1
Imposition of the death penalty upon the
poor, racial
minorities,
the intellectually
disabled and the mentally ill
Stephen B. Bright*
Presentation at program of the High Commissioner for Human Rights of the United Nations,
United Nations Headquarters, New York, April 24, 2014
The death penalty is imposed in the United States upon the poorest,
most
powerless,
most marginalized people
in
the
society.
Virtually
all
of
the
people
selected for execution are poor, about half are members of
racial minorities, and the overwhelming majority were sentenced to
death for crimes against white victims. Many have a significant
intellectual disability or suffer from a severe mental illness. Many others
were the victims of brutal physical, sexual and psychological abuse
during
childhood
and lived on the margins of society before their arrests.
Some are innocent. They are subject to discretionary decisions by law
enforcement officers, prosecutors, judges and jurors that are often
influenced by racial prejudice. Because of their poverty, they are often
assigned lawyers who lack the skills, resources and inclination to
represent them capably in capital cases.
One does not need to look far for illustrative examples. As of this
writing, the state of Georgia plans to execute Warren Hill, an African
American man, despite the fact that he is intellectually
disabled.
1
The
United States
Supreme
Court has held that the Constitution does not
allow the
execution
of a person who is intellectually disabled (once
called “mentally retarded”),
2
but Georgia requires that a person facing
*
Stephen Bright is president and senior counsel of the Southern Center for Human
Rights in Atlanta, Georgia, and Harvey Karp visiting lecturer at Yale Law School.
His curriculum vitae and publications are available at
www.law.yale.edu/faculty/SBright.htm
. This paper has been revised and updated
since presented to the UN.
1
It has been delayed in doing so while the state’s supreme court considered and
rejected his challenge to the secrecy of its lethal injection procedures. Owens v. Hall,
758 S.E.2d 794 (Ga. 2014).
2
Atkins v. Virginia, 536 U.S. 304 (2002) (using the term “mental retardation”).
2
death prove intellectual disability beyond a
reasonable
doubt.
Although
four experts testified at the hearing on the issue that Hill was not
intellectually disabled, they all later changed their opinions when they
reviewed additional information about him. As a result, all nine experts
who have examined Hill have found that he is intellectually disabled.
Nevertheless,
the state and federal courts have held that they are
powerless to prevent a patently unconstitutional execution.
Before the Supreme Court held that the mentally retarded could not be
executed, a Florida court found that Freddie Lee Hall had been
“mentally retarded his entire life.”
3
But after the Supreme Court’s
decision, the Florida courts held that he is not retarded and could be
executed because of an IQ score above 70.
4
However, the United States
Supreme Court held that Florida could not treat an IQ score above 70 as
final and conclusive and, instead, must consider other evidence of
intellectual disability. Other states have fashioned their own definitions
of intellectual disability.
The Texas Court of Criminal Appeals held that
someone with the severe mental limitations of Lennie in John Steinbeck’s
Of Mice and Men
(1973) would be exempt from the death penalty, but not
others who were diagnosed by psychologists as intellectually disabled.
5
This definition allowed Texas to execute Marvin Wilson
in 2012, even
though
he had an IQ of 61, which is below the first percentile in human
intelligence, sucked his thumb, and could not tell the difference between
left and right.
6
Glenn Ford, a black man, was released in March 2014 after 30 years on
death row in Louisiana’s notorious Angola Prison for a crime he did not
3
Hall v. Florida, 134 S.Ct. 1986, 1991 (2014).
4
Id.; Andrew Cohen, “Supreme Court case may stop states that still execute mentally
disabled”, The Atlantic, Feb. 28 2014, available from
www.theatlantic.com/health/archive/2014/02/supreme-court-case-may-stop-
states-that-still-execute-the-mentally-ill/283969/.
5
Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004).
6
Andrew Cohen, “Of mice and men: the execution of Marvin Wilson”, The Atlantic,
Aug. 8, 2012, available from www.theatlantic.com/national/archive/2012/08/of-
mice-and-men-the-execution-of-marvin-wilson/260713/.
3
commit.
7
As a result of his poverty, Ford was assigned two lawyers to
represent him at his capital trial. The lead attorney was an oil and gas
lawyer who had never tried a case, criminal or civil, before a jury. The
second attorney had been out of law school for only two years and
worked at an insurance defence firm on slip-and-fall cases. As often
happens in capital
cases,
the
prosecutors used
their
peremptory strikes to
keep blacks off
the jury. Despite a very weak case against him, Ford,
virtually defenceless before an all-white jury, was sentenced death.
Ford is just one of many people who were found guilty beyond a
reasonable doubt in capital and non-capital cases but were actually not
guilty at all. States have already executed innocent people—like Carlos
DeLuna and Cameron Todd Willingham in Texas
8
—and will continue to
do so as long as they have the death penalty.
