The U.S. Court of Appeals for the Fifth Circuit has reversed a ruling by a Texas federal district court that had denied Scott Panetti (pictured), a severely mentally ill death-row prisoner, the appointment of counsel and funding for a mental health expert and investigator to evaluate his competency to be executed. In a 2-1 ruling issued July 11, 2017, the Fifth Circuit, noting that "a decade has now passed since the last determination of whether this concededly mentally ill petitioner is competent to be executed," ordered Panetti's case returned to the lower federal court to appoint counsel, provide funds for an evaluation, and grant counsel sufficient time to prepare a petition on Panetti's competence. Under the U.S. Supreme Court's 1986 ruling in Ford v. Wainwright, prisoners who become mentally incompetent—that is, so mentally ill or cognitively impaired that they are "unaware of the punishment they're about to suffer and why they are to suffer it"—cannot be executed. Panetti has twice been granted stays of execution related to his mental health and competency to be executed. In 2007, the U.S. Supreme Court ruled that the Texas federal courts had misapplied the Ford standard when they ignored the effect of Panetti's paranoid schizophrenic delusions on whether he had a rational understanding of his pending execution. The Court wrote: "Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose." On remand, the lower courts denied Panetti's challenge to his competency without providing him a lawyer and a mental health evaluation to develop his claim. In a statement, Panetti's lawyers said, "We are grateful that the court found that Mr. Panetti’s nearly four decades of documented schizophrenia and severe mental illness provided a sufficient showing to obtain experts and resources to pursue the claim that he is currently incompetent for execution.... Mr. Panetti has not been evaluated by any mental health experts since 2007 and his severe mental illness has only worsened while in prison. We are confident that when the lower court is presented with all the evidence, it will find that Mr. Panetti, a schizophrenic man who insisted on representing himself at trial and attempted to subpoena the Pope, John F. Kennedy, and Jesus Christ, is not now competent for execution."
Journal of Psychiatrist Who Presided Over 14 Texas Executions Reveals Mental Toll That May Have Contributed to SuicidePosted: July 11, 2017
As a psychiatrist in the Wayne Unit of Texas' Huntsville prison from 1960 to 1963, Dr. Lee Hartman presided over 14 electric-chair executions. When his grandson, Ben Hartman, a journalist, began investigating Dr. Hartman's life, he discovered journals that chronicle those executions and the psychological toll they took, possibly contributing to Dr. Hartman's suicide in 1964. Dr. Hartman's journals contain basic data on the men who were executed, including their names, race, a summary of the crime, and notes on the execution itself. More profoundly, though, they capture Dr. Hartman's reactions to his experiences and how they shaped his views on the death penalty, leaving him—in his grandson's words—"a determined opponent of capital punishment." In 1962, Dr. Hartman wrote, "The death penalty is irreparable." After the highly-publicized execution of Howard Stickney, a 24-year old who professed his innocence, Dr. Hartman wrote, "Very shook up and angry over whole cruel mess." He had been with Stickney on his scheduled November 10, 1961 execution date as they neared the door to the execution chamber. The journal reports that the phone rang at 12:32 a.m. with news that a judge had granted a 10-day stay of execution. This was "[a]pparently a complete surprise to Stickney," the journal entry says, "who broke down, prayed and wept.” In May of 1962, still professing his innocence, Stickney exhibited "[d]ignity and grace, shook hands with several guards while waiting, didn’t want to take coat off.” The journal reports: "At 12:24, warden returned–no stay, Stickney quietly sat in chair." Three separate jolts of electric current were sent through his body, "1st shock at 12:25–dead at 12:30.” Elsewhere in the journal, Dr. Hartman wrote 19 pages on arguments for and against capital punishment, clearly setting out his views. “The death penalty has a brutalizing and sadistic influence on the community that deliberately kills a member of its group,” he wrote, permitting the public “to vicariously indulge in vicious and inhumane fantasies under socially-acceptable guises.” He wrote: "The death penalty is not applied impartially. There is such surfeit of these cases that to mention them would be redundant. The poor defendant is obviously at a disadvantage and frequently receives the extreme penalty while the wealthier accused escapes a prison term. There is well known discrimination on racial or class lines." Dr. Hartman struggled with depression for many years, spending several months in a mental hospital after working in the prison. In 1964, he committed suicide by taking an overdose of pentobarbital, a drug now used to execute prisoners in Texas.
