet that fate.

“The writers of this letter have a wide range of professional backgrounds and political perspectives. But we share a deep concern about the integrity of the criminal justice system in Oklahoma and throughout the United States. We are particularly concerned about the danger of executing an innocent man.”

Oklahoma Gov. has thus far refused to stay Glossip’s execution despite the strong possibility that he is innocent. You can call her at (405)521-2342. Both options are #1. Of the 112 executions in Oklahoma since 1976 and 49 inmates currently on death row, the state has had 10 death row exonerations. That failure rate alone should give Richard Glossip another 60 days.

The National Registry of Exonerations lists 115 defendants sentenced to death but later exonerated and released after the discovery of new evidence of innocence was discovered. Of those 115 innocent inmates on death row, one-fourth of them, 29, were convicted after a suspect in the murder gave a confession that also implicated the innocent defendant. Last year a study published in the Proceedings of the National Academy of Sciences estimated that 4.1 percent of defendants who are sentenced to death in the United States are innocent. Most of them, like most of all defendants who are sentenced to death, have not been exonerated or executed. They remain in prison or have died of other causes.

Quality of representation may be the most important factor in the death penalty for a crime. Almost all defendants in capital cases need public defenders who are overworked, underpaid, and/or lack trial experience for these cases. Sometimes appointed attorneys drink alcohol before they come to court or fall asleep during the trial. In 2001, Supreme Court Justice Ruth Bader Ginsburg said:

“People who are well represented at trial do not get the death penalty . . . I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”

Alabama has the highest per capita rate of executions in the United States; the state has no public defender system, and 95 percent of its death row occupants are indigent.

Texas has the largest total number of executions; almost one-fourth of the 461 condemned inmates were represented by court-appointed attorneys who have been disciplined for professional misconduct. According to an investigation, death row inmates today face a one-in-three chance of being executed without having the case properly investigated by a competent attorney and without having any claims of innocence or unfairness presented or heard.”

Washington state has 84 people who faced execution between 1980 and 2000; one-fifth of them were represented by lawyers who had been, or were later, disbarred, suspended or arrested. (The state’s disbarment rate for attorneys is less than 1%.)

These statistics are not unique across the nation.

Support for the death penalty is at its lowest point in 30 years: 52 percent of people in the United States advocate life in prison instead of execution. The strongest support for killing inmates comes from evangelical white Protestants and Republicans as well as states that still have the death penalty. Recently, Nebraska joined Maryland, Connecticut, Illinois, New Mexico and New Jersey to repeal the death penalty since 2007.  The governors of Colorado, Oregon, Pennsylvania, and Washington have each indefinitely suspended future executions.

The death penalty has become less common. Last year saw the lowest number of executions in 20 years, 35, and the fewest new death sentences in 40 years, 73. Just 62 counties of 3,000 nationwide are responsible for the majority of death sentences. Half of all new death sentences between 2004 and 2009 came from less than 1 percent of the country’s counties; all the new death sentences came from fewer than 2 percent of the counties.

Proponents of the death penalty claim that its purpose is deterrence. There is no evidence supporting that premise, and the vast majority of top criminologists disagree with the theory. In addition, the death penalty costs state and local governments millions of dollars more than life in prison without parole.

Gov. Mary Fallin has no reason to let the state kill Richard Glossip.

Death Penalty Needs to Be Abolished

The execution of John Middleton in Missouri early Thursday morning at 12:01 am was the sixth execution in that state this year—one every month since November except for May when the U.S. Supreme Court halted Russell Bucklew’s execution. He suffers from a rare congenital condition causing weakened and malformed blood vessels. A hearing before the 8^th Circuit Court of Appeals will hear Bucklew’s case on September 9.

A federal judge had granted Middleton a stay of execution on Tuesday, but a federal appeals court overturned it, and both the U.S. Supreme Court and the Missouri Supreme Court refused to halt the execution. Gov. Jay Nixon denied a request for clemency.

Middleton may have been innocent. When he was convicted of murdering three suspected police informants in 1995, the prosecutors used an insect larva from the body of one victim as a key piece of evidence. Later, it was discovered that the date for the larva was off by a day. On the actual day of the murder, according to this evidence, Middleton was in a Missouri jail on unrelated charges. The prosecution had only circumstantial evidence with no DNA or other physical links to the death. A witness submitted a new affidavit implicating two other drug dealers in all three killings.

Even getting a stay might not have saved Middleton’s life. Missouri tends to rush executing people. February’s executed prisoner was taken by prison guards while he was discussing his attorney’s appeal and injected with deadly drugs. The state pronounced him dead four minutes before the state Supreme Court gave the go-ahead for his execution.

That was the third straight execution in Missouri in which executed prisoners were injected with lethal drugs while their appeals were still pending. In January, 8th Circuit Court of Appeals Judge Kermit Bye declared that he was “alarmed” that Missouri proceeded with its execution “before this court had even finished voting on Nicklasson’s request for a stay. In my near fourteen years on the bench, this is the first time I can recall this happening.”

In addition to ethical problems, executions now openly exhibit incompetence. Drugs are questionable because those used in the past for lethal injections are no longer readily available either in the U.S. or in Europe. States are now using sometimes unsuccessful drugs from non-regulated compounding companies. The people doing the injections, usually not doctors, are also incompetent. In 2009, Romell Broom was poked with needles for over two and a half hours while people searched for a suitable vein in order to insert the IV for the drug. Even the prison doctor failed. The Ohio governor finally stopped the execution after being alerted by the prisoner’s lawyer.

