Amnesty Releases 2015 Death Penalty Report

April 6 — Amnesty International has released its 2015 global report on the death penalty.

AI-2015 Global Map2015 saw 1634 executions, the highest number of  since 1989, most of which took place in Iran, Pakistan, and Saudi Arabia. Executions in Iran topped the list at 977, most of which were for drug-related crimes and included juvenile offenders, in contravention of international law. The Amnesty report excludes China, which does not reveal its statistics, but which is believed to executive thousands each year. (On 4/19/16, International Business Times reported that China has set the threshold for the death penalty in cases of fraud at three million yuan — $463,000.)

Balancing this news is that four countries moved to abolish the death penalty in 2015: Madagascar, Fiji, Suriname, and Congo. In addition, Mongolia has adopted a new criminal code that will end the death penalty in September of this year.

Here in the US, Pennsylvania Governor Tom Wolf placed a moratorium on executions in February 2015 pending review by a task force and in the process reprieving 5 death row prisoners during the year. In December the PA Supreme Court upheld Gov. Wolf’s authority to take this action, though the death penalty statute remains and the moratorium cannot go on indefinitely. Overall, however, the US is fifth on the list of world countries that executes its citizens, with 28 executions and 53 death sentences in 2015. Japan is the only other “first world” country that continues to use the death penalty, executing 4 people in 2015.

AI Report Cover 2015Overall, 102 countries — half of the world — have abolished the death penalty. If we include countries that no longer use it in practice but have yet to remove the statutes, that percentage rises to two-thirds of the world.

Read more and download the AI Report at this page.

1976: How SCOTUS Failed with the Death Penalty

It’s Been 40 Years Since the Supreme Court Tried to Fix the Death Penalty — Here’s How It Failed

03.30.2016 Published by The Marshall Project (link)

A close look at the grand compromise of 1976.

In early April 1976, Potter Stewart, Lewis Powell, and John Paul Stevens met for lunch at the Monocle, a venerable Washington steakhouse, and decided the future of the American death penalty. The three U.S. Supreme Court justices were in a bind. Each harbored substantial misgivings about capital punishment, but each man — Stewart especially — also felt constrained by the issue’s peculiar constitutional history and by the tidal wave of public support that returned the death penalty to the Supreme Court just four years after a splintered court had declared it dead.

1976 SCOTUSIn 1972, Stewart had brokered a 5-4 decision holding that the death penalty as then practiced violated the Eighth Amendment’s ban against cruel and unusual punishment. The court’s ruling — in Furman v. Georgia — was a spectacular long shot. Just one term earlier, in 1971, the justices had upheld the constitutionality of the death penalty under the due process clause of the Fourteenth Amendment. Furman seemed headed in the same direction until Stewart struck an eleventh-hour deal with Justice Byron White, who’d been on the fence for most of the term. Stewart would abandon the moral statement against the death penalty that he’d intended to make and would instead say that the problem with capital punishment was excessive arbitrariness.

Arbitrariness thus became the dominant theme in the most splintered decision in Supreme Court history. Each justice in the Furman majority wrote his own solo opinion — meaning that he spoke only for himself. Each emphasized a different aspect of arbitrariness. Some focused on racism. Some focused on the failure of states to condemn only the “worst” criminals. Some focused on the infrequency with which the death penalty was employed. No one said precisely how much arbitrariness violated the Constitution. Surely Stewart understood, as his colleagues must have, that the focus on arbitrariness — as opposed to deeming capital punishment unconstitutional per se — left the door open for states to rewrite their laws. Nevertheless, the justices believed that, as Stewart told his clerks, “The death penalty in the United States was finished.”

That intuition couldn’t have been more wrong. Between the Furman decision and 1976, 35 states passed new death penalty statutes. Seven made the death penalty mandatory for murder. Others, including Georgia, instead attempted to make the process less “arbitrary” by requiring capital jurors to find “aggravating” factors, by separating capital trials into the guilt/innocence and sentencing phases we see today and by guaranteeing appellate review of all death sentences.

The political and legal momentum against Furman forced the justices to reconsider their positions. So, over two days of oral argument beginning on March 30, 1976, the justices evaluated the constitutionality of the various new state approaches, with Georgia’s new statute as the test case. The hearing had the feeling of a heavyweight prize fight, pitting against one another two of the great lawyers of their generation: Solicitor General Robert Bork, who, a decade later, would be nominated to the Supreme Court, and Anthony Amsterdam, principal architect of the NAACP Legal Defense Fund’s victorious strategy in Furman and widely acknowledged as the greatest civil rights lawyer of the 20th Century.

