December 8, 2015 - Today marks the start of a "Jubilee Year of Mercy," declared by Pope Francis to be a time when people should consider "mercy over judgment." There are interesting overlaps between larger conceptions of mercy and forgiveness and the significance of the clemency function in death penalty cases. Read more about capital clemency and the Jubilee Year here.
December 1, 2015 - On Wednesday, November 18, the state of Texas executed Raphael Holiday amid concerns regarding his opportunity to seek clemency. In particular, Holiday's attorneys gained notoriety when they publicly declared they would not seek clemency on their client's behalf, despite his wishes that they do so. For more information, continue reading here.
November 25, 2015 - In a decision released on Tuesday, the Supreme Court of Missouri overturned the first-degree murder conviction of Reginald Clemens. The decision came after a Special Master appointed by the Court found that prosecutors wrongly suppressed evidence related to physical injuries sustained following Mr. Clemons’s interrogation and subsequent confession, which was a critical part of the state’s case to convict him of the murders of the Kerry sisters in 1991. The court stated that “[s]ubstantial evidence supports the master’s findings that the state deliberately violated Brady and that, in the absence of the undisclosed material evidence, the jury’s verdicts are not worthy of confidence.” The state now has sixty days to retry the case against Mr. Clemens or it will be dismissed. This case had been pending before the Missouri Supreme Court for several years. In fact, in 2013, members of the ABA Missouri Death Penalty Assessment Team signed on to an amicus curiae brief filed in the in support of Mr. Clemons. In that amicuc brief, the expert signatories discussed the significance of withholding Bradymaterial in criminal cases, as well as arguing that Mr. Clemons’s death sentence was not proportional in light of the new evidence that weakened the case against Mr. Clemons. Their brief can be found here.
ABA Issues Statement on Oklahoma’s Death Penalty Drug Error
October 9, 2015 – ABA President Paulette Brown issued the following statement regarding the recent news that Oklahoma used potassium acetate, rather than potassium chloride, one of the drugs that is allowed under the execution protocol, when it executed Charles Warner, who said “my body is on fire” during the execution process. Oklahoma, like several other states in recent years, passed legislation in response to changes in drug availability to make secret the identities of individuals or businesses that supply drugs for use in executions.
“The State of Oklahoma acknowledged Thursday that it used a drug that was not authorized by its execution protocol when it executed Charles Warner in January. Although the state’s investigation is ongoing, this situation highlights the importance of transparency in the administration of the death penalty.
Although the American Bar Association does not take a position for or against capital punishment, the ABA adopted a policy in February 2015 urging jurisdictions that use capital punishment to disclose “to the public, to condemned prisoners facing execution and to courts all relevant information regarding execution procedures, including … details about any drugs to be used.”
If executions are to be conducted in accordance with the principles of the U.S. Constitution, the ABA believes that governments must provide advance information about the drugs they plan to use in an execution. Transparency is needed if society is to have confidence in the fairness of the process.”
ABA Urges VA Governor to Stay Upcoming Execution
October 5, 2015 – The Commonwealth of Virginia executed Alfredo Prieto Thursday night, October 1, while appeals in his case were still pending. According to reports, Mr. Prieto was led into the execution chamber and strapped to the gurney at 8:53pm. Troublingly, the 4th Circuit Court of Appeals did not issue the order denying a stay in his case until shortly after 9:00pm. Mr. Prieto was declared dead approximately seventeen minutes later, before his attorneys had an opportunity to appeal the 4th Circuit denial to the Supreme Court. The fact that Virginia executed Mr. Prieto before all his appeals were exhausted is not the only aspect of this case that raises questions about the adequacy of process he received. Mr. Prieto’s execution occurred despite significant evidence indicating that Mr. Prieto was intellectually disabled. Last week, the ABA wrote a letter to Virginia Governor Terry McAuliffe, asking him to stay the execution in light of these serious concerns.
September 30, 2015 - Virginia is poised to execute Alfredo Prieto tomorrow, October 1, before his evidence of intellectual disability has been given the full evaluation that the U.S. Constitution requires under Hall v. Florida, decided last year. The ABA filed an amicus brief in Hall and strongly supports its rationale that intellectual disability cannot be accurately assessed under a statute that employs a bright-line cut-off for I.Q. scores. On account of these grave concerns, last week the ABA asked Virginia Governor Terry McAuliffe to stay Mr. Prieto’s execution until a Hall-compliant review could be completed, since there is substantial evidence exists to suggest that he is intellectually disabled. For example, Mr. Prieto has received I.Q. test scores of 66, 64, and 73, has been diagnosed as having significant limitations in executive functioning, and has manifested a wide array of adaptive deficits, including in his ability to interact socially, care for himself appropriately, and separate truth from fiction. At the time of Mr. Prieto’s conviction and sentencing, however, Virginia employed the sort of bright-line scheme for determining intellectual disability that was subsequently found to be unconstitutional in Hall.