Missouri executed John Middleton in July 2014, despite questions about
his guilt and his mental competence. United States Appeals Court Judge
Kermit Bye, dissenting from a decision vacating a stay granted by a lower
court, stated, “Missouri is positioned to execute a man who may very
well be incompetent. That fact simply cannot be denied or overstated.
But, for some reason, that fact has been ignored.”
9
Florida
executed
John
7
Andrew Cohen, “Freedom after 30 years on death row”, The Atlantic, March 11,
2014, available from www.theatlantic.com/national/archive/2014/03/freedom-
after-30-years-on-death-row/284179/; Andrew Cohen, “Glenn Ford’s first days of
freedom after 30 years on death row”, The Atlantic, March 14, 2014, available from
www.theatlantic.com/national/archive/2014/03/glenn-fords-first-days-of-freedom-
after-30-years-on-death-row/284396/; Andrew Cohen, “The meaning of the
exoneration of Glenn Ford”, Brennan Center, March 13, 2014,
www.brennancenter.org/analysis/meaning-exoneration-glenn-ford
.
8
James S. Liebman, The Wrong Carlos: Anatomy of a Wrongful Execution (Columbia
University Press 2014); and “The wrong Carlos”, available from
http://thewrongcarlos.net/
; Maurice Possley, “Fresh Doubts over a Texas
Execution,” Washington Post, Aug. 3, 2014, available from
http://www.washingtonpost.com/sf/national/2014/08/03/fresh-doubts-over-a-
texas-execution/; David Grann, “Trial by fire: did Texas execute an innocent man?”,
The New Yorker, Sept. 7 2009, available from
www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann?printable=true
.
9
Chris McDaniel, “After delays, Missouri carries out sixth execution this year”, St.
Louis Public Radio, July 16, 2014, available from
4
Ferguson,
a
black
m
a
n,
who
suffered
from
schizophrenia, in 2013 even
though he believed that he was the Prince of God and that after
execution, he would be resurrected and return to earth in that capacity.
The federal Court of Appeals in Atlanta treated this as nothing more
than an unusual religious belief:
While
Ferguson’s
thoughts about what happens after death
may seem extreme to many people, nearly every major world
religion—from Christianity to Zoroastrianism—envisions
some kind of continuation of life after death, often including
resurrection. Ferguson’s belief in his ultimate corporeal
resurrection may differ in degree, but it does not necessarily
differ in kind, from the beliefs of millions of Americans.
10
The court warned against treating unusual religious beliefs as proof of
mental illness. But religious delusions and obsessions are frequent
manifestations of mental illness. This was just an effort by judges to gloss
over the fact that Florida and other states are executing people who are
out of touch with reality.
Poverty and poor
lawyering
Georgia
plans
to
execute
Robert
Wayne
Holsey,
an
African
American,
even though he was represented at his trial by a lawyer who drank a
quart of vodka
every
night of trial and was
preparing
to be sued,
criminally
prosecuted,
and disbarred for stealing client funds.
11
Holsey’s
other
court-appointed
lawyer had no experience in defending capital
cases and was given no direction by the alcoholic lawyer in charge of the
case except during trial, when she was told to
cross-examine
an expert on
DNA and give the closing argument at the penalty phase.
12
The lawyers
http://news.stlpublicradio.org/post/after-delays-missouri-carries-out-sixth-
execution-year.
10
Ferguson v. Secretary, 716 F.3d 1315, 1342 (11th Cir. 2013).
11
Marc Bookman, “This man is about to die because an alcoholic lawyer botched his
case”, Mother Jones, April 22, 2014, available from
www.motherjones.com/politics/2014/04/alcoholic-lawyer-botched-robert-wayne-
holsey-death-penalty-trial?page=2.
12
Id.
5
failed to present mitigating evidence that might well have convinced the
jury to impose life imprisonment instead of death: Holsey was
intellectually limited and as a child had been “subjected to abuse so
severe, so frequent, and so notorious that his neighbours called his
childhood home ‘the Torture Chamber.’”
13
Holsey was by no means the first person sentenced to death at a trial
where he
was represented
by a
drunken
lawyer.
Ronald Wayne Frye,
executed
by
North
Carolina, was represented by a lawyer who drank 12
shots of rum a day during the penalty phase of the trial.
14
And there are
other cases of intoxicated lawyers, drug-addicted
lawyers, lawyers who
referred
to their clients with racial
slurs
in
front
of the
jury,
lawyers who
slept through testimony (three people were sentenced to death in
Houston at trials in which their lawyers slept
15
), lawyers who were not in
court when crucial witnesses testified, and lawyers who did not even
know their client’s names.
16
13
Holsey v. Warden, 694 F.3d 1230, 1275 (11th Cir. 2012) (Barkett, J., dissenting).