Something went wrong during the execution of Ricky Gray (pictured), who was put to death in Virginia on January 18, 2017, according to an independent expert who reviewed the official autopsy report of Gray's death. Dr. Mark Edgar, associate director of bone and soft tissue pathology at the Emory University School of Medicine, reviewed the official autopsy report, which Gray's family obtained from the Virginia medical examiner's office. Dr. Edgar says Gray suffered an acute pulmonary edema during the execution, with liquid in his upper airways and blood entering his lungs while he was still breathing. “The anatomic changes described in Ricky Gray’s lungs are more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy." Edgar said. "This is of concern especially given the fact that midazolam is not an anesthetic, but a sedative often used for medical procedures requiring conscious sedation and the issue that the compounded drugs used in this case may have lacked potency or been impure.” Virginia's lethal-injection protocol consists of three drugs: midazolam, a sedative intended to render the prisoner unconscious, followed by a paralytic intended to stop the prisoner's breathing, followed by potassium chloride, which stops the prisoner's heart. The use of midazolam in executions is controversial because it is not an anesthetic, it is used in medical settings only for lower levels of sedation rather than to produce full unconsciousness, and its use has been linked to numerous problematic executions. In Virginia, both the midazolam and the potassium chloride are produced by compounding pharmacies whose identities are secret under state law. “This way of dying is intolerable. You can’t control your breathing—it is terrible,” Edgar said. “When it is this severe, you can experience panic and terror and, if the individual was in any way aware of what was happening to them, it would be unbearable.” After Edgar's report was released on July 6, lawyers for William Morva—whose execution was scheduled in Virginia that night—asked Governor Terry McAuliffe for a temporary reprieve. “We believed a reprieve was appropriate to allow time for further investigation to ensure that the Commonwealth carries out future executions—including Mr. Morva’s—in a manner that avoids unnecessary pain and suffering,” explained Rob Lee, one of Morva's attorneys. McAuliffe denied the reprieve, and witnesses reported that Morva made a loud noise after the midazolam was administered and had several sharp contractions of his abdomen. The same three-drug protocol used in Virginia has been proposed for use in Ohio, but is being challenged in court by death-row prisoners.
Resentencing of Intellectually Disabled Prisoner Highlights Death Penalty Decline in South Carolina and NationwidePosted: July 7, 2017
In 1989, William Henry Bell, Jr. was convicted of murdering an elementary school principal. Nearly 30 years later, South Carolina's Free Times reports that the reversal of his death sentence because of intellectual disability provides evidence of the death penalty's continuing decline in the state and across the country. At the time of the murder, Bell maintained that he was innocent, but after four days in jail, he confessed to the murder. Prior appeals—including one alleging a pattern of racially discriminatory charging practices in interracial crimes involving black defendants and white victims—failed for 25 years, until a trial judge in November 2016 determined that Bell was ineligible for capital punishment because he had Intellectual Disability. In May 2017, the state attorney general's office decided it lacked grounds to appeal the court's decision, leaving Bell to face resentencing with a maximum penalty of life without parole. Emily Paavola, one of Bell's attorneys, said the case fits into a larger narrative of South Carolina's declining use of capital punishment. “It is increasingly hard to justify retaining the death penalty in South Carolina. Prosecutors rarely seek it, juries more rarely impose it, and even when the rare individual is sentenced to death, the odds are that the defendant will not be executed. We can no longer afford the financial and social costs of such a broken system,” she wrote. The last execution in South Carolina took place in 2011, and since that time only one person has been sentenced to death in the state. Similar declines have occurred nationwide, with death sentences and executions both dropping sharply in recent years. Fewer people were sentenced to death in 2016 than in any year since states began re-enacting the death penalty in 1973, and executions in 2016 were at their lowest level in 25 years.
