Death Penalty

  • May 18, 2016
    Guest Post

    by Ronald S. Sullivan, Jr., Clinical Professor of Law and Faculty Director of the Criminal Justice Institute, Harvard Law School            

    This week the United States Supreme Court will consider the case of Lamondre Tucker, an African-American man who was sentenced to death in 2011―under the banner of the Confederate flag. Tucker was convicted in Caddo Parish, Louisiana, a county that is plagued by racially biased jury selection. One recent study found that African-Americans have been excluded from juries in Caddo Parish at a rate that is three times higher than whites, a practice so insidious that it has earned the nickname “blackstriking.”

    An amicus brief filed by the Charles Hamilton Houston Institute for Race and Justice in Tucker v. Louisiana notes, “Of the twenty death sentences imposed in the modern era by Caddo Parish juries, fifteen were imposed on Black defendants. Of those fifteen, ten were charged with the murder of a white victim. Conversely, no white defendant has ever been sentenced to death in Caddo Parish for killing a Black victim. Taken at face value, these numbers suggest that the badges of the Confederacy adorning the courthouse entrance in Caddo Parish signify more than stale remnants of a bygone era.”

    Unfortunately, Tucker’s case is not an isolated incident. Just last month, Kenneth Fults was executed by the state of Georgia despite being represented by a lawyer known for using racial slurs. Fults, an African-American man, was accused of killing a young white woman. After the trial, one of the jurors reportedly explained, "that n***r got just what should have happened . . . I knew I would vote for the death penalty because that’s what that n***r deserved."

    Duane Buck’s case was equally contaminated by racial bias. Buck, an African-American man, was sentenced to death for a crime that occurred 20 years ago after a defense expert testified that Buck’s race was a relevant predictor of his future dangerousness. The prosecutor subsequently asserted that "the race factor, black, increases the future dangerousness . . ." The Texas jury sentenced Mr. Buck to death based upon the finding that he was likely to be a danger in the future. Mr. Buck has asked the U.S. Supreme Court to review his case.

    In South Carolina, Johnny Bennett had his death sentence reversed by U.S. District Judge Mark Gergel because the prosecutor, Donnie Myers, called Bennett, an African-American man, “King Kong,” a “beast of burden,” and other racist names during his trial. Myers also highlighted the fact that Bennett had a sexual relationship with a “blonde-headed lady” in order to fan the flames of racial prejudice. The state attorney general has, not surprisingly, announced that he is appealing Judge Gergel’s decision.

    Even when offered a chance to correct injustices of the not-so-distant past, many prosecutors cling to racially tainted verdicts. These cases are not relics of the past, they are evidence that racial bias continues to infect the entire capital punishment system.

  • January 29, 2016
    Guest Post

    by Jessica Pezley, Judicial Clerk, Oregon Circuit Courts

    The debate over the constitutionality of the death penalty took on a renewed vigor last term in Oklahoma’s lethal injection case, Glossip v. Gross, in which Justice Breyer in dissent suggested it “highly likely that the death penalty violates the Eighth Amendment.” While the Court decided 5-4 that Oklahoma’s use of the lethal injection drug midazolam—part one of a three-part drug cocktail meant to numb an individual from the pain caused by the other drugs working to stop the heart—was constitutional, the close vote and impassioned dissent highlighted a growing skepticism of capital punishment in the Court. Flash-forward to this term and the issue was high on the docket with four cases raising procedural questions about the death penalty. Two have since been decided.

    First, in Hurst v. Florida the Court deemed unconstitutional a sentencing scheme that charged the judge, and not a jury, with making the ultimate sentencing decision in capital cases. Decided 8-1, Hurst seemed to indicate the direction the Court would take in its three remaining death penalty cases. Then, just over a week later in Kansas v. Carr/Kansas v. Gleason, the Court voted 8-1 against recognizing additional Eighth Amendment procedural protections. What accounts for this difference? And what do these inconsistent results spell out for the remaining two death penalty cases, Foster v. Chatman and Williams v. Pennsylvania?

    In Carr, the Kansas Supreme Court vacated three death sentences—those of the Carr brothers and of Gleason, a defendant in an unrelated case—because of the lower court’s failure to affirmatively instruct the jury that mitigating factors need not be proved beyond a reasonable doubt, and in the case of the Carr brothers, not allowing severance at the sentencing phase of trial. Kansas’s attorney general challenged this decision, and the Court granted certiorari on the question of whether the Eighth Amendment demands the procedural protections recognized by the Kansas Supreme Court.

    It became readily apparent that the respondents in Carr were in trouble. Justice Scalia halted oral argument to recount, at length, the grisly details of the Carr brothers’ crime spree, known as the Wichita Massacre. It came as no surprise then, when the opinion for the case was handed down, that Justice Scalia, writing for the majority, used over two pages of his 18-page opinion to again hash out the horrendous facts. In the remaining pages, the Court found little trouble in dispensing with the respondents’ arguments.

  • December 1, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. His first book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, was published by Harvard University Press in 2009, and his most recent book, Too Big to Jail: How Prosecutors Compromise with Corporations, was published in 2014.

