March 01, 2013

ABA President Releases Statements Regarding the Executions of John Ferguson, Warren Hill, and Duane Buck

ABA President Laurel Bellows

The ABA has recently issued statements regarding the scheduled executions of three death-sentenced prisoners: John Ferguson, Warren Hill, and Duane Buck. ABA President Laurel Bellows issued statements in support of stays of executions filed by Mr. Ferguson and Mr. Hill, both of whom were scheduled for execution on the day that the statements were released, and in support of a new sentencing hearing for Mr. Buck.


John Ferguson

John Ferguson is a Florida death row prisoner with a 40-year history of severe mental illness. Mr. Ferguson has been diagnosed with paranoid schizophrenia and suffers from auditory hallucinations and delusions, including that he is a "prince of God" and will be physically resurrected and assume a seat at the right hand of God after his execution. The State of Florida argued that Mr. Ferguson was competent to be executed based on a 90-minute evaluation by State experts. These experts concluded that Mr. Ferguson is "malingering," or feigning his symptoms of mental illness, even though they admittedly did not review his full 40-year history of psychiatric treatment or conduct an in-depth evaluation. The court rejected this conclusion and found Mr. Ferguson's schizophrenia to be genuine but ruled that he was competent to be executed because his delusions were nothing more than "fairly normal Christian belief[s]."

On October 20, 2012, a federal district court stayed Mr. Ferguson's execution and scheduled an evidentiary hearing for October 26, 2012, to afford "full, reflective consideration" of Mr. Ferguson's constitutional claims, including his claim that he was not mentally competent to be executed. The U.S. Court of Appeals for the Eleventh Circuit, however, determined that the district court abused its discretion when it issued Mr. Ferguson's stay and vacated the stay on October 23, 2013, just hours before Mr. Ferguson was scheduled to be executed.

President Bellows first issued a statement regarding Mr. Ferguson's execution, urging for a stay of the execution until the federal courts have an opportunity to fully review his insanity claims. A few hours later, the ABA took the unusual step of filing an emergency amicus brief with the U.S. Supreme Court in support of Mr. Ferguson's application for a stay of execution.

In its amicus brief, the ABA stated that Mr. Ferguson's execution should be stayed under U.S. Supreme Court precedent and the Eighth Amendment guarantees against cruel and unusual punishment. The ABA brief cited the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman in support of the argument that no person should be executed if he lacks a "rational understanding" of the reasons for and consequences of his punishment. The ABA also noted that its policies concerning mental disability and the death penalty reflect this standard.

In the evening of October 23, 2012, both the Supreme Court and federal district court denied Mr. Ferguson's requests for a stay of execution. The district court also denied Mr. Ferguson's pending post-conviction petition but issued a Certificate of Appealability along with that decision. Because the district court granted the Certificate of Appealability, procedural rules required the Eleventh Circuit to issue a stay to permit time for Mr. Ferguson to pursue the appeal. The Supreme Court subsequently upheld the stay, and the Eleventh Circuit asked for briefing on two issues: 1) whether the Florida Supreme Court correctly applied U.S. Supreme Court precedent on competence for execution; and 2) whether the Florida Supreme Court made an unreasonable determination in light of evidence that Mr. Ferguson has a history of paranoid schizophrenia and "has a fixed grandiose delusion that he is the 'prince of God.'" Both sides have briefed their arguments before the Eleventh Circuit, and oral arguments were held on November 29, 2012. A decision from the Eleventh Circuit is expected soon.

Warren Hill

On February 19, 2013, President Bellows issued a statement urging the Georgia Supreme Court or the U.S. Supreme Court to stay the execution of Warren Hill—a death row prisoner diagnosed with mental retardation—and asked the Georgia Board of Pardons and Parole to grant Mr. Hill’s request for clemency.

In 2002, the U.S. Supreme Court held in Atkins v. Virginia that defendants with mental retardation are ineligible for the death penalty pursuant to the Eighth Amendment prohibition on cruel and unusual punishment. The Court, however, left it up to the states to determine how to enforce this constitutional restriction. Georgia, which had enacted legislation prior to the Atkins decision, requires death-sentenced persons to prove their mental retardation "beyond a reasonable doubt." Georgia is the only state with such a stringent standard of proof for Atkins claims.

In his state court proceedings, Mr. Hill presented four experts who testified that he was mentally retarded, and the State presented three experts who testified that he was not. The state court concluded that, while Mr. Hill was mentally retarded by a preponderance of the evidence, he failed to demonstrate that he was mentally retarded beyond a reasonable doubt. As a consequence, Mr. Hill was scheduled to be executed.

In his application to the Eleventh Circuit requesting permission to file a second petition for writ of habeas corpus, Mr. Hill submitted affidavits from the State's three experts, each of whom revised his prior opinion to conclude that Mr. Hill is mentally retarded. In her February 19, 2013 statement, President Bellows reiterated that while the ABA takes no position on the death penalty itself, it has opposed the execution of offenders with mental retardation for more than two decades.

On February 19, 2013, the Eleventh Circuit granted a stay of execution to consider whether Mr. Hill can litigate a second federal habeas action on his claim of mental retardation based on the experts' revised conclusions that he is mentally retarded. The Georgia Supreme Court granted a separate stay based on a lethal injection challenge.

Duane Buck

On March 20, 2013, President Bellows issued a statement expressing concern about the case of Duane Buck, a death-sentenced prisoner in Texas whose sentence was influenced by race-based testimony. The statement urged additional judicial review and a new sentencing hearing free of racial prejudice.

During Mr. Buck's trial in 1997, the prosecution elicited testimony from an expert witness who said that Mr. Buck poses an increased future danger to society because he is black. In Texas, a defendant's "future dangerousness" must be considered during the penalty phase of a case, and this testimony contributed to the jury's decision to sentence Mr. Buck to death. In 2000, then-Texas Attorney General John Cornyn made public statements in support of a new sentencing hearing for Mr. Buck and five other defendants. He said, "[I]t is inappropriate to allow race to be considered as a factor in our criminal justice system." The same race-based "dangerousness" testimony was introduced by the same "expert" witness in five other capital cases in Texas, and in each of those cases appellate courts have granted new sentencing hearings. Mr. Buck has yet to receive the same opportunity.

In her March 20, 2013 statement, President Bellows stated, "[t]he American Bar Association abhors racial prejudice and discrimination of any kind, and it should go without saying that no one should be executed when there is a substantial issue whether race-based testimony infected the fairness of legal proceedings." On the same day, advocates for Mr. Buck released a letter bearing the signatures of more than 100 elected officials, civil rights and faith leaders, and legal professionals that also urged a new, fair sentencing hearing "free from racial bias."

Mr. Buck's appeal seeking a new sentencing hearing is currently pending with the Texas Court of Criminal Appeals.