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For Second Time in Two Years, Georgia Prepares to Execute Black Prisoner Whom White Juror Called N-Word

Posted: September 7, 2017

For the second time in as many years, Georgia is preparing to execute an intellectually disabled African-American man, despite evidence that the death verdict in his case may have been tainted by a white juror's profound racial bias. Lawyers for Keith Leroy Tharpe (pictured), whose IQ has been measured in the 60s and whom Georgia has scheduled to be executed on September 26, say the courts should reconsider his case in light of the racial slurs a white juror made about him. They say new U.S. Supreme Court decisions clearly prohibit death sentences based on race and permit defendants to inquire into racist statements by jurors. While preparing his appeal, Tharpe's lawyers interviewed jurors from his case, including one who openly referred to Tharpe with the N-word while saying the victim, Tharpe's sister-in-law, had come from a family of "'good' black folks." The juror's affidavit also said that, if the victim "had been the type Tharpe is, then picking between life or death for Tharpe wouldn't have mattered so much." Under questioning by prosecutors, the juror, who is white, testified that he had been drinking on the day Tharpe's defense team had initially interviewed him and on a second day on which they asked him to sign a statement that they had prepared based upon the prior interview. The juror denied that he had intended his use of the N-word in a racist way and contended that race had not affected his deliberations. The state's lawyers successfully argued that the court should not reconsider Tharpe's legal challenge based upon the evidence of racial bias—which prosecutors characterized as "racially insensitive offhand remarks"—because the jurors statements did not constitute an "extraordinary circumstance" and Georgia law did not permit inquiry into the content of the jury's deliberations. They further argued that there was no evidence that the jury's sentencing deliberations had been tainted by racial animus. In April 2016, Georgia executed Kenneth Fults, another African-American prisoner, despite strikingly similar evidence that he was intellectually disabled and that his sentence may have been the product of racial animus. In Fults' case, a white juror submitted a written affidavit saying, “I don’t know if he ever killed anybody, but that (N-word) got just what should have happened. Once he pled guilty, I knew I would vote for the death penalty because that’s what that (N-word) deserved.” The Georgia state and federal courts deemed the issue procedurally defaulted and denied relief to Fultz, and the U.S. Supreme Court declined to review the issue and denied Fults a stay of execution. Subsequently, the Supreme Court overturned a death sentence in a Texas case, Buck v. Davis, in which a defense psychologist had testified that Buck was more likely to commit future acts of violence because he is Black. Chief Justice John Roberts declared "[s]ome toxins can be deadly in small doses," calling the testimony a "particularly noxious strain of racial prejudice." "[T]he law punishes people for what they do, not who they are," he wrote. Then, in March 2017, the Court ruled in Peña-Rodriguez v. Colorado that when clear evidence of racial bias during deliberations emerges after trial, the defendant's right to a verdict free of racial bias overcomes state rules insulating jury deliberations from judicial review. Justice Kennedy wrote, "discrimination on the basis of race, odious in all aspects, is especially pernicious in the administration of justice." Despite these decisions, a federal judge on September 5 declined to reopen Tharpe's case.

 

Federal Appeals Court Sides with Alabama Prisoners on Lethal-Injection Case, Sends Back to District Court

Posted: September 6, 2017

The U.S. Court of Appeals for the Eleventh Circuit has issued a ruling reviving a lawsuit brought by Alabama death-row prisoners that challenged the constitutionality of the state's three-drug execution protocol using the controversial lethal-injection drug midazolam. The unanimous decision by the three-judge federal appeals panel on September 1 reversed a federal district court ruling against several death-row prisoners who sued the Alabama Department of Corrections, alleging that the state's planned execution process created an unnecessary risk of a torturous death that could be eliminated if the state used other available drugs. The lower federal court had issued summary judgment for the state, finding that there was no feasible and readily implementable alternative drug protocol without having first determined whether Alabama's lethal-injection protocol created a substantial risk of pain. In reversing the district court's decision, the Eleventh Circuit held that the court failed to "first mak[e] a finding regarding the risk of pain, if any, the current three-drug protocol presents," saying that a court cannot evaluate whether an alternative reduces a risk if it does not know "what that risk is." The appellate court returned the case to the district court for further fact-finding proceedings, saying resolution of the issue "will require the presentation of expert opinion testimony" from both sides. The appeals court also rejected the lower court's finding that pentobarbital was not available as an alternative execution drug, noting that Texas, Georgia, and Missouri had conducted numerous recent executions with the drug. "From these facts it can reasonably be inferred that compounded pentobarbital was available" to Alabama, the court said. John Palombi, counsel for the prisoners, called the decision encouraging and said he was "very pleased that that the 11th Circuit has recognized that there are serious questions about the unconstitutionality of this protocol." He said the prisoners were "looking forward to finally getting to present evidence that we believe will demonstrate that the protocol is unconstitutional." That evidence is likely to include detailed accounts of botched executions that have used midazolam, including Alabama's execution of Ronald Bert Smith last December, during which Smith heaved, coughed, and clenched his fist for 13 minutes after receiving the injection of midazolam. Alabama currently has two executions scheduled for October—Jeffrey Borden on October 5 and Torrey McNabb on October 19. Neither of those prisoners is a party to this case, but both have similar challenges to the state's lethal-injection protocol pending on appeal before the Eleventh Circuit. Palombi has indicated that Borden and McNabb will ask the Alabama Supreme Court to vacate the scheduled execution dates in light of the Eleventh Circuit's ruling. [UPDATE: On September 6, Borden and McNabb filed emergency motions in the Alabama Supreme Court to vacate their execution dates. Later that day, the 11th Circuit overturned the district court's dismissal of their lethal injection challenges and remanded the case for further proceedings.]

