Bill Redick is Director of The Justice Project's Tennessee Campaign.
September 30, 2006 -- Anglo-American law and common sense have recognized for centuries that mentally impaired criminal offenders are less culpable than those oriented in reality and otherwise in control of their mental faculties. Since the mentally impaired are less culpable, they are not appropriate candidates for the death penalty, reserved under the law for the worst offenders.
Tennessee apparently has a special penchant, however, for reserving the death penalty for the mentally ill, rather than excluding them from it.
The U.S. Supreme Court has categorically prohibited the execution of the mentally retarded due to their organically limited mentality. The high court also has excluded juveniles from the death penalty due to their relatively undeveloped mentality. The court has specifically recognized that defendants with "emotional and mental problems" may be considered "less culpable" and that mental impairment is a factor that mitigates against, not in favor of, the imposition of a sentence of death.
A Gallup Poll taken in 2002 found that 75% of those surveyed opposed the execution of the mentally ill, while only 19% supported it. In August 2001, the American Psychological Association called for a moratorium on the death penalty until it could be shown that mentally ill and retarded inmates would not be executed. In December 2004, the American Psychiatric Association passed a resolution calling for an end to the execution of inmates who are significantly impaired mentally. In August 2006, the American Bar Association passed essentially the same resolution. The National Alliance for the Mentally Ill and The National Mental Health Association have passed similar resolutions.
Robert Coe and Sedley Alley, the only two inmates Tennessee has executed in the past 46 years, were both seriously mentally ill. April 19, 2000, Tennessee executed Coe, who suffered delusions and hallucinations. He had numerous mental disorders including brain damage, schizophrenia, a dissociative identity disorder, an anxiety disorder and other disorders.
May 17, 2006, Tennessee executed Sedley Alley. He suffered a combination of brain damage, evolving from childhood epilepsy, and dissociative and post-traumatic stress disorders, evolving from traumatic events in his childhood, the combination of which caused gaps in his awareness and limited his ability to control his behavior.
Had it not been for a late stay of execution by the federal appeals court Daryl Holton would have been executed this past month. Holton suffers complex post-traumatic stress disorder and major depression, which has caused mental health professionals to conclude that he is unable to advise and consult rationally with his attorneys. The federal courts entered the stay after the state courts had refused to give Holton a hearing on his competency.
Greg Thompson and Paul Reid are approaching execution dates and are both seriously mentally ill. Litigation is pending in federal court to determine their competency after the state courts refused to hold hearings.
Greg Thompson is floridly psychotic, suffering hallucinations and delusions that, for example, he "built the space shuttle," "the earth has been conquered, and I'm the only woman left," and his lawyer is the Grand Master of the Ku Klux Klan. He expects to be "discharged" from death row to go to "live in Hawaii." He also suffers organic brain damage as the result of numerous head injuries.
Paul Reid suffers acute temporal lobe brain dysfunction, which has produced a chronic, schizophrenic-like psychosis. He believes he is under the control of a government-directed surveillance and influence that guides his daily activities and decisions, including those regarding his legal options. He believes this force also controls his lawyers and the courts.
Particularly unseemly is the fact that the state attorney general contends in the state courts, which refused to give Reid a hearing on his competency, that he is competent and should be executed but — in the face of an impending competency hearing subsequently ordered by the federal courts — have conceded that he is incompetent.
Many inmates on Tennessee's death row are seriously mentally ill. The law requires that the death penalty be reserved for the worst offenders, but contrary to the legal, professional and public mandate, the most impaired offenders, not the worst offenders, are the ones who have been and apparently will be executed.
Post-conviction DNA testing can not only free innocent people who have been wrongly convicted, it can also shine a light on the serious errors in our criminal justice system. Two recent exonerations in New York -- made possible by post-conviction DNA testing -- illustrate the real problem of false confessions and mistaken eyewitness identifications.
Jeffrey Mark Deskovic was released from a New York prison on September 20, 2006 after spending 16 years behind bars for a crime he did not commit. Mr. Deskovic was wrongly convicted of raping, beating, and strangling a classmate in 1990 when he was only 16 years old. Mr. Deskovic was initially considered a suspect because of his interest in the details of the crime and his eagerness to help with the police investigation. After seven and a half hours of police questioning without food, his parents or a lawyer, Mr. Deskovic falsely confessed to the crime, telling interrogators what he thought they wanted to hear. Even though evidence presented at trial showed that DNA found at the crime scene was not Mr. Deskovic's, the jury convicted him based on the false confession. He then served 16 years in prison before being exonerated when the DNA evidence that excluded him as the perpetrator was linked to convicted murderer Steven Cunningham. In a jailhouse confession on October 5, 2006, Mr. Cunningham admitted to the killing.