Read our letter here.
Project Hosted Event on Execution Transparency
July 29, 2015 – Along with the Southern Center for Human Rights, the Project hosted “A Cloud of Uncertainty: The Growing Lack of Transparency in Lethal Injections and Executions” a panel discussion and reception in Atlanta, Georgia. The panel talked about the rise of secrecy laws and why such secrecy is unprecedented and problematic. The discussion was moderated by Rose Scott, a journalist with the Atlanta NPR affiliate, and featured Hollie Manheimer, Executive Director at the Georgia First Amendment Foundation; Chris McDaniel, Death Penalty Reporter at BuzzFeed News; Jennifer Moreno, Death Penalty Litigator with the Berkeley Law Death Penalty Clinic; and Sachin Varghese, Associate at Bondurant, Mixson & Elmore.
See a video of the event on the right side of this page.
June 4, 2015 - The American Bar Association filed an amicus curiae brief in Hurst v. Florida, a death penalty case in which the Supreme Court granted certiorari to decide whether Florida’s unique capital sentencing procedure, which does not require the jury to make factual findings on specific aggravating factors or to be unanimous, is unconstitutional. The ABA’s arguments in support of the petitioner, Timothy Lee Hurst, rely on research provided by the Death Penalty Due Process Review Project’s Florida Assessment and the Project’s sponsored Resolution 108A, which passed at February’s Midyear Meeting in Houston.
New ABA Policies Concerning the Death Penalty Pass
February 9, 2015 - The ABA House of Delegates unanimously passed two new important – and timely – resolutions sponsored by the Death Penalty Due Process Review Project. The first, Resolution 108A, addresses the particular significance of the sentencing determination in a death penalty case and calls upon all jurisdictions with capital punishment to require the jury to unanimously recommend or vote for a death sentence before such punishment can be imposed. Additionally, a capital sentencing jury should unanimously agree on the existence of any fact whose existence is a prerequisite for eligibility for death, and unanimously agree on the specific aggravating factors that have each been proven beyond a reasonable doubt.
Resolution 108B seeks to ensure that all death penalty jurisdictions’ lethal injection procedures fully comport with the ABA’s longstanding position that the death penalty be administered only when performed in accordance with constitutional principles. Because proper evaluations of the death penalty can only occur when execution processes are transparent, the Resolution calls on jurisdictions that use the death penalty to make detailed information available to the public about their execution procedures and protocols, including information about the lethal injection drugs to be used; to protect media and witness rights to view the entirety of the execution process; to conduct and make publicly available contemporaneous records of the minute-to-minute events of executions; and to provide for independent investigations of all flawed or troubled executions.
The Project would like to thank its Steering Committee as well as members and delegates of the resolutions’ cosponsors, the Section of Individual Rights and Responsibilities and the Death Penalty Representation Project, for their invaluable help in drafting and advancing these new policies.
Click here for ABA Journal’s initial coverage of the resolutions’ passage.
Project Steering Committee member, Ronald J. Tabak, authored the comprehensive and up-to-date Chapter on the Death Penalty in the ABA’s The State of Criminal Justice 2015. You can find his death penalty chapter online here, and can buy the complete book here if you want a thorough report on the major issues, trends, and significant changes in the U.S. criminal justice system. The 2015 volume contains 19 chapters focusing on specific aspects of the criminal justice field, with summaries of all of the adopted official ABA policies passed in 2014-2015 that address criminal justice issues, including the Project’s sponsored policies on the importance of transparency in execution protocols and unanimous capital sentencing juries.
Panetti Execution in Texas Stayed, ABA Supports Competency Review
November 6, 2014 - In response to the announcement of the impending execution of Scott Panetti, a severely mentally ill man in Texas, the Project worked with ABA President William Hubbard to submit a letter to Texas Governor Rick Perry urging him to stay Mr. Panetti’s execution and allow for a complete and up-to-date consideration of his mental health status. Our letter, submitted as part of Mr. Panetti’s clemency petition, cited ABA’s established policies which support “an evaluation of the convict's current mental condition” when there is a serious risk that the condemned prisoner “has a mental disorder or disability that significantly impairs his or her capacity to understand the nature and purpose of the punishment, or to appreciate the reason for its imposition in the prisoner's own case.” The ABA, which served as amicus curiae in Mr. Panetti’s case before the U.S. Supreme Court in 2007, believes there is ample information in Mr. Panetti’s case records to cause the State of Texas serious concerns about proceeding with this execution. Hopefully the letter and accompanying media statements will lead to thoughtful consideration of the effects of Panetti’s severe mental illness in this punishment and the possible injustice that may occur should it result.