 

Three Years Later, Report Explores Lessons From Two North Carolina Death-Penalty Exonerations

Posted: September 5, 2017

On the third anniversary of their groundbreaking exoneration, a new report by the Center for Death Penalty Litigation (CDPL) reviews in-depth the long path from wrongful convictions and death sentences to freedom traveled by former North Carolina death-row prisoners Henry McCollum and Leon Brown. By the time DNA evidence exonerated the brothers of the 1983 rape and murder of 11-year-old Sabrina Buie, McCollum had spent 30 years on death row and Brown was serving a life sentence for Buie's rape, after his murder conviction and death sentence had been overturned. Justice Antonin Scalia had singled out the case as epitomizing why there should be a death penalty. According to the report, if not for a single cigarette butt, “Henry and Leon would likely have remained in prison for the rest of their lives. Henry might have been executed.” Although no physical evidence connected the brothers to the murder, the 19-year-old McCollum had signed a written confession that asserted he and three others had raped Buie and murdered her by stuffing her panties down her throat. His younger brother, Leon Brown, then 15 years old, also confessed to the crime. However, the CDPL report, Saved From Execution: The Unlikely Exoneration of Henry McCollum, notes that the two intellectually disabled teenagers had been "naive, powerless, and intimidated by a cadre of law enforcement officers ... into signing false confessions. Every gory detail in those confessions," the report recounts, "was provided by investigators ..., but law enforcement never followed up on clues that might have led to the real killer. An overzealous prosecutor with a flair for courtroom theatrics hyped the manufactured evidence. And the state illegally withheld facts that might have allowed Henry and Leon’s attorneys to prove their innocence." The CDPL represented McCollum for two decades. Gretchen Engel, the Center's Executive Director, said the case “shows us the power that law enforcement and prosecutors have in our system, and how that power can be abused. It shows us how hard it is to uncover a wrongful conviction. It shows us that even cases we think are airtight can get the facts entirely wrong.” In 2005, testing on the cigarette butt had produced DNA that did not match either McCollum or Brown, but their convictions remained unaffected. Then, in 2009, Brown—having exhausted his appeals in his non-capital case—sought review from the North Carolina Innocence Inquiry Commission, one of the few such commissions in existence in the country. In 2014, the Inquiry Commission ordered more advanced DNA testing of the cigarette butt, and the results matched another man who had lived around the corner from the Buies in 1983 and who raped and killed another young woman later that year. In 2015, Gov. Pat McCrory granted McCollum and Brown pardons based on innocence. Since being freed from 30 years of incarceration (including 10 years in solitary confinement and numerous sexual assaults at the hands of other prisoners), Brown has been diagnosed with schizophrenia and bipolar disorder and repeatedly hospitalized for mental health problems, including hallucinations and depression.