Mr. Deskovic's case highlights the not so rare incidences of intelligent, mentally sound, innocent persons confessing to crimes they didn't commit. Powerful factors, such as law enforcement's use of coercion tactics, ignorance of the law, and mental and physical exhaustion can lead to false confessions. Electronic recording of custodial interrogations makes it much more likely that unreliable statements obtained through abuse or coercion will not be used to obtain a wrongful conviction.
In another New York case, Scott Fappiano was wrongly convicted of raping a policeman's wife in her home and sentenced to 20-50 years in prison in 1985. The victim picked him out of a mug shot book and later a lineup despite the fact that he was five inches shorter than the attacker she described. Furthermore, blood-typing tests used at the time on the cigarettes and stained clothing at the crime scene ruled out Mr. Fappiano as a suspect. The Innocence Project began investigating Mr. Fappiano's case nearly three years ago but met with difficulty when the evidence from the case could not be found in the New York Police Department's storage facility. Fortunately, an independent testing lab in Connecticut found two vials of DNA from the crime scene while doing routine inventory. This evidence excluded Mr. Fappiano as the perpetrator, and he was released from prison on October 6, 2006 after spending 21 years behind bars for a crime he did not commit.
Numerous DNA exonerations have shown the fallibility of eyewitness identifications and testimony. Mr. Fappiano's case serves as yet another example of why changes are needed in many eyewitness identification procedures. A number of reforms can improve the accuracy of eyewitness identifications, including the use of double-blind sequential lineups and the careful documentation of witness certainty at the time the identification is made.
On Wednesday, September 27, the City Council in Houston approved an additional $1.5 million for the independent investigation of the city's police crime lab. Due to a lack of funds, the probe into Houston's Crime Lab had been on hold since June. The lab was shut down in December 2002 when serious, systemic errors in forensic evidence analyses were uncovered and was not reopened until July 3, 2006 (see previous updates). The Houston Crime Lab is currently working with a temporary one-year accreditation from The American Society of Crime Lab Directors.
Since March 2005, an independent investigation led by Michael Bromwich has reviewed approximately 2,300 cases, going as far back as 1980. Of these cases, 93 have been identified by the investigators as containing "major issues," inviting more speculation about the lab's accuracy. The investigation also uncovered a "disturbing and pervasive pattern" in which analysts did not release findings that could have exonerated defendants, including three men now awaiting execution.
The requests for extra funds came after scientists expanded the investigation to further examine the problems in cases that involved serology tests (blood-typing analysis). Council members' requests for investigators to propose ways to avoid future problems also increased the cost and project time frame. The total cost of the investigation has now reached $5.3 million.
In 2005, the Texas Legislature took substantial steps forward in the area of forensic laboratory reform by creating independent, expert oversight for Texas crime labs in the form of the new Texas Forensic Science Commission. Appointments to the commission were finalized in early 2006, and the commission is empowered to review and investigate problems and make recommendations for corrective action; however, the commission has not yet been funded by the legislature, and therefore, has not started work. The Justice Project supports full funding of this important commission and will be working in Texas to make it a reality in the coming legislative session.
Alabama needs to get rid of the death penalty and restore voting rights to convicted felons who have done their time, the head of the state's NAACP said Saturday.
Edward Vaughn of Dothan highlighted the two criminal justice issues in an interview at the Alabama NAACP's 54th annual meeting in Montgomery, attended by more than 120 delegates from across the state.
"Alabama should join the civilized world," he said.
Vaughn described elimination of capital punishment and restoration of felon voting rights as key agenda items for his organization in the coming year.
"Michigan doesn't have the death penalty," said Vaughn, who lived in Detroit and served four terms in the Michigan Legislature before returning to his hometown six years ago.
"It never had one, even before it became a state," he said. "It has worked well there."
Like Vaughn, Esther Brown wants Alabama to abolish the death penalty. The first step toward that end, she said, should be a cessation of executions.
"We want a moratorium," said Brown, who lives in the Chambers County community of Lanett. "There should be a time out for an independent study to determine the fairness of the application of the death penalty."
The state's decision to use lethal injection instead of the electric chair for executions has not impressed her organization, Brown said, "because we don't know if that is any better."
Brown said a large percentage of inmates on Alabama's death row are there because their victims were white "even though more African-Americans are murdered in Alabama."
