Death Penalty

  • 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court-appointed lawyers simply gave up on Holiday’s case, even though half of 2015 Texas executions have been stayed or withdrawn, often because lawyers discovered compelling issues as the execution date approached.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.

  • July 1, 2015
    Guest Post

    by Brandon L. Garrett, Professor of Law at the University of Virginia, and Lee KovarskyProfessor of Law at the University of Maryland Carey School of Law.

    *This post originally appeared at The Huffington Post.

    Monday, the Supreme Court Justices delivered their oral opinion summaries in the Term's high-profile death penalty decision, Glossip v. Gross. Rather than reading from his concurring opinion or from a prepared statement, Justice Antonin Scalia -- still frazzled from release of the same-sex marriage cases -- appeared to be improvising. He accused Justice Stephen Breyer and Justice Ruth Bader Ginsburg of expressing personal "policy preferences," and added that the "two justices are willing to kill the death penalty outright rather than just pecking it to death." Why the defensiveness and outrage?

    Glossip was a 5-4 victory for death penalty states, which retained leeway to use new and untested lethal-injection "cocktails." Scalia was part of the majority but he sounded strangely like he was uttering last words. Justice Samuel Alito's presentation of the majority opinion was also unusually defensive and hostile to the dissenters. Justice Alito insists it is "settled that the death penalty is constitutional." In a career-defining dissent, Justice Breyer showed just how unsettled the American death penalty remains.

    The precise legal question in Glossip was whether states could use midazolam as the anesthetic in a three-drug legal-injection cocktail. For years, states used sodium thiopental, until suppliers stopped selling it for use in executions. Many states turned to pentobarbital, which also became difficult to obtain. Oklahoma turned to midazolam, considered more of an anti-anxiety medication than an anesthetic. After several "botched" executions, the Supreme Court agreed to hear whether improvements to Oklahoma's cocktail -- including a 400 percent increase the midazolam dosage -- satisfied the Eighth Amendment. Holding that it did, the Court seemed to announce a rule that an execution could not be Cruel and Unusual under the Eighth Amendment unless there is a "known and available alternative method of execution that entails a lesser risk of pain." Justice Sotomayor dissented, calling this a "surreal" endorsement of inhumane "human experimentation."

    Justice Breyer did more. Joined by Justice Ginsburg, he wrote a dissent arguing that the death penalty is flat out unconstitutional, and he characteristically loaded his opinion with empirical data. In doing so, Breyer and Ginsburg joined the ranks of predecessors such as John Paul Stevens and Harry Blackmun who, in their later years on the Court, declared they no longer believed that there exists a constitutional way to administer capital sentences. In 1994, an 85 year-old Blackmun penned a memorable single-Justice dissent swearing off his participation in capital process: "From this day forward, I no longer shall tinker with the machinery of death." For Justices Breyer and Ginsburg, the death penalty cannot escape a dilemma's horns -- the procedural protections necessary to make the penalty reliable mean that the process takes so long that it no longer serves its retributive or deterrent purposes.

  • May 26, 2015
    Guest Post

    by M. Gregg Bloche, M.D., professor of law at Georgetown and author of The Hippocratic Myth.

    Credit the State of Utah for bringing back the firing squad.

    Two months ago, the state made the rifleman its method of killing when lethal drugs aren’t available. Health professionals and drug companies are saying “no” to participation in executions, and this spring, the trade association representing America’s pharmacists said it would “discourage” them from purveying their own lethal drug mixes on death row.

    So-called “compounding pharmacies” became death-row suppliers of last resort after Big Pharma got out of the execution business.  Not anymore, unless some pharmacists go rogue by defying their trade body.  Executioners around the country are now scrambling to secure drugs that kill, and they’re experimenting with unproven alternatives to the classic, three-drug fatal sequence.

    Death by chemistry emerged almost 40 years ago as a response to our contradictory expectations of capital punishment. As crime rates soared in the late seventies and early eighties, so did our retributive ire. America re-embraced the death penalty, ending a ten-year moratorium, when a Utah firing squad shot Gary Gilmore in January 1977.

    But we wanted to make the killing “humane.” Less than four months later, Oklahoma enacted the first lethal injection law, based on a protocol developed by a doctor. In the 1980s, as executions again became commonplace, the Oklahoma protocol became the prevailing method.

    Medical associations took stands against their members’ participation, but states readily found health professionals willing to flout Hippocratic prohibitions. Some corrections departments kept doctors’ names secret, paid them in cash, and otherwise hid their involvement. State-sanctioned medical killing on the down-low thus became routine.