 

REPORT: Most of the 26 Prisoners Facing Execution in Ohio Through 2020 Severely Abused, Impaired, or Mentally Ill

Posted: September 1, 2017

Almost all of the 26 men scheduled for execution in Ohio over the next three years suffer from mental, emotional, or cognitive impairments or limitations that raise questions as to whether they should have been sentenced to death, according to a new report released August 30 by Harvard's Fair Punishment Project. While the U.S. Constitution requires that the death penalty be reserved for the worst crimes and the worst offenders, the report—Prisoners on Ohio's Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age—says that, instead, these prisoners "are among the most impaired and traumatized among us." The report says Ronald Phillips, whom Ohio executed July 26, was "19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse – information his trial lawyers never learned or presented to a jury." It says at least 17 of the 26 other condemned prisoners Ohio seeks to execute between September 2017 and September 2020 experienced serious childhood trauma, including "physical abuse, sexual abuse, neglect, and exposure to serious violence"; at least 11 have evidence of "intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury"; and at least 6 "appear to suffer from a mental illness." Jessica Brand, the Project's Legal Director, describes what has happened in these cases as a "horrible trifecta" in which "people who are the most impaired received some poor representation at some time in their cases and then are facing the most severe penalty possible." The Ohio Alliance for a Mental Illness Exemption from the death penalty, which is supporting an Ohio bill seeking to ban the use of capital punishment against the severely mentally ill, issued a press statement in which they noted that two of the prisoners are so mentally ill that they should be categorically exempted from the death penalty. A Death Penalty Information Center review of Ohio’s 2017-2020 scheduled executions shows that more than 60% of the execution warrants are directed at prisoners who were sentenced to death before Ohio had adopted its life-without-parole sentencing option and jurors had to weigh the death penalty against the risk that a prisoner would be released back into society. Mirroring trends repeated across the country, death sentences fell dramatically in Ohio when the state amended its death-penalty law to make life without parole available as a sentencing alternative. Death sentences dropped by 2/3rds in the state over the next decade, from an average of 12.7 per year to 4.3. The data suggests that juries would likely have treated evidence of intellectual disability, mental illness, or behavioral problems arising from chronic abuse and trauma very differently if they had assurances that the defendants would not later be released if sentenced to life.     

 

Florida Supreme Court Upholds Removal of Prosecutor From Death-Eligible Cases

Posted: August 31, 2017

The Florida Supreme Court has upheld Governor Rick Scott’s (pictured, left) removal of Orange and Osceola County State Attorney Aramis Ayala (pictured, right) as prosecutor in more than two dozen murder cases because of her official policy not to seek to seek the death penalty. Over two dissents, the seven-member Court held that Scott had acted “well within the bounds of the Governor’s broad authority” when he replaced Ayala with Lake County State Attorney and death-penalty proponent Brad King in cases that could be eligible for the death penalty under Florida law. On March 16, Ayala—the first African American elected as a Florida state attorney—announced that her office would not pursue the death penalty in any homicide cases, saying the use of capital punishment was “not in the best interests of this community or in the best interests of justice." That day, Governor Scott issued an executive order removing her from the case of Markeith Loyd, charged in the killing of an Orlando police officer, and appointing King to prosecute the case. He has since issued executive orders removing Ayala and appointing King in at least 26 other murder cases. Against a backdrop of racial discrimination, Ayala—supported by the Florida Legislative Black Caucus and a group of lawyers, legal experts, and retired judges—argued that Scott’s action was a power grab that threatened the autonomy of locally elected prosecutors to exercise their discretion in charging and sentencing practices. The court flatly rejected that argument, saying that “adopting a blanket policy against the imposition of the death penalty is in effect refusing to exercise discretion and tantamount to a functional veto” of Florida’s death-penalty law. The two women on the court, Justice Barbara Pariente, joined by Justice Peggy A. Quince, dissented. Justice Pariente wrote: “This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.” Ayala’s decision “not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments,” she wrote “was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources.” Governor Scott hailed the decision as “a great victory.” Shortly afterwards, Ayala issued a statement saying she respects the ruling and announcing the formation of a death penalty review panel that will evaluate first-degree murder cases and recommend whether to seek the death penalty. “With implementation of this Panel,” the statement said, “it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly."

 

50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Posted: August 30, 2017

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

 

Texas Execution Stayed to Permit Proper Consideration of Intellectual Disability Claim