Two days later, on April 2, the justices met in conference to consider the new death penalty laws. Justices William Brennan and Thurgood Marshall said they would reject both the statutes that made a death penalty mandatory for murder as well as statutes that gave jurors the discretion to sentence defendants to death. Justice White and three of the Nixon appointees—Justices William Rehnquist, Harry Blackmun and Chief Justice Warren Burger—said they’d uphold both approaches. The case came down to Justices Stewart and Stevens and Nixon’s fourth appointee, Justice Lewis Powell.

At that Washington steakhouse, the troika, as they’d come to be known, decided to split the baby. They would reject the mandatory statutes, which they regarded as barbaric, but uphold the guided discretion approach. Together with the four Nixon appointees, they formed a 7-2 majority in Gregg v. Georgia, upholding Georgia’s new discretionary law, and, with Marshall and Brennan, a separate 5-4 majority rejecting the mandatory statutes. This Solomonic compromise created the bedrock principles of modern death penalty jurisprudence: that a non-arbitrary death penalty satisfies the Constitution and that the requirement of non-arbitrariness could be satisfied by Georgia’s approach.

The Gregg decision revived the American death penalty. It also began a social experiment. Underlying Gregg is an empirical proposition: legal standards would make capital jury decisions more predictable. “Let’s have them be as guided and as rational as they can be,” Stewart told his law clerk Ron Stern in 1976. Yet in five years of archival research and interviews for my book A Wild Justice, I found not a shred of evidence that any of the justices considered social science data. Certainly none is cited in the opinion. The most striking features of the compromise Stewart, Stevens and Powell embraced was the speed with which it was reached, the absence of supporting empirical evidence, and the three men’s unquestioning faith in the power of law and the state and local officials sworn to carry it out.

Forty years later, the data are in on the court’s grand compromise. How one interprets the results may depend on what’s being asked. If the essential question today is whether the death penalty is still being applied arbitrarily, the answer couldn’t be clearer. Arbitrariness is rampant. But, on the occasion of Gregg’s ruby anniversary, let’s ask a more refined question, which more directly honors the case’s peculiar history: Is arbitrariness less of a problem than it was before the Supreme Court got involved in 1972? In other words, has Gregg worked?

The answer is a conclusive, resounding no. Whether one interprets the Furmandecision to have been about — individually or collectively — excessive racism, a failure to identify the “worst of the worst” among murderers, the death penalty’s sporadic use, or simple geographical randomness, the “guided discretion” statutes endorsed in Gregg haven’t remotely fulfilled their promise. Randomness has not been reduced and in many respects has grown substantially worse.

Almost all of the justices in Furman noted the low percentage of death-penalty eligible murders that resulted in death sentences. They estimated the rate to be between 15% and 20%. From this statistic, the justices drew different conclusions. Brennan and Marshall cited it as evidence that the death penalty had been rejected by contemporary standards of decency (though the truth is they would have opposed the death penalty regardless). White said an infrequently-used death penalty couldn’t adequately deter crime. His idiosyncratic opinion seemed to invite mandatory laws.

A third view seemed to get at something important about what a constitutional death penalty might look like. Not even the most ardent supporters of the death penalty believe that all murderers should be executed. Somewhere a line has to be drawn, and it should be drawn in such a way that juries regularly accept the penalty’s use. For example, if a state restricted its use of the death penalty to mass murderers it presumably would generate a high sentencing rate. As the state broadened its law to include less aggravated kinds of murder its sentencing rate would decline as jurors (or judges) rejected borderline capital charges.

Implicit in Furman was the premise that states had for decades defined the universe of death-eligible murders too widely. Implicit in Gregg was the premise that guiding jury discretion would create some balance between death-eligible cases and actual death penalties. But 40 years of statistics tell us that the death penalty is even rarer than it was before.

In gross terms, U.S. executions have been trending downward for some time. Annual executions peaked at 197 in 1935, hovered between 50 and 100 per year during the 1950s, fell further after the NAACP Legal Defense Fund took on the death penalty in the mid-1960s, and temporarily ended with Furman. Post-Gregg, executions peaked at 98 in 1999. They’ve been declining fairly steadily since. Thirty-five people were executed in 2014. Last year, states killed 28 people, the lowest total since 1991. Death sentences have been dropping too—from more than 300 annually in 1995 and 1996 to 73 last year.