That situation presents the question of whether a state can legally execute a person after he survives an execution attempt. Almost 70 years ago, SCOTUS ruled in a 5-4 vote that a second execution was just fine after a drunk prison guard set up the electric chair incorrectly. The Supreme Court may have a second chance to make a decision.

Broom wasn’t the first problem. Three years earlier, Joseph Clark shouted during his 90-minute execution, “It don’t work! It don’t work.” A year later, Christopher Newton’s execution took so long that officials had to give him a bathroom break.

Because doctors are prevented from killing because of their Hippocratic oath, those who do are not top-notch. The dyslexic Dr. Alan Doerhoff performed 54 executions in Missouri about he had been sued for malpractice at least 20 times and was banned from two different hospitals.

Clearly aware of their failures, states with the death penalty are attempting to shroud executions in secrecy. The Guardian, the Associated Press and three Missouri newspapers now have a landmark lawsuit to remove that secrecy from death penalty protocols. The lawsuit argues that under the First Amendment of the US constitution the public has a right of access to know “the type, quality and source of drugs used by a state to execute an individual in the name of the people.”

Instead of stopping executions, one state legislator has an alternative. After states have used hangings, gas chambers, electric chairs, and lethal injections, Utah Republican state legislator Paul Ray wants the firing squad returned and plans to bring it up in legislature this coming January. Utah outlawed opting for death by bullet only a decade ago. One person used this method for his execution in 2010. Ray isn’t alone; Missouri state Rep. Rick Brattin said earlier this year when he was proposing the method for his state. Meanwhile the shortage of drugs has driven Tennessee to legalize the electric chair.

Aside from the argument that executions cost more than life imprisonment, there are several reasons for stopping the death penalty as the United States did for several decades during the twentieth century:

• Capital punishment doesn’t deter crime. In fact, states without the penalty have much lower murder rates. For example, the South has 80 percent of executions in the country while it holds the highest regional murder rate.
• Innocent people are convicted and executed. In the last four decades since the U.S. reinstated the death penalty, 144 men and women have been released from Death Row, some of these only minutes before their scheduled executions. Four men may have recently been wrongfully executed for crimes they didn’t commit.
• Race plays a role in who is executed. A 1990 report from the General Accounting Office concluded that the race of the victim influenced the likelihood of capital murder charges or the death penalty in 82 percent of studies that were reviewed. Those who murdered whites were far more likely to be sentenced to death than those who murdered blacks.
• The death penalty is randomly applied. Politics, quality of legal counsel, and the location of the crime are more likely to be the determining facts for the death penalty than the facts surrounding the crime.
• Bad legal counsel is a prime reason for executions. The vast majority of defendants in capital cases cannot afford their own attorneys. Many of them are highly inexperienced while others sleep through the trial or come to court drunk.
• Civilized nations don’t execute people. Throughout the world, 140 nations—including most of those in Western Europe, North America, and South America—do not have capital punishment. The U.S. sides with Iraq, Iran, and China in executing people.
• Capital punishment violates religious beliefs.
• The death penalty doesn’t heal the pain that victims’ loved ones suffer. Money used for executions could be used for counseling, restitution, crime victim hotlines, and other services for survivors of victims.

The sensible alternative to the death penalty is life without parole. In California alone 3,300 people received this alternate sentence, and only seven of them have been released since this option became available in the state in 1977. All seven proved their innocence.

In a 5-4 vote last May, the Supreme Court determined Florida’s rigid cutoff number for mental disability to be unconstitutional.  This cutoff “creates an unacceptable risk that persons with intellectual disability will be executed,” Justice Anthony Kennedy wrote for the 5-4 ruling. “Intellectual disability is a condition, not a number.” SCOTUS had prohibited states from executing the mentally impaired in Atkins v. Virginia (2002).

Justice Antonin Scalia was in the minority in both votes. He defends his pro-death penalty stance by claiming that the Bible forgives those who wrongly apply the death penalty to innocent persons on the grounds that the wrongly convicted will have an opportunity to set the record straight in the courthouse of the afterlife.

In a first, U.S. District Judge Cormac J. Carney ruled this week that California’s death penalty violates the U.S. Constitution’s ban on cruel and unusual punishment. Carney said, that the “random few” who will be executed  “will have languished for so long on Death Row that their execution will serve no retributive or deterrent purpose and will be arbitrary.”  Carney said. His decision will most likely be appealed to the U.S. 9th Circuit Court of Appeals.

Following the uproar after Oklahoma badly botched an execution in May, causing the prisoner to die of a heart attack, the Department of Justice has initiated a national review of the death penalty. It has declared a moratorium for executions on a federal level pending an investigation. The agency will also “include a survey of state-level protocols and related policy issues,” according to DoJ spokesperson Ellen Canale.

Christopher Durocher, government affairs counsel for the Constitution Project, has submitted recommendations to the agency. The prominent think tank, whose members include former attorneys general, judges and prosecutors with differing views on the death penalty, proposes a DoJ office to review innocence claims of death row inmates, especially considering reports of racial disparity. The group also urges the development of “federal standards and procedures” for accrediting forensic laboratories after recent research has called into question the practices used in some of the 32 states that still use the death penalty. Durocher said that states not complying with benchmarks could be ineligible for some federal grants.

Although the approval rating of capital punishment is currently at 60 percent, that’s down from 80 percent 20 years ago when it peaked. We’re heading in the right direction.