Posted: August 29, 2017

A Texas appeals court has stayed the August 30 execution of Steven Long (pictured) to provide him an opportunity to litigate a claim that he is ineligible for the death penalty because of intellectual disability. On August 21, the Texas Court of Criminal Appeals issued the stay and remanded Long's case to a Dallas County trial court, directing the court to reconsider his claim of intellectual disability in light of the U.S. Supreme Court's March 2017 ruling in Moore v. Texas. The Texas courts had previously rejected Long's intellectual disability claim, but had applied an overly harsh definition of intellectual disability that was declared unconstitutional in Moore. Long was convicted and sentenced to death in Dallas for the rape and murder of an 11-year-old girl in 2005. Although the U.S. Supreme Court had ruled in Atkins v. Virginia in 2002 that it was unconstitutional to apply the death penalty to a person with Intellectual Disability—then known as mental retardation—and had previously ruled in a Texas case in 1989 that juries must consider a defendant's mental retardation as a potential basis to spare his or her life, Long's trial lawyer did not have him evaluated for mental retardation. In May 2008, his post-conviction lawyers raised the issue in his state habeas corpus proceedings, and the state courts rejected his claim, analyzing the issue under the "Briseño factors," a non-scientific series of questions developed by the state court in the case of Jose Garcia Briseño. Mr. Long then raised—and lost—the issue in the Texas federal district court, with the U.S. Court of Appeals for the Fifth Circuit refusing to consider his appeal. However, on March 28, 2017, the U.S. Supreme Court struck down Texas's use of the Briseño factors, and less than one month later Long filed a petition in the U.S. Supreme Court asking the Court to apply its ruling in Moore to his case. While that appeal was pending and briefing was ongoing, Texas scheduled an execution date for Long during a period in which the Court was in summer recess. Long filed an application for a stay of execution in the Supreme Court. He then filed a new habeas petition in state court on August 3, 2017, reasserting the intellectual disability claim the state courts had initially denied and sought a stay of execution in the Texas Court of Criminal Appeals. The state court wrote, "In light of this new law and the facts of applicant’s application, we have determined that applicant’s execution should be stayed pending further order of this Court." Briefing has been completed on his petition seeking U.S. Supreme Court review, and a decision is expected in early October on whether the Court will review his case. 

 

Oklahoma to Have Longest Hiatus Between Executions in Modern Death-Penalty History

Posted: August 28, 2017

Oklahoma will not execute anyone in 2017 and, without an execution protocol in place, cannot seek any execution dates through at least January 2018, marking the longest period of time between executions in the state in the modern era of capital punishment. As part of an agreement in a federal lawsuit challenging the state's execution procedures, the Oklahoma Attorney General's office may not request execution dates for any prisoner for at least five months after the state adopts a new execution protocol. According to an August 22 report by FOX 25 news in Oklahoma City, the state's Department of Corrections has not adopted a new protocol and the state attorney general's office says it has not been notified of any pending changes to execution procedures. Oklahoma—whose 112 executions rank third among U.S. states since the 1970s—has not carried out any execution since January 15, 2015, when it violated its protocol by using an unauthorized drug in the execution of Charles Warner. The only other time there had been a three-year hiatus between executions since the state resumed executions in 1990 was from March 13, 1992 to March 20, 1995, between the executions of Olan Robison and Thomas Grasso. The current halt in executions comes in the wake of three consecutive botched execution attempts in the state. In April 2014, Oklahoma botched the execution of Clayton Lockett, who died of a massive heart attack as prison officials were attempting to call off the execution. In September 2015, the governor halted the execution of Richard Glossip at the last moment after learning that state officials had again obtained the same wrong drug it had used to execute Warner. Since then, a grand jury has issued a scathing report detailing "blatant violations" of the state's execution protocol, key corrections officials involved in the botched executions have retired, and an independent, bipartisan commission has reviewed the entire capital-punishment system in Oklahoma and recommended a moratorium on executions until the state enacts "significant reforms" at all stages of the state's death-penalty process. 

 

California Supreme Court Upholds, But Limits, Initiative to Speed Up Death-Penalty Appeals

