Death Penalty Becomes More Rare and More Problematic

While a majority of states have abandoned the death penalty altogether, either in law or in practice, the handful of states that continue to execute prisoners do so despite a number of troubling issues relating to its implementation.
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As executions in the United States hit a 20-year low, one might assume that this trend reflects a more judicious and careful application of the death penalty--that judges and prosecutors are truly reserving the punishment for the worst of the worst. But comprehensive death penalty assessments by the American Bar Association, along with many other organizations, tell a different story.

While a majority of states have abandoned the death penalty altogether, either in law or in practice, the handful of states that continue to execute prisoners do so despite a number of troubling issues relating to its implementation. Many defendants and prisoners receive poor quality legal assistance. Many are factually innocent: indeed, in just the past month, three men previously sentenced to death in Ohio were exonerated of their crimes. Poor training and shortages of drugs traditionally used in lethal injection have led to a series of botched executions that cause horrific suffering to the executed persons. And according to a 2014 study, the vast majority of recently executed prisoners nationwide suffered from one or more significant cognitive and behavioral deficits, and more than half had a severe mental illness such as schizophrenia, post-traumatic stress disorder, or psychosis.

The Supreme Court has held that each of these issues--ineffective legal assistance, factual innocence, flawed execution procedures, and mental illness and impairment--raises the possibility that the execution could be found unconstitutional. A closer examination of the seven states that carried out executions in 2014 only amplifies these concerns.

Recently, Georgia executed Robert Wayne Holsey, an intellectually impaired man with an IQ of 70. During Holsey's trial, his lawyer drank a quart of vodka every night. The lawyer failed to present evidence of Holsey's intellectual disability or to hire a mitigation specialist who could have shed light on Holsey's background, despite receiving money from the court to do so. The lawyer was disbarred and imprisoned for theft of client funds in an unrelated case shortly after Holsey was sentenced to death.

Just weeks earlier, Missouri executed Leon Taylor, an African-American man sentenced to death by an all-white jury. The racial dynamics are particularly troubling given that the prosecutor removed all six prospective African-American jurors from the jury pool. Taylor was raised in deplorable conditions. His mother was an alcoholic who choked and beat Taylor. He was sexually assaulted when he was only five, and he witnessed terrible violence, including his mother's murder of her husband.

In January, Florida executed Thomas Knight, who was sentenced to death by a vote of nine jurors to three. Along with Alabama, Florida is one of only two states that do not require unanimity to impose a death sentence; moreover, Florida requires just seven of twelve jurors to recommend a sentence of death. Knight's case offered ample grounds for such disagreement: during his trial, more than half a dozen mental health experts testified that Knight was severely mentally ill at the time of his crime. The jury was also presented with evidence showing that Knight was exposed to extreme violence, abuse, and hunger as a child.

Texas executed 10 prisoners last year--the lowest number since 1996. One of those ten was Lisa Coleman. The Fifth Circuit Court of Appeals found that Coleman was severely abused as a child starting from the age of four months. As a baby, she was whipped with extension cords, sexually abused by her uncle for years, and later diagnosed with bipolar disorder. Yet despite Coleman's serious mental illness, the court allowed her execution to proceed in September.

Also in Texas, the Fifth Circuit stepped in just hours before the state's scheduled execution of Scott Panetti to issue a temporary stay. Panetti's 30-year history of paranoid schizophrenia cast serious doubt on whether he could be constitutionally executed. His case is currently pending before the Fifth Circuit.

Executions also occurred in Arizona, Oklahoma, and Ohio in 2014, including the horrifically botched executions of Joseph Wood, Clayton Lockett, and Dennis McGuire respectively. Wood's execution was particularly gruesome: the executioners injected him with supposedly-lethal drugs at least 15 times, yet it still took nearly two hours to kill him while he gasped for air. In a horrific sequel, Lockett's executioners ran out of execution drugs before he died, and the injections were performed so incompetently that Lockett bled profusely, leading one state official to describe the execution as "a bloody mess." Following the botched executions, each state temporarily put further executions on hold to review its execution procedures.

As long as executions to continue to take place in the United States, at a minimum the process should be fair and humane, consistent with the requirements of the Constitution. But a review of the executions that took place last year raises serious questions about whether current execution practices meet this standard.

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