Orange County, California Sheriff Sandra Hutchens appeared before Superior Court Judge Thomas M. Goethals (pictured) on July 5 to explain her department's 4-1/2-year failure to comply with court orders directing the department to produce documents related to a multi-decade practice in the county of misusing prison informants to illegally obtain incriminating statements from accused defendants. In May 2015, Judge Goethals barred the entire Orange County District Attorney's office from participating in the sentencing of Scott Dekraai—who has pleaded guilty to eight killings in a Seal Beach salon in 2011—for withholding evidence about the informant program and lying about its existence. Hutchens—who was appointed sheriff in 2008 following the conviction of the prior sheriff on corruption charges—denied that her office had systemically housed informants with targeted defendants, calling the description of the office's practice “a matter of semantics." “There is no program, per se,” she said. “There is activity.” Deflecting responsibility for the illegal questioning of defendants by informants and the destruction of logs describing the informant program, Hutchens said “There may have been a few deputies who took their duties to different levels than were authorized.” She explained her department's failure to turn over documents whose production had been ordered by the court by saying of her subordinates, “They possibly did not look hard enough.” Hutchens testimony came a week after Sheriff's Deputy Jonathan Larson testified that officers in the Sheriff's Department's Special Handling Unit had been tasked with developing snitches and intentionally placing them near pretrial prisoners to obtain confessions. Larson said he had "assumed" the practice was allowable because it was "approved by our sergeants and lieutenants." Larson also testified that he was certain he had made entries in the Special Handling Unit's log during a four-month period in 2011 that is now missing from the record. Lieutenant Mike McHenry had previously testified that perhaps all of the deputies in the unit simply forgot to make entries during that period. Orange County was one of the 6 most prolific producers of death sentences in the U.S. from 2010 to 2015, a period included in Judge Goethals' investigation into misconduct by the Sheriff's Office and the District Attorney's Office. The sentencing of Dekraai, which brought the informant scandal to light, is now being handled by the California Attorney General's Office, which intends to continue pursuing the death penalty. Bethany Webb, whose sister, Laura Webb-Elody, was allegedly killed by Dekraai, wrote an op-ed for The Los Angeles Times opposing the death penalty in the case. "Over and over again, the authorities have tried to bring families closure through the death penalty, but have succeeded only in keeping old wounds open," she wrote. "Through these painful years, it’s become clear that personal and political ambition have so corrupted the death penalty process that it does not serve us, nor does it serve the interests of justice."
Three thousand vials of the anesthetic sodium thiopental that three states attempted to illegally import into the United States for use in executions have now expired, according to an investigative report by BuzzFeed News. Arizona, Nebraska, and Texas each purchased 1000 vials of the drug in 2015 from a questionable supplier in India called Harris Pharma, despite warnings from the Food and Drug Administration (FDA) that importation of the drug would violate federal law. Citing documents obtained from the FDA through a public records request, BuzzFeed reports that the sodium thiopental in the shipments expired in May 2017. The FDA confiscated the sodium thiopental Arizona and Texas attempted to bring into the country after U.S. Customs and Border Protection agents seized the shipments at airports in Phoenix and Houston. Federal officials justified their action saying that a 2012 court order "requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug." FedEx halted Nebraska's shipment in India because of "improper or missing paperwork." Harris Pharma, the company that sold the drugs, claimed to have manufactured the sodium thiopental itself, but the facilities it registered with the FDA and the Drug Enforcement Administration were not equipped to produce pharmaceuticals. Harris had, in fact, purchased the drug from another Indian manufacturer and resold it to the three states at a substantially inflated price. The sole U.S. manufacturer of sodium thiopental halted production in 2011 over ethical concerns about the use of the product in executions. In January 2017, Texas sued the FDA in federal court over the agancy's continued detention of the drugs without having issued a formal decision on the disposition of the drugs. The FDA issued a final order in April 2017 refusing to release the drugs to Arizona and Texas, and Texas has challenged that ruling. A spokesperson for the Texas Department of Criminal Justice said the state's lawsuit against the FDA would continue, despite the expiration of the drugs. Last year, a Texas official whose name was redacted from official documents said in an affidavit that the state, "intends to continue importing thiopental sodium from the same foreign source, and with the same labeling, as the entry that FDA is currently detaining."