Over this period, death-sentencing rates — meaning the percentage of murders eligible for the death penalty who are actually sentenced to death — have experienced a parallel decline. Almost every state-level study has identified a rate either at the low end of, or substantially below, Furman’s 15%-20% threshold. In California, the nation’s largest producer of death sentences, the most comprehensive statewide studies have identified a sentencing rate between 4.6% and 5.5%. In a review of 34 years of Connecticut death penalty cases, Yale’s John Donohue found a sentencing rate of 4.4%. A study of all Colorado murder convictions between 1999 and 2010 revealed a rate of 0.56%.

Read the rest of the article at The Marshall Project (link).

NH House Defeats Death Penalty Expansion Bill

(Concord NH) The New Hampshire House of Representatives tonight soundly agreed, without debate​ ​and with an overwhelming voice vote, to accept the House Criminal Justice Committee’s recommendation to reject HB 1552. HB 1552 proposed to expand the death penalty to include terrorists and those murdered in the exercise of their civil liberties. Here is the barely-30-second video record​ ​(from the House’s livestream feed)​:

Full House 1552 VidCap

“We are very pleased with the House’s loud rejection today of HB 1552. House members agreed that this bill is totally unnecessary since federal law clearly gives jurisdiction for prosecuting acts of terrorism to the federal government,” said Barbara Keshen, former prosecutor for the New Hampshire Attorney General’s Office and current chair of the New Hampshire Coalition to Abolish the Death Penalty.

“The bill is also overly broad and could potentially turn any murder case into a capital murder case,” added Keshen. “It would have made NH’s death penalty statute one the most far-reaching in the country.”

“Like other terrorism trials around the country, prosecuting each case under this bill would have cost the state tens of millions of dollars,” said Rep. Robert Cushing. “As terrible as murder is, killing the killer rarely brings healing and it fails to do the one thing victim families want: to have their loved ones back again,” Cushing added.

Many thanks to all those who reached out to their Reps to ​urge them to ​defeat the bill. They heard you loud and clear! Though we have not yet passed repeal, it’s clear that most folks agree that NH can live without the death penalty.

NH Senate Deadlocks on Death Penalty Suspension Measure

NH Senate Considers SB 463 on March 3, 2016
NH Senate Considers SB 463 on March 3, 2016

The New Hampshire Senate voted today to overturn the Senate Judiciary Committee recommendation of Ought to Pass on SB 463 which suspends the implementation of the death penalty until it can be ensured that it is not being imposed on innocent people. Following a 12-12 vote on an amendment offerd by Senator Pierce that would have fully repealed the death penalty, the original bill was tabled on a voice vote.

The Senate Judiciary Committee supported the bill on a bipartisan 3-1 vote after they heard overwhelming testimony in support of the bill from a death row exoneree, clergy, law enforcement, a former FBI Special Agent, a judge, and the New Hampshire Coalition to Abolish the Death Penalty.

“We are very disappointed that the Senate would ignore the committee vote. As a former prosecutor, I have seen first hand how innocent people can be convicted of crimes they did not commit. Since 1972, 156 death row inmates in the United States have been exonerated. It is unacceptable to have a system that kills innocent people,” said Barbara Keshen, NHCADP’s Board Chair.

For the time being, NH remains the only New England state that still has the death penalty on its books.

A notable development for our efforts this year was that two conservative Republicans, Senator Kevin Avard and Senator Gary Daniels, co-authored the bill and worked hard to move their Senate peers. This is the kind of progress that NHCADP can build on. Please take a moment today to send them thank you’s:

The full roll call vote (on the full repeal amendment) was as follows:

Avard, Kevin A. – Yea
Birdsell, Regina – Nay
Boutin, David R – Nay
Bradley, Jeb – Nay
Carson, Sharon M – Nay
Cataldo, Sam – Yea
D’Allesandro, Lou – Nay
Daniels, Gary L. – Yea
Feltes, Dan – Yea
Forrester, Jeanie L – Nay
Fuller Clark, Martha – Yea
Hosmer, Andrew J. – Yea
Kelly, Molly M – Yea
Lasky, Bette R – Yea
Little, Gerald H. – Nay
Morse, Chuck W – Nay
Pierce, David – Yea
Prescott, Russell E – Nay
Reagan, John – Nay
Sanborn, Andy – Nay
Soucy, Donna M. – Yea
Stiles, Nancy F – Nay
Watters, David H – Yea
Woodburn, Jeff – Yea

You may wish to write to your Senator with thanks (or encouragement to reconsider) using our online tool here.