14
Jeffrey Gettleman, “Execution ends debatable case”, Los Angeles Times, Aug. 31,
2001, available from http://articles.latimes.com/2001/aug/31/news/mn-40577.
15
Even though George McFarland’s lawyer was snoring, the presiding judge took no
action, saying, “The Constitution does not say that the lawyer has to be awake.” John
Makeig, “Asleep on the job: slaying trial boring, lawyer said”, Houston Chronicle,
August 14,1992, p. A35. McFarland’s conviction and death sentence were twice
upheld by the Texas Court of Criminal Appeals. Ex parte McFarland, 163 S.W.3d 743
(Tex. Crim. App. 2005); McFarland v. State, 928 S.W.2d 482 (Tex. Crim. App. 1996).
Carl Johnson was executed even though his lawyer, Joe Frank Cannon, slept during
parts of trial. David Dow, “The state, the death penalty, and Carl Johnson”, 37Boston
College Law Review 691 (1996). Cannon also slept during the trial of Calvin Burdine.
The Texas Court of Criminal Appeals upheld the conviction and sentence, but the
federal court of appeals set aside the conviction, holding, over a bitter dissent, that a
sleeping lawyer is absent from trial and thus a denial of counsel. Burdine v. Johnson,
262 F.3d 336 (5th Cir. 2001) (en banc).
16
See Stephen B. Bright and Sia M. Sanneh, “Fifty years of defiance and resistance
after Gideon v. Wainwright”, 122Yale Law Journal 2150 (2013), available from
www.yalelawjournal.org/essay/fifty-years-of-defiance-and-resistance-after-gideon-
v-wainwright; Kenneth Williams, “Ensuring the capital defendant’s right to
competent counsel: it’s time for some standards!”, 51Wayne Law Review 129 (2005);
Jeffrey L. Kirchmeier, “Drink, drugs, and drowsiness: the constitutional right to
effective assistance of counsel and the Strickland prejudice requirement”, 75 Nebraska
6
There
are
lawyers who never read
their state’s
death penalty
statute,
lawyers
who filed one client’s brief in another client’s death penalty
appeal without changing the names, and lawyers who missed deadlines
that cost their clients review of their cases.
James Fisher
Jr.
spent
26 1/2
years
in
the
custody
of
Oklahoma—most of
it on death row—without ever having a fair and reliable determination
of his guilt. The lawyer assigned to represent him tried his case and 24
others, including another capital murder case, during September 1983.
17
The lawyer made no opening statement or closing argument at either the
guilt or sentencing phase and uttered
only nine words during
the entire
sentencing
phase.
18
On appeal,
the Oklahoma Court of Criminal Appeals
pronounced itself “deeply disturbed by defence counsel’s lack of
participation and advocacy during the sentencing stage,” but it was not
disturbed enough to reverse the conviction or sentence.
19
Nineteen years later, a United States Court of Appeals set aside the
conviction and death
sentence, finding
that
Fisher’s
lawyer was
“grossly
inept,” had “sabotaged” Fisher’s defence by repeatedly reiterating the
state’s version of events, and was disloyal by “exhibiting actual doubt
and hostility toward his client’s case.”
20
The Court of Appeals would not
reach the same result today, because Congress has severely restricted its
power to review state court judgments and grant habeas corpus relief.
21
Law Review 425, 455-462 (1996); Bruce A. Green, “Lethal fiction: the meaning of
‘counsel’ in the Sixth Amendment”, 78Iowa Law Review 433 (1993).
17
Fisher v. Gibson, 282 F.3d 1283, 1293 (10th Cir. 2002).
18
Id. at 1289.
19
Fisher v. State, 739 P.2d 523, 525 (Okla.Crim.App.1987).
20
Id., at 1289, 1300, 1308.
21
The Antiterrorism and Effective Death Penalty Act, adopted in 1996, restricts
federal review of convictions and death sentences imposed in the state courts in
many ways. Among its provisions is one that provides that habeas relief may not be
granted unless the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” 28 U.S.C. § 2254(d)(1) (2006). The Supreme
Court has held that a “state court’s determination that a claim lacks merit precludes
federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011), quoting
7
Today, Fisher would probably be executed. And Robert Holsey’s death
sentence would almost certainly have been set aside if the federal courts
had considered his case before the restrictions were adopted.
James Fisher was assigned another bad lawyer for his retrial in 2005. The
lawyer was drinking heavily, abusing cocaine and neglecting his cases.
22
The lawyer physically threatened Fisher at a pretrial hearing and, as a
result, Fisher refused to attend his own trial.
23
He was again convicted
and sentenced to death, but this time Oklahoma’s highest criminal court
recognized the disgraceful incompetence of his lawyer and set the
conviction aside.
24
Prosecutors agreed to Fisher’s release in July 2010,
provided that he be banished from Oklahoma forever.
25
Juan Balderas was sentenced to death in Houston