UPDATE: On December 3, 2014, the date of Mr. Panetti’s scheduled execution, the U.S. Court of Appeals for the 5th Circuit issued a last-minute stay of his execution to “allow [the court] to fully consider the late arriving and complex legal questions at issue.”
July 2014 - Dr. Marla Sandys, Associate Professor of Criminal Justice at Indiana University, recently completed, “Misunderstanding of Capital Instructions: Clarification is Possible,” an analysis of jurors’ understanding of the often-complicated and confusing jury instructions that are provided to them as they deliberate on the appropriate sentence in death penalty cases. Professor Sandys summarizes the major national research on juror understanding of death penalty sentencing instructions, as well as details the Kentucky-specific findings of the Capital Jury Project’s research. Professor Sandys’ conclusions comport with the seven (7) recommendations related to jury instructions found in our 2011 Kentucky Death Penalty Assessment Report, including the state-based Assessment Team’s charge that the Commonwealth of Kentucky “should work with attorneys, judges, linguists, social scientists, psychologists and jurors to evaluate the extent to which jurors understand instructions, revise the instructions as necessary to ensure that jurors understand applicable law, and monitor the extent to which jurors understand revised instructions to permit further revision as necessary.” Her article can be found here.
July 21, 2014 - The Project’s Texas Death Penalty Assessment report was just cited in an amicus curiae brief submitted to the U.S. Supreme Court on behalf of eight retired federal and state court judges, including a member of the Project’s Steering Committee, the Honorable U.W. Clemon. The brief was filed in a case before the Court regarding an inmate who was sentenced to death in Texas and has faced legal barriers in trying to prove the evidence surrounding his ineffective assistance of counsel claim. Their brief notes the Assessment team’s specific finding that ineffective assistance claims “often involve complex factual considerations” for which there is a great “benefit from an evidentiary hearing, in which the court can assess the credibility of witnesses during live testimony and cross-examination” and encourages Texas – and other states that utilize the death penalty – to provide meaningful review of such complex claims raised on appeal or in post-conviction petitions.
May 30, 2014 - Following the April 2014 release of the Ohio Joint Task Force review of the state’s death penalty system, ABA President James R. Silkenat issued a statement supporting the Task Force’s work and findings, which utilized the ABA Death Penalty Due Process Review Project’s 2007 Ohio Death Penalty Assessment Report. The Ohio assessment is one of 12 that the Project has completed since its inception in 2001 and it made detailed findings in 13 different areas related to the administration of the death penalty in Ohio. Please find the Project’s comprehensive state assessment reports here.
May 15, 2014 - Following the botched execution of Clayton Lockett in Oklahoma last month, President Obama called for the Department of Justice to analyze the state of capital punishment in the United States, stating that “[i]n the application of the death penalty in this country, we have seen significant problems - racial bias, uneven application of the death penalty, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence. And all these I think do raise significant questions about how the death penalty is being applied. And this situation in Oklahoma I think just highlights some of the significant problems there.”
In response to President Obama’s call for review of the capital punishments systems across the country, ABA President James Silkenat wrote to President Obama and Attorney General Eric Holder on May 15, 2014 to inform them about the relevant work of the ABA’s Death Penalty Due Process Review Project’s and share our comprehensive state assessment reports. Hopefully these important Reports, which seek to objectively evaluate the administration of the death penalty in each state based upon uniform ABA benchmarks on varied aspects of capital punishment processes, will help inform the Department of Justice’s analysis and will lead to thoughtful consideration by policymakers of the state of our criminal justice system and important reforms that are needed across the country to ensure fairness and accuracy in the administration of the death penalty.
May 2014 - The May issue of St. Louis Magazine included a story called “How We Kill: The State of the Death Penalty,” that discussed Missouri’s historical and current death penalty policies and practices. The article cites to the Project’s 2012 Assessment report on Missouri’s capital punishment system, noting that the expert panel made recommendations in “several areas in which Missouri’s criminal procedures were deficient, leaving the state open to the possibility of executing an innocent person.”