"We're one of the few states with jury overrides," she said, referring to a law that allows circuit judges to set aside jury recommendations for life in prison without parole and then impose the death penalty. "We also execute the (mentally ill)."
On restoring voting rights to convicted felons, Vaughn said it is the right thing to do for those who have served their prison sentences.
"If someone has paid their debt to society, it seems to me that they should be allowed to come back into society," he said.
Those in control of Alabama's voting procedures, Vaughn said, know that many convicted felons are black and they don't want them to swell the ranks of voters.
"I think it's a deliberate attempt to control a certain segment of our population," he said.
One of the most important factors in determining whether a defendant will receive the death penalty is the quality of his or her representation. Most defendants charged with capital crimes cannot afford their own attorneys. And all too often, appointed attorneys are so drastically overworked and underpaid that they cannot provide competent and diligent representation, especially given the special nature of death penalty cases. Instances of inadequate legal representation range from attorneys lacking experience or resources to attorneys under the influence of alcohol or drugs in the courtroom. In some cases, appointed attorneys have actually slept through parts of the trial, or come virtually unprepared for the sentencing phase.
Defense attorneys lacking resources and experience often fail to investigate cases thoroughly, fail to present compelling or mitigating evidence, and fail to call witnesses that would aid in the defense. In addition, monumental caseloads, caps on fees for public defenders, and a severe lack of resources for investigation and expert assistance create a situation in which appointed attorneys are simply unable to fulfill their obligations to their clients and the court.
The right to an attorney is the most basic tenet of the American judicial system -- centered on the ideal that every man, rich or poor, stands equal before the law. In death penalty cases, it is absolutely essential that the attorney be experienced in capital cases, be adequately compensated, and have access to the resources needed to provide competent and diligent representation.
In 2003, the American Bar Association developed specific guidelines for the appointment and performance of lawyers in death penalty cases, which the US Supreme Court has cited as an appropriate performance standard for defense counsel in capital cases. These guidelines, termed the ABA Guidelines for the Appointment and Performance of Defense Counsel in Capital Cases (pdf), are essentially the gold standard for implementing effective systems of capital representation. No state has fully implemented the guidelines to date.
Louisiana is perhaps the best example of why standards are necessary to protect those most in need of the system's resources, and those least able to advocate for themselves.
As reported in our April newsletter, the devastation brought on by Hurricane Katrina highlighted just how crippled the system for providing adequate counsel to indigent defendants in the state remains -- both before Katrina, and even more so today. The extent of the crisis became even more apparent this past week, when six public defenders in the Orleans Indigent Defender Program quit following a decision by the program's trial chief to require public defenders to work full time and relinquish their potentially higher paying private practices on the side. In an area where nearly 80 percent of criminal defendants depend on public defenders, many poor people accused of crimes, some of whom could face the death penalty, continue to be left without lawyers to represent them as the number of public defenders dwindles.
Last March, as a result of an investigation into the New Orleans indigent defense crisis, the Southern Center for Human Rights (SCHR) released a report exposing the severe deficiencies in the system. In a corresponding press release, SCHR noted, "More than six months after Katrina, a majority of those men and women remain behind bars, where they have languished on average for over a year without any communication with a defense attorney. There is an urgent need to immediately staff and mobilize an indigent defense system that can effectively and ethically represent the thousands of individuals who are currently facing their criminal charges without assistance of counsel."
Even before Katrina, the state's indigent defense system was abysmal -- people languished in prison for months without seeing a lawyer, and the level of representation eventually provided was often substandard. The Orleans Indigent Defender Program was also the subject of many critiques prior to Katrina -- reports on the program found that lawyers often did not investigate their cases or interview their clients. Moreover, systemic flaws in the system extend across the state –- not just New Orleans –- leaving poor defendants without the competent and diligent representation guaranteed by the constitution.
Due to the switch to public defenders who work full-time at higher salaries, the revamped Orleans Indigent Defender Program will hire and train new lawyers. There are currently 26 lawyers on staff, with a total of 60 cited as the number necessary to keep up with recent caseload standards. The office is currently not funded at a level to meet its hiring needs, yet the change to full-time attorneys has been the suggestion of all the independent reviews of indigent-defense services across Louisiana.
The aftermath of Katrina provides an excellent opportunity to reform the system -- both in terms of financing and independent oversight. Fulfilling constitutional obligations to people who are underserved should be a top priority for policymakers and the public at large.
Governor Jeb Bush defended the death penalty this morning, two days after the American Bar Association released a harshly critical report on how the ultimate punishment is handed out in Florida, and a day before a Pensacola cop killer is scheduled to be executed.
