The current U. S. Supreme Court term is barely a month old, but the justices have already heard argument in four death penalty cases — and will hear a fifth on Monday — making the term the most important for capital punishment issues in decades, legal experts say.

The justices themselves fueled speculation near the end of last term that the court might finally address the death penalty’s viability under the Eighth Amendment, with Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) opining in Glossip v. Gross that it was “highly likely that the death penalty violates the Eighth Amendment.”  And Justice Antonin Scalia last week told an audience at the University of Minnesota Law School that he “wouldn’t be surprised if the Supreme Court eventually strikes down capital punishment.”

That question has not yet been squarely put before the high court, but the term is young and with five death penalty cases already under their collective belt, the justices still have plenty of time to take it on.

Monday’s case, Foster v. Chatman, raises an issue well known to North Carolinians — racial bias in juror selection in capital cases — and comes at a time when the state Supreme Court itself is grappling with cases arising under the now-repealed Racial Justice Act.

As described by Rory Little at SCOTUSblog:

Foster, an eighteen-year-old African American at the time, was convicted of killing an elderly white woman during a burglary in Georgia. During jury selection, the prosecutor struck all four black potential jurors, and Foster was convicted and sentenced by an all-white jury. When an objection was raised under the Court’s 1986 decision in Batson v. Kentucky, the prosecutor offered “race neutral” reasons for striking the black jurors, while protecting his file from discovery.

Some nineteen years later, the prosecutor’s jury selection notes — produced pursuant to an Open Records Act request — revealed a direct targeting of black jurors, but state courts refused to entertain Foster’s request for relief.

For more on the growing push to end capital punishment, and reasons why, read here and here.




We may not be quite there yet, but this new post by Kristin Collins of the Center for Death Penalty Litigation (which originally appeared on the blog of the Center for Alternatives to the Death Penalty) does a great job of explaining how thoroughly dysfunctional the nation’s various death machinery systems have become.

090309-1854-memotodeath1.jpgU.S. executions grind to a halt as lethal injection stumbles
By Kristin Collins

The death penalty has been on the decline in the U.S. for more than a decade, but right now, capital punishment is imploding rather spectacularly in almost every state in the nation.

States are scrambling for lethal drugs, importing them from illegal foreign sources, and passing laws to keep their sources secret. Several executions have been called off with minutes or hours to spare because of faulty drugs. The handful of states still attempting to execute inmates, often with untested drug combinations, have created a spectacle of torturous botched executions.

Here is just a sampling of recent headlines:

Oklahoma, just months after the bloody and horrifying 45-minute execution of Clayton Lockett, accidentally executed a prisoner using the wrong drug. The error was discovered minutes before a second man was set to be executed with the same unapproved drug combination. Executions are now on hold indefinitely.

Arizona and Texas attempted to illegally import lethal drugs from India, only to have federal agents seize the drugs at the airport.

Ohio — after passing laws to keep the sources of its drugs secret, and failed attempts to obtain drugs from unregulated compounding pharmacies and illegal foreign sources — gave up and put executions on hold until 2017, saying it simply could not find the drugs it needed. Executions are now stalled in several states because of drug shortages.

Utah has again legalized the firing squad, to be used if the state is unable to find drugs for lethal injection.

Executions are now on hold in 16 states, including North Carolina, due to problems with lethal injection. They outnumber the small handful of states that still have a functioning death penalty. Read More


Death penaltyIt’s hard to follow the death penalty case of Richard Glossip, the latest inmate headed to execution by the state of Oklahoma, without wondering if his prosecution, conviction and, if it happens, death by lethal injection could have been bungled any more than has already happened.

Glossip, who had no arrest record and no history of violence, was sentenced to death for a murder he didn’t commit. His conviction was based upon testimony from the actual murderer, Justin Sneed, who’d bludgeoned the victim with a bat.  In exchange for a life sentence, Sneed testified that Glossip made him do it.

Oklahoma’s Court of Criminal Appeals overturned Glossip’s first conviction because his lawyer was inept, and the case against him grew weaker by the day afterwards.

As related by Lincoln Caplan in this New Yorker piece, the prosecution then agreed that no physical evidence linked Glossip to the crime scene. Nonetheless, he was convicted and sentenced to death a second time based upon a different factual account given by Sneed — one of eight different accounts he has told, according to Glossip’s lawyers.

After Oklahoma botched the execution of another death row inmate last year through the use of a three-drug cocktail, the U.S. Supreme Court stayed Glossip’s scheduled execution while the justices considered a challenge to the use of those drugs.

The high court then sustained the use of that cocktail in June, holding in a 5-4 opinion  that Glossip’s attorneys had failed to identify any alternative drug that the state could use.

Attempts at a stay based upon evidence showing innocence, including to the U.S. Supreme Court — which issued a denial over a dissent by Justice Stephen Breyer — proved fruitless, and Glossip was set for execution late yesterday.

At the last minute, though, Oklahoma’s governor issued a stay based upon yet another snafu:  the state had the wrong drug.

All of which leads to this question:  At what point should the state pull back and reconsider whether the death penalty is deserving in a case?

More importantly, at what point does the U.S. Supreme Court say enough is enough?