May 8, 2014 - The San Antonio Express-News’s Editorial Board called for a moratorium on executions in Texas. In making that recommendation, the Board cites at length the findings of the Project’s 2013 Assessment report, which made detailed recommendations to improve the accuracy and fairness of Texas’s capital punishment system. The article can be found here.
April 29, 2014 - The Project worked with ABA President Silkenat to issue a statement on April 29, the day after a botched execution in Oklahoma, noting that the events were inconsistent with the U.S. Constitution’s requirement for meaningful due process and its prohibition on cruel and unusual punishment. The statement further called for a robust, independent investigation, which the State of Oklahoma has since agreed to do.
New Project Director Hired
April 28, 2014 - Misty Thomas has joined the Death Penalty Due Process Review Project as its new Director. Misty comes to the ABA with a diverse background in criminal defense, civil legal services, and public policy advocacy. Most recently, Misty was at the Washington Legal Clinic for the Homeless where she was the senior Affordable Housing Initiative attorney representing homeless individuals and low-income tenants, conducting public education about issues surrounding poverty and discrimination, and advocating to various governmental bodies for more humane and effective laws and regulations. Misty also worked at Howrey LLP as the firm’s Pro Bono Fellow, representing indigent clients in a wide range of criminal and civil legal matters and mentoring other lawyers at the firm in their pro bono practices. During law school, she worked for the Public Defender Service of the District of Columbia and the Southern Center for Human Rights, which represents individuals facing the death penalty and advocates for criminal justice reform in the South. For several years prior to law school, Misty also served as the inaugural Executive Director of the Mid-Atlantic Innocence Project, which works to correct and prevent the wrongful conviction of innocent people in D.C., Maryland, and Virginia.
November 12, 2013 – The Project hosted a National Symposium on the Modern Death Penalty in America attended by over 150 lawyers and advocates in Atlanta, Georgia at The Carter Center. Former President Jimmy Carter opened the symposium, which was followed by a series of special issue panels discussing the ABA’s findings in various jurisdictions, recommendations for reform, and implications for the future of the death penalty in America. The symposium’s featured speakers and panelists include ABA President Jim Silkenat, President of the Southern Center for Human Rights Stephen B. Bright, the Honorable Boyce Martin, recently retired from the 6th Circuit, former Ohio Attorney General Jim Petro and former Virginia Attorney General Mark Earley, journalists Ed Pilkington of the UK’s Guardian newspaper and Brandi Grissom of the Texas Tribune, and many others. The Symposium received international, national, and state-wide media attention. The Project also released its "Key Findings on the State Assessments on the Death Penalty," revealing universal conclusions about the death penalty uncovered in the project’s nearly decade-long examination of various capital punishment systems.
Texas State Assessment
September 18, 2013 - The Texas Capital Punishment Assessment Team, organized by the American Bar Association (ABA), issued a comprehensive report with recommendations to help ensure fairness and accuracy in the state’s death penalty system.
Virginia State Assessment
September 5, 2013 - The Virginia Death Penalty Assessment Team issued its report detailing findings and recommendations on the administration of capital punishment in the Commonwealth. This report is the product of a two-year effort by the Virginia-based Assessment Team.
April 19, 2012 - The United States Court of Appeals for the Eleventh Circuit issued an opinion in Hutchinson v. Florida—a death penalty case from Florida—rejecting the inmate’s claim that he was entitled to “equitable tolling” of the statute of limitations in his case due to his attorney’s miscalculation of the time available for filing an appeal. The attorney’s miscalculation led to a late filing of a state claim for post-conviction relief. The Eleventh Circuit held that the attorney’s mistake, and the death row inmate’s lack of diligence in trying to pursue relief in light of the attorney’s mistake, forever barred the inmate from having a state or federal court review his constitutional claims of error on the merits. In a concurrence, Judge Barkett noted the states’ failure to assign competent counsel in death penalty collateral appeals as contributing to the prevalence of such mistakes, citing the Death Penalty Due Process Review Project’s assessment reports in Alabama, Florida, and Georgia. See Hutchinson v. Florida, 2012 WL 1345599, *6 (11th Cir. 2012).
U.S. Supreme Court Cites Project's Work
January 18, 2012 - In Maples v. Thomas, the U.S. Supreme Court rules that death row inmate’s abandonment by his attorneys is cause to excuse a procedural default. The Court, citing the Project’s Alabama Assessment, describes inadequacies of Alabama’s provision of counsel in death penalty cases. Read the full opinion here.