Posted: August 25, 2017

In a 5-2 decision that left both proponents and opponents of the death penalty declaring victory, the Supreme Court of California has upheld the constitutionality of Proposition 66, a voter initiative intended to speed up death-penalty appeals and executions, but severely limited the scope of its core provisions. In Briggs v. Brown, the court on August 24 sustained portions of the measure that shifted which court will hear capital cases, increased the pool of death-penalty appeal lawyers by requiring lawyers who accept other appellate appointments to also take capital cases, eliminated public review of execution methods, and limited both the issues that can be raised in capital habeas appeals and the time courts have to decide them. However, the majority ruled that the measure’s flagship provision—a five-year deadline on appeals by condemned prisoners—was "directive, rather than mandatory"; that "courts must make individualized decisions based on the circumstances of each case"; and that "prisoners may seek to challenge [the time limitations and limitation on the claims they are permitted to raise] in the context of their individual cases." Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, who argued in support of Proposition 66 in the California Supreme Court, lauded the decision, saying that "Proposition 66 will go into effect almost entirely as written." He called the time limits for deciding appeals a “minor part” of the proposition. Scheidegger said "Californians finally have a chance to see justice carried out in the very worst murder cases." Death penalty opponents sharply disagreed with his characterization. Ana Zamora, criminal justice policy director for the ACLU of Northern California, said “Today’s decision changes nothing. The fact remains that California has not carried out an execution in over 10 years and executions will not resume any time soon.” Christina Von der Ahe Rayburn, who argued the case against the proposition, said the ruling had rendered the deadlines in Proposition 66 "toothless," allowing courts to continue to perform their "critical role in carefully reviewing the appeals of the state's death row inmates, in order to avoid the execution of an innocent person." The justices questioned the efficacy of the proposition and whether it could accomplish its stated aims. "We do not consider or weigh the economic or social wisdom or general propriety of the initiative," the court wrote. "It remains to be seen how effective the procedures enacted by Proposition 66 will be in expediting the capital posttrial review process." Justice Goodwin Liu, concurring in the court's decision, wrote "I find it stunning that Proposition 66’s proponents and the Attorney General claim that the voters intended the five-year limit to be nonbinding or aspirational when that claim is plainly belied by the ballot materials and advocacy campaign for Proposition 66." He said “Proposition 66 contains no plan to compress into five years a process that often takes two decades, and no entity – not this court, not the Judicial Council, not the Legislature – can simply wave a magic wand and make it so.” Santa Clara University law professor Gerald Uelmen, who served as executive director of a state senate commission that undertook a comprehensive review of the state's death penalty in 2008, said several of the provisions in Proposition 66 may actually increase delays in deciding death penalty cases. “It is just going to boggle up the system even more,” he said.

 

Florida Death-Penalty Practices, Mark Asay Execution Draw Criticism From Human Rights Groups, Johnson & Johnson

Posted: August 24, 2017

As Florida prepared to execute Mark Asay (pictured) on August 24, the state’s death-penalty practices came under fire from human rights groups, criminal justice reformers, and one of the world’s largest pharmaceutical companies. Asay was executed despite the Florida Supreme Court’s recognition that his death sentence—imposed by a judge after three jurors had voted for life—was unconstitutionally imposed and that the court mistakenly believed both of Asay’s victims were black when it upheld his death sentence for what it believed to have been two racially motivated killings. Asay's execution also drew criticism from Johnson & Johnson, the world’s largest pharmaceutical company. Its pharmaceutical division, Janssen Pharmaceuticals, condemned the state’s proposed use of the drug etomidate, which the company invented a half-century ago exclusively for medical use. Asay’s execution has been described as a twist on Florida’s racially disproportionate use of capital punishment. His execution made him the first white defendant since the state brought back capital punishment in the 1970s to be put to death for the murder of any black victim. In December 2016, African-American Florida Supreme Court Justice James Perry—in dissenting from the court’s decision to lift a stay of execution for Asay—described this “sad statistic” as a “reflection of the bitter reality that the death penalty is applied in a biased and discriminatory fashion, even today.” To date, all 57 white prisoners executed in Florida in the modern era were condemned for killing at least one white or Latino victim. In that same time period, Florida has executed 28 black death-row prisoners, with more than 70% condemned for the interracial murder of at least one white victim. On August 21, Amnesty International issued a new report, USA: Death in Florida, saying that the Asay execution and Governor Rick Scott’s decision to remove Orlando State Attorney Aramis Ayala from 27 homicide prosecutions provided “a moment to reflect upon an often overlooked aspect of Florida’s history—that it was a leader in lynching in the South and slow to eradicate this phenomenon in the 20th century.” The Amnesty report noted that Ayala, the first African American to be elected as a Florida state attorney, had cited systemic racial discrimination as one of the flaws in capital punishment that led to her decision that pursuing the death sentences in first-degree murder prosecutions was “not in the best interests of the community” or “the best interests of justice.” It also highlighted her replacement, Brad King, a white prosecutor whose “well-established” support for the death penalty, Amnesty said, included “act[ing] as lobbyist-in-chief for the Florida prosecutorial community” in legislative efforts to oppose requiring unanimous jury recommendations for death. Asay’s execution was the first ever in which a state has used the injectable sedative etomidate. As part of its three-drug process, Florida then administered rocuronium bromide as a paralytic drug and potassium acetate to stop the heart. In a statement issued on August 21, Janssen said: “Janssen discovers and develops medical innovations to save and enhance lives. … We do not condone the use of our medicines in lethal injections for capital punishment." The human rights organization, Reprieve, issued a statement saying that “Governor Scott should listen to clear and unequivocal statements from Johnson & Johnson and others calling time on this dangerous misuse of medicines, and stay the execution of Mark Asay.” The state and federal courts denied Asay's applications to stay his execution and he was put to death on August 24.

 

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