    Can lawyers stop their own client from challenging his death sentence? Apparently, in Texas, they can. A lawyer’s most fundamental professional obligation is to “zealously” advocate for the client and uphold “justice.” Lawyers cannot give up working on a case, or put their own interests above their client’s. And yet that is what two Texas lawyers appear to have done to death row clients they were appointed to represent.

    Raphael Holiday was just executed in Texas. His two court-appointed lawyers told him that they would no longer contest his execution. “This marks the end of work for your appeals,” they said. They then told Holiday they would not seek clemency from the governor, despite a federal law requiring them to honor the client’s desire to do just that. Facing imminent execution, Holiday told the court, “They have refused to help me and it is a disheartening conundrum I am not fit to comprehend.”

    Holiday, who lacked money to hire his own lawyer, asked for the court to appoint a new one. The lawyers who said they were “not going to file further appeals” for him opposed his request, essentially telling the court that their client had nothing but frivolous claims left. The court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached. Based on the appointed lawyers’ representations, the court refused to assign a new lawyer to the case. Stephen Bright, president of the Southern Center for Human Rights, commented that it was “unconscionable” to prevent Holiday from getting new lawyers and that death penalty lawyers representing clients facing imminent executions “have a duty to make every legal argument they can.”

  • November 9, 2015
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law. Last fall, Harvard University Press published his new book, Too Big to Jail: How Prosecutors Compromise with Corporations.

    The American death penalty is an outlier phenomenon. Fewer states are sentencing fewer people to death. Fewer counties are sentencing people to death within those states. But as outliers go, in the American death penalty world, Florida is in a class of its own. Florida allows, unlike any other state, a jury to be split, unexplained, and non-unanimous in its mere recommendation that the death penalty be imposed. Unlike any other state, Florida allows the judge then to make the actual factual determination that death should be imposed, not the jury. Now the Supreme Court is poised to decide whether this is constitutional.

    The Court heard arguments last month in Hurst v. Florida, one of several death penalty cases on its docket this term. Timothy Hurst was charged with the murder of his co-worker at a Popeye's chicken restaurant. His conviction had already been reversed once because of the ineffective assistance his lawyer provided at his first trial. And the Court is apparently not entertaining the question whether he is intellectually disabled and, as a result, categorically ineligible for the death penalty, another important issue in the case.

    Instead, there is a fundamental question whether the jury in his case really sentenced him to death. Formally, the judge did it. As former Solicitor General Seth Waxman put it at the oral arguments, “Under Florida law, Timothy Lee Hurst will go to his death despite the fact that a judge, not a jury, made the factual finding that rendered him eligible for death.” In Ring v. Arizona, in 2002, the Supreme Court overturned its earlier ruling in the 1990 case Walton v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge. Just about every death penalty state readily complied with that ruling—except Florida.

  • November 6, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    In 1879, the United States Supreme Court declared that the singling out of qualified African Americans for removal from jury service “is practically a brand upon them, affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing individuals of the race that equal justice which the law aims to secure all others.” Although, in the subsequent 136 years, the Supreme Court has repeatedly condemned the practice of racial discrimination in jury selection, today, African Americans are excluded from jury service in ways that “seem[] better organized and more systematized than ever before.” Case in point: Foster v. Chatman, the jury discrimination challenge that was argued to the Supreme Court on Monday, November 2, 2015.

    Foster challenges Georgia prosecutors’ use of peremptory challenges to exclude African-American prospective jurors from the 1987 trial of Timothy Foster, an African-American man with intellectual disabilities who was charged with the murder of a White woman. Peremptory challenges are lawful opportunities for both prosecutors and defense attorneys to excuse prospective jurors from service in a particular trial. But there are limits to their use: In 1986, the Supreme Court held that these challenges cannot be based on race. Nonetheless, in Mr. Foster’s case, the prosecutors struck every single African-American prospective juror. As a result, an all-White jury convicted Mr. Foster of murder and sentenced him to death.

    When challenged, the Foster prosecutors offered a literal laundry list of supposedly race-neutral reasons for each of the strikes they exercised against the African-American prospective jurors. But the prosecutors’ notes, which were uncovered by the defense team some 20 years after Mr. Foster’s conviction, tell a completely different story. A note indicated that green highlighting “represent[s] blacks,” and the names of all the African-American jurors, but none of the White jurors, were highlighted in green. In their notes, the prosecutors referred to the African-American prospective jurors as “B#1, B#2, B#3,” while none of the White jurors were referred to solely by reference to race. In the prosecutors’ list of prospective jurors to strike, the name of every single prospective African-American juror was at the very top. The prosecutors ranked the African-American potential jurors in case they might “have to” seat one of them, but there was no similar ranking of all of the White prospective jurors. And last but not least, the supposedly race-neutral reasons offered by the prosecutors simply do not hold up: For example, the prosecutors said they struck one 34-year-old African-American juror because she was too close to the defendant’s age of 18, even though they accepted multiple White jurors who were actually closer in age to 18.