"I believe that the death penalty process here is protected, correctly so, by an appeals process that is extensive," Bush said, adding that if anything, it is unfair to crime victims and their families.
"It can go on for more than 10 years. For a lot of people, that is denial of justice," Bush said.
The 454-page report, compiled by Florida attorneys who support and oppose the death penalty, found the process is racially biased and suggested that with an average of more than one exoneration for every three executions, there are not enough safeguards to protect the innocent.
Florida has executed 60 inmates since the death penalty was reinstated in 1973. During the same time, 22 condemned prisoners were exonerated.
Bush defended the rate, saying that inmates have their death sentences overturned for many reasons, not necessarily because they are innocent.
Bush's comments come a day before 48-year-old Clarence Hill is scheduled to die by lethal injection for killing police Officer Stephen Taylor during the Oct. 22, 1982, robbery of a savings and loan in Pensacola.
Bush predicted that Hill's latest arguments, that lethal injection is cruel and unusual punishment, will continue to be rejected by the courts. He pointed out that the method has been used 16 times in Florida, and survived numerous appeals.
"So my expectation is that the execution will go as planned," he said. Bush recently signed a law eliminating a deadline for condemned killers to prove their innocence through DNA testing. He said his office was studying the report, which recommends, among other things, the creation of a commission to study wrongful convictions and claims of innocence.
He warned lawmakers to take a recent Florida Supreme Court ruling to heart that suggested Florida should require death penalty recommendations by juries be unanimous. A proposal to do just that was defeated earlier this year in the Legislature.
"I think it’s definitely worth consideration," Bush said. "When the Supreme Court sends a signal like that, it should be not just cast aside, because ultimately, they will have some say in how the death penalty will work."
(WJZ/AP) Baltimore, MD A death row inmate's lawyer argued Monday in federal court that Maryland's lethal injection process could cause "horrific and painful death" in violation of the Constitution's ban against cruel and unusual punishment. But the state contended the process was quick and painless.
WJZ's Adam May has been following the case. May spoke with Evans' lawyer who is arguing the state's method of execution is unconstitutional.
A. Stephen Hut Jr., an attorney for Vernon Evans Jr., attacked the way the three-drug cocktail used in the process are administered. He also questioned the qualifications of the execution team.
Hut said his client's veins have been so badly damaged from years of drug abuse that lethal injection could cause extreme pain without more careful attention than has been available in past executions.
But Laura Mullally, an attorney representing the state, said Hut's argument has a "wolf-in-sheep's-clothing aspect." She emphasized that "an execution is not a medical procedure."
"It is the antithesis of medical treatment," Mullally said, adding that American Medical Association rules prohibit doctors from participating in executions. Mullally said medical records indicated none of the five men executed in Maryland since 1994 felt pain while being put to death.
Hut, however, said Maryland's current protocol for carrying out lethal injection in Maryland must be changed to avoid being unconstitutionally cruel. Hut cited a similar process used in Ohio, which announced plans to change its system in June after experiencing a 90-minute delay in putting a man to death because officials could not find a viable vein to inject the lethal drugs.
Hut said witnesses heard moans and groans from behind a closed curtain as a viable vein was sought, and that a witness will testify in Baltimore about what happened.
Maryland uses three drugs during executions. Sodium pentothal makes the inmate unconscious, pancurium bromide paralyzes the inmate's breathing and potassium chloride stops the heart. State law calls for the lethal injection to consist of an "ultra-short acting barbiturate" combined with a "chemical paralytic agent" to cause death.
Hut said the process needs someone trained with knowledge of anesthesiology to be in the execution chamber while the drugs are being injected in case something goes wrong. He also criticized the logistics of the rooms used in the execution.
Hut also questioned the qualifications of people who serve on the execution team, saying supervisors have a "cursory at best" understanding of participants' past professional and disciplinary records.
The case, which is being heard in federal court in Baltimore by U.S. District Judge Benson Legg, will include testimony from doctors and members of the execution team, whose anonymity will be protected by closing the courtroom to the public when they testify.
Evans was sentenced to die for the murders of Scott Piechowicz and his sister-in-law, Susan Kennedy, in 1983. In February, Maryland's Court of Appeals stayed his execution.
The state's highest court heard arguments in four separate cases in May, including a claim that racial bias played a role in the decision by prosecutors to ask that he be executed.
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technorati tags: Death+Penalty, Capital+Punishment, Robert+Coe, Sedley+Alley, Greg+Thompson, Paul+Reid