A video of the just under 14-minute proceeding can be viewed here:


Update: Progress on SB 463 – Death Penalty Suspension bill

Update 2.22.16: The Senate floor debate and vote on SB 463 will be on Thursday, March 3! Please write a letter to the editor (LTE) of your local newspaper and to the Union Leader today! See our LTE tool here (sample talking points are provided on that page).

Update 2.16.16: On Tuesday, February 16, the Senate Judiciary held an executive session on SB 463. There was little debate or discussion, and as the members of that committee are mostly pro-repeal Senators, they voted 3-to-1 for an “OTP” or ought-to-pass recommendation on the bill. Voting for: Senators Daniels, Pierce, and Cataldo. Voting against: Senator Carson. (Sen. Lasky was absent but supports the bill). The bill will now move to the full Senate, perhaps as soon as the week Starting February 29. Stay tuned!

On Thursday, January 28, we held an effective hearing in front of the Senate Judiciary Committee on the proposed death penalty suspension bill. More than 20 people testified in favor of the bill, and only 2 against. Supporters included a death row exoneree, clergy, law enforcement, a former FBI Special Agent, a former NH Attorney General, a former NH Surpreme Court Justice, several attorneys, several murder victim family members, among others.

(Concord) – A broad group of people testified today in support of SB 463, which suspends the implementation of the death penalty until it can be ensured that it is not being imposed on innocent people. The bill is sponsored by Senator Kevin Avard and Senator Gary Daniels and was heard by the Senate Judiciary Committee.

Ray Krone, before his exoneration in 2002, spent more than 10 years in Arizona prisons, including nearly three years on death row, for a murder he did not commit.

“In 1991 my world was turned upside down when Kim Ancona was murdered in a Phoenix bar and I was arrested for the crime. The case against me was based largely on circumstantial evidence and the testimony of a supposed ‘expert’ witness, who claimed bite marks found on the victim matched my teeth. This testimony was later discredited but I was sentenced to death in 1992.

“In 2002 I became the 100th person to be exonerated from death row when DNA found at the murder scene indicated the guilt of another man. My situation is not unique, innocent people are being executed and it must stop,” said Krone.

Barbara Keshen, former prosecutor for the New Hampshire Attorney General’s Office and current chair of the New Hampshire Coalition to Abolish the Death Penalty, told the committee that despite New Hampshire having an excellent justice system, it isn’t perfect. She talked about a New Hampshire case she handled in which an innocent man came very close to being convicted.

“To date over 150 death row inmates have been exonerated after evidence surfaced that they were wrongly convicted,” said Keshen. “These exonerations resulted from mistaken eyewitness identifications, incompetent legal counsel, shoddy forensic results, jailhouse snitches and coerced confessions. Can we really say that it is impossible for an innocent person to be executed in this state?” asked Keshen.

Tom Parker is a 30-year law enforcement veteran who spent 24 years with the FBI and has conducted or supervised over 10,000 Federal and state criminal investigations.  For the past 20 years, he has served as an expert witness on police practices and investigative competency in homicide cases all across the country.

“In homicide investigations, I have seen countless instances of falsified investigative reports, witness tampering, erroneous or coached eye witness identifications, the destruction of exculpatory evidence, fictitious crime lab results including incompetent DNA testing, and perjured testimony. The most frightening part of all of this is the volume and frequency of these transgressions committed by police officers.  We arrest and convict innocent people almost every day in this country, and there is now a growing body of proof that we have convicted and executed innocent people for crimes they did not commit. As long as we have a death penalty in America, we will continue to execute innocent people,” said Parker.

Also testifying before the committee was Sam Millsap, a lawyer in practice for over 40 years and currently an Adjunct Professor of Law at St. Mary’s University Law School. “When I was the elected District Attorney in San Antonio, Texas, I oversaw the indictment, prosecution, and conviction of Ruben Cantu. I asked the jury to sentence him to die based on the eyewitness testimony of a single person and they did.  Years after his execution that key eyewitness recanted his testimony. There is no appeal after an execution takes place. Ruben Cantu is dead and I have to live with that every day,” said Millsap.

See also:

NH1 News: Wrongly convicted murderer comes to NH to push for repeal of state’s death penalty (video)

Concord Monitor: Evidence mounts against death penalty

That is the description of Senate Bill 463, a bipartisan piece of legislation that is the very definition of reasonable: Until the justice system is perfect, the state shouldn’t execute anybody.

For opponents of the death penalty in New Hampshire, it is just another chapter in a fight that has been raging many for years. Unless a great number of lawmakers suddenly find the political will to do the right thing, its passage is doubtful.