Caplan argues in his piece that if an abolition of the death penalty by the high court comes soon, Glossip might just be the reason:

It provides a case study in the unreliability of the application of the death sentence. Glossip’s current lawyers have raised serious doubts about his guilt, which make his conviction dubious and his death sentence unjust. His counsel in his first trial was reprehensibly bad. His counsel in his second trial exceeded the very low standard for ineffective counsel, but did a poor cross-examination of Sneed, the main witness against Glossip. From the decision to charge Glossip with a capital crime to some unsavory tactical moves in the second trial, the prosecution was overzealous and may have crossed the line into misconduct.

As Caplan notes, four of the justices are already there, including Breyer, who in his dissent in the June Glossip opinion openly invited a constitutional challenge to the death penalty.

And some experts now suggest that Justice Anthony Kennedy may be ready to cross over, in light of recent statements by Pope Francis that echo Kennedy’s own words in a 2014  opinion overturning the death sentence of an intellectually-disabled Florida man: “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”


BrownMcCollum-v2-web-60percent-grayAs Kristin Collins of the Center for Death Penalty Litigation explained this week in an insightful blog post, the state’s ultra-belated decision to finally compensate the exonerated Henry McCollum and Leon Brown (who were wrongfully sentenced, respectively, to death and life imprisonment for a murder they did not commit) ought not to be the end of the story on the subject. This is from her post:

“As Gretchen Engel pointed out in her recent op-ed, the N.C. legislature has not proposed a single bill that would help determine if there are more innocent people on death row — even though more than 100 of North Carolina’s 148 death row inmates, like McCollum and Brown, were tried before the enactment of key reforms designed to protect the innocent.

The problems that plagued Henry’s case have not gone away, as we see from the many wrongful prosecutions that continue to today. A recent report showed that North Carolina routinely targets people with the death penalty based on flawed investigations and weak evidence.”

Add to this the inadequate compensation that the two men have been awarded (only around $22,500 per year for each of the 30+ years during which freedom was unjustly denied to them) and the absurd delay that Gov. Pat McCrory’s failure to issue a prompt pardon caused and it’s clear that changes to the law are necessary.

Interestingly, as it turns out, the North Carolina House agrees. Back in April, the House passed two bills and sent them to the Senate that would address some of the problems highlighted.

  • House Bill 676, which passed the House unanimously, would make it easier for those erroneously convicted to gain compensation by removing the superfluous but burdensome roadblock of requiring a formal gubernatorial pardon.
  • House Bill 678, which passed 110-2, would make multiple strengthening amendments to the laws governing the state’s Innocence Inquiry Commission.

Another bill that remains in the Appropriations Committee, House Bill 398, would amend the laws governing how much compensation those who have been wrongfully imprisoned for decades can receive by, among other things, raising the cap from $750,000 to $1,500,000.

Not surprisingly, however, neither of the bills sent over by the House has yet been taken up by the Senate. Meanwhile, the proposal to raise the cap on compensation continues — as far as we can tell given the shroud of secrecy on Jones Street — to be ignored by budget negotiators.

In other words, McCollum and Brown have finally received a measure of partial and absurdly delayed justice, but the system that caused the problem remains broken and ignored.


BrownMcCollum-v2-web-60percent-grayThe exonerations of Henry McCollum and Leon Brown were in the news again yesterday as the state, finally and belatedly, got around to agreeing to compensate the men for having ruined their lives.

In case you missed it, however, Kristin Collins of the Center for Death Penalty Litigation posted this insightful take on what the exonerations mean for the system as a whole, why there is every reason to believe that there are more McCollums and Browns out there and the lack of action by state leaders to address this outrageous problem.

One year after N.C.’s most shocking exoneration: What have we learned?

By Kristin Collins

One year ago today, Henry McCollum and Leon Brown were declared innocent in a Robeson County courtroom. It was a case like North Carolina had never seen before.

McCollum was North Carolina’s longest serving death row inmate. During the 31 years that preceded their exonerations, the half-brothers had been held up by countless politicians and judges — including U.S. Supreme Court Justice Antonin Scalia — as examples of the kinds of savage killers who make the death penalty necessary.

Last September, we all realized, three decades too late, that we had been utterly wrong about these two no-longer-young men. Instead of the cold-hearted killers we imagined, they had been scared, intellectually disabled teenagers who were coerced into confessing to a crime they did not commit.

They were poor and African Americans living in a deeply segregated county. They were powerless in a justice system that favors the powerful.

Press from all over the world covered the story. It seemed then that our justice system would never be the same.

And yet, a year later, North Carolina has done little to ensure that their story won’t be repeated.

As Gretchen Engel pointed out in her recent op-ed, the N.C. legislature has not proposed a single bill that would help determine if there are more innocent people on death row — even though more than 100 of North Carolina’s 148 death row inmates, like McCollum and Brown, were tried before the enactment of key reforms designed to protect the innocent.

The problems that plagued Henry’s case have not gone away, as we see from the many wrongful prosecutions that continue to today. A recent report showed that North Carolina routinely targets people with the death penalty based on flawed investigations and weak evidence.

What’s more, McCollum and Brown are still waiting on the meager state compensation to which they are entitled for their decades of wrongful imprisonment. (The payment was finally approved today, but has not yet been issued.)

Let’s not forget the lessons we learned one year ago today — about just how wrong our justice system can get it, and how difficult it can be to uncover the truth.