Equal Justice Initiative Report on Lynchings Outside the Deep South Suggests Links to Capital PunishmentPosted: July 3, 2017
Lynching has long been regarded as a regional phenomenon, but in an updated edition of its landmark 2015 report "Lynching in America: Confronting the Legacy of Racial Terror," the Equal Justice Initiative (EJI) has now documented more than 300 lynchings of African Americans in states outside the Deep South. "Racial terror lynching was a national problem," said EJI Director Bryan Stevenson (pictured). More than six million African American migrants fled "as refugees and exiles from terror in the American South," but the racial terror often followed them. "Hundreds of lynchings took place outside the American South," he said. The original EJI lynching report documented more than 4000 racial terror lynchings in 12 Southern states, and described the historical link between lynching and the modern-day death penalty. The new edition tracks lynchings in eight states in the Midwest and Upper South: Oklahoma (76), Missouri (60), Illinois (56), West Virginia (35), Maryland (28), Kansas (19), Indiana (18), and Ohio (15). The pattern of lynchings suggests a continuing link to modern capital punishment: Oklahoma and Missouri rank second and fifth in the number of executions in the U.S. in the last fifty years and have executed far more prisoners than any other states outside the Deep South. Working with Google, EJI has created an interactive website providing audio, video, and maps to tell the stories of the victims of racial terror and illuminate the geographic patterns of lynching. “These lynchings were intentionally barbaric, torturous, gruesome,” Stevenson said, and often whole communities actively participated in the public spectacle. "Our collective failure to acknowledge this history has created a contemporary political culture that doesn't adequately value the victimization of people of color today," he said. In an interview with The Washington Post, Stevenson explained how the legacy of lynching affects today's criminal justice system, and the death penalty in particular. When the U.S. Supreme Court upheld capital punishment in 1976, Justice Potter Stewart justified capital punishment as an advance from "self-help, vigilante justice, and lynch law." “They started trying people inside." Stevenson said, "and they had the same kind of unreliable verdicts and the same kind of death sentencing and the same kind of abuse of people of color in the courtroom that existed outside the courthouse during the lynching era."
As we reach the mid-point of the year, executions and new death sentences are on pace to remain near historic lows in 2017, continuing the long-term historic decline in capital punishment across the United States. As of June 30, six states have carried out 13 executions, with 30 other executions that had been scheduled for that period halted by judicial stays or injunctions, gubernatorial reprieves or commutation, or rescheduled. By contrast, at the midpoint of 2016, five states had carried out 14 executions, and 25 other executions had been halted. 12 executions are currently scheduled for the rest of 2017, with 8 others already halted, and several more death warrants are expected to be issued. Depending on whether Ohio carries out the five executions pending between now and December, DPIC anticipates a slight increase in executions in the U.S. from 2016's 26-year low. However, even with the spate of four executions carried out in Arkansas from April 20-27—that state's first executions since 2005—there will likely be fewer executions in 2017 than in any other year since 1990. New death sentences also remain near historically low levels. DPIC has confirmed at least 16 new death sentences so far in 2017, a pace very close to the record-low 31 new death sentences imposed in 2016. Florida's abandonment of non-unanimous jury recommendations of death and Alabama's repeal of judicial override of jury recommendations for life are expected to substantially reduce the number of new death sentences in those states. The death sentences of nearly 100 Florida death-row prisoners have been overturned as a result of the state supreme court's declaration than non-unanimous death sentences are unconstitutional, and courts in Delaware and Connecticut have continued emptying those state's death rows after their death penalty statutes were declared unconstitutional. Three people have been exonerated from death row in 2017—Isaiah McCoy in Delaware, Rodricus Crawford in Louisiana, and Ralph Daniel Wright, Jr. in Florida—bringing the number of death-row exonerations in the U.S. since 1973 to 159. There have also been three grants of clemency in the first half of 2017, bringing the national total since 1976 to 283. President Barack Obama granted clemency to federal death-row prisoner Abelardo Arboleda Ortiz and military death-row prisoner Dwight Loving, and Virginia Governor Terry McAuliffe granted clemency to Ivan Teleguz. All three are now serving sentences of life without parole. The U.S. Supreme Court has issued three significant decisions in 2017 in favor of death-row prisoners. On February 22, in Buck v. Davis, the Court granted relief to Duane Buck due to racially biased testimony on the issue of future dangerousness. A month later, in Moore v. Texas, the Court unanimously struck down Texas' outlier practice for determining intellectual disability in capital cases. In McWilliams v. Dunn, the Court found on June 19 that James McWilliams' constitutional rights were violated when Alabama failed to provide him assistance of an independent mental-health expert. The Court ruled against Texas death-row prisoner Erick Davila on June 26.
A divided U.S. Court of Appeals for the Sixth Circuit on June 28 reversed the decision of a federal district court that had stayed executions in Ohio. In an 8-6 en banc decision, the court voted to allow Ohio to proceed with executions using a proposed combination of the controversial sedative midazolam, the paralytic drug pancuronium bromide, and the heart-stopping drug potassium chloride. Midazolam has been implicated in botched executions in Alabama, Arizona, Ohio, and Oklahoma and flawed executions in Arkansas. After a five-day evidentiary hearing in early January 2017, the District Court issued a preliminary injunction that stayed the executions of Ohio death-row prisoners Ronald Phillips, Raymond Tibbetts, and Gary Otte. At that time, it found "that administration of a paralytic drug and potassium chloride will cause a person severe pain" that would not be amerliorated by using midazolam, that the protocol itself created a "substantial" and "objectively intolerable" risk of serious harm, and that a compounded version of the drug pentobarbital was available as an alternative method of execution. The State appealed that decision to the Sixth Circuit, and in April, a three-judge panel affirmed the lower court's decision. The State then appealed that decision to the full court (a procedure called en banc review). The majority agreed that the prisoners "have shown some risk that Ohio’s execution protocol may cause some degree of pain," but said "some risk of pain 'is inherent in any method of execution—no matter how humane'” and "the Constitution does not guarantee ‘a pain-free execution.’” Allen Bohnert, one of the lawyers for the prisoners, said in a statement: "Multiple executions have demonstrated that midazolam is not a suitable drug for lethal injection, and especially when used with the two excruciatingly painful drugs Ohio abandoned in 2009. ... Ohio should not take the risk of continued botched executions by going back to using these dangerous, unsuitable drugs." He said the prisoners will seek review of the decision in the U.S. Supreme Court because "[n]o one in Ohio wants to see another botched execution." The decision permits Ohio to move forward with 30 executions that are scheduled between this month and 2021, while the District Court conducts a full trial on the lethal-injection challenge brought by death-row prisoners. Ohio has scheduled the execution of Ronald Phillips for July 26.
New Podcast: Duane Buck's Appeal Lawyer Tells Story of His Case, Discusses Future Dangerousness and Racial BiasPosted: June 28, 2017
In DPIC's latest podcast, NAACP Legal Defense and Educational Fund Litigation Director Christina Swarns (pictured, center, outside the U.S. Supreme Court following the argument in Buck v. Davis) discusses the issues of race, future dangerousness, and ineffective representation presented in the landmark case. She calls the case—in which a Texas trial lawyer who represented 21 clients sent to death row presented an expert witness who testified that his own client was more likely to commit future acts of violence because he is black—"astonishing" and "a complete failure, literally, of all aspects of the criminal justice system." Swarns argued in the Supreme Court on behalf of Texas death-row prisoner Duane Buck, one of seven death-row prisoners whose trials were tainted by the racist testimony of Texas psychologist Dr. Walter Quijano, who testified that Buck presented a greater risk of future dangerousness because he is black. The Texas Attorney General's office conceded the impropriety of the testimony and agreed to new sentencing hearings in the other cases, but when a new attorney general was elected, opposed relief for Buck. In Texas, a jury must find that a defendant is a future danger to society as a prerequisite to imposing the death penalty, and the prosecutor seized on Dr. Quijano's testimony as a reason to sentence Buck to die. On February 22, 2017, nearly 20 years after his trial and after all state and federal courts to have considered his case had denied relief, the Supreme Court overturned Buck’s death sentence. In a conversation with DPIC Executive Director Robert Dunham, Swarns explains how Buck's case made its way to the Supreme Court, and how racial bias and the concept of future dangerousness are inextricably linked. Texas had argued that Quijano's testimony, while improper, was harmless because his and the prosecutor's comments on race were very short. Swarns, however, explains that "[t]he race-as-dangerousness link is so pernicious and so ingrained in history and culture and the death penalty in this country, that ... the explicit introduction of that evidence by a defense expert can only be deeply prejudicial ... no matter how many lines of transcript space it occupies." Chief Justice John Roberts, writing the Court's majority opinion, agreed, stating, "When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses." Later in the discussion, Swarns places the Buck case in the broader context of the historically racially discriminatory application of the death penalty in the U.S. "This is a story as old as the death penalty itself," she says. "There has never been a time, there has never been a place in the administration of the death penalty where there isn't a race effect. Period. Hard stop."