The trouble is that this is a society too accepting of collateral damage. Politicians talk of innocents killed by American weapons overseas as if the victims weren’t people at all but rather battlefield layers to be stripped away. And then they strip away the social safety net to punish the lazy and those who wish to exploit the system. If a few kids go to bed hungry or live on the streets, so be it. The same goes for death row. If one innocent person out of 25 guilty ones has to die, that is simply the price to be paid in this eye-for-an-eye world.

Anyone who has read Franz Kafka should feel a chill: In his world, you are that one out of 25. One day you are living your hardscrabble life and the next you are in a cell answering questions about a heinous crime of which you have no knowledge. But there’s enough evidence, and enough investigative incompetence, to suggest otherwise. Once those who hold your fate in their hands are convinced of your guilt, it’s just a matter of making the pieces fit together, even when they don’t.

But that’s not a Kafka novel; it’s Kevin Cooper’s story.

There is no riveting Netflix documentary about him, so don’t feel bad if the name doesn’t ring a bell. Cooper has been on death row in California since 1985, after he was found guilty of murdering Douglas and Peggy Ryen, their 10-year-old daughter, Jessica, and 10-year-old Chris Hughes in Chino Hills. It was a brutal crime. According to a lengthy NBC News report last month, the victims received more than 144 wounds in four minutes. The one survivor, 8-year-old Josh Ryen, had his throat slit.

Although Josh would later point the finger at Cooper, a black man, he initially told police that three white or Latino men murdered his parents, according to NBC. Other witnesses spotted three white men driving away from the house in the family’s stolen station wagon. And a woman called police to say that on the night of the murders she found her husband’s coveralls splattered with blood. He was a white man and convicted murderer. The police never tested the blood on the coveralls, NBC reported, and instead discarded them in a dumpster.

As sometimes happens, the police had their man and any evidence that didn’t fit that narrative was discarded. So Cooper was sentenced to be executed on Feb. 10, 2004. The Ninth Circuit Court decided at the last minute to review his case, NBC reported, eventually ordering new proceedings after a number of problems were found with the original case. That led to five years of legal wrangling before the conviction was ultimately upheld in 2009. This past November, California lifted its moratorium on executions, and so the hands of time began moving faster for a potentially innocent man waiting for his final day on Earth.

Cooper is black. He is poor. He was on the run from police – and hiding out in a house near the crime scene – when the murders happened. If Cooper is indeed innocent, as several federal judges have suggested, it has all the makings of a Kafkaesque nightmare.

One of these years, New Hampshire lawmakers will wake up and realize that to take one innocent life is to take one too many, and so will abolish the death penalty.

Let this be the year.

NH: Hearing for Death Penalty Suspension Bill Thursday 1/28/16

SB463-FN-CropThis Thursday at 2pm, the NH Senate Judiciary Committee will hear testimony on SB 463-FN, which proposes a suspension on the death penalty in NH. The current plan is for the hearing to take place in the State House in Room 100.

SB-463 was authored by Republican Senators Kevin Avard and Gary Daniels, with Senators Bette Lasky and Molly Kelly coming on as Democrat co-sponsors. To win the support of several conservative lawmakers, the bill was written to create an indefinite suspension of the death penalty in NH, until such time as a mechanism is in place to ensure that no one who is innocent can be executed. Neither we nor the bill sponsors believe that time will ever come.

Ray Krone, the 100th US Death Row Exoneree
Ray Krone, the 100th US Death Row Exoneree

Since 1972, 156 death row inmates have been exonerated. More than 300 additional people are estimated to have been wrongly sentenced to death during that time, according to one study. How many more innocents there are sitting on death row, or have already been executed, we may never know. We do know that the justice system is imperfect and that race, class, and geography have more impact on who gets sentenced to death than the specifics of the crime. Even DNA forensics, already an imperfect science but which has been used to exonerate many people, is applicable in only about 15% of cases.

If passed, SB 463, while falling short of full repeal, would represent a major step towards ending the death penalty in New Hampshire. As a Republican-led effort, it would clearly demonstrate the ever-widening political support for ending capital punishment, and put us one step closer to its ultimate demise.

This year, for the hearing we are bringing in Ray Krone from Tennessee (shown in photo), the 100th death row exoneree; Sam Millsap, a former Texas prosecutor; and Tom Parker, a former FBI Investigator. Others testifying will include several  faith community leaders, former law enforcement leaders, murder victim family members, lawyers, legislators, a former NH Attorney General, a former NH Supreme Court Justice, and a psychiatrist, among others.

Read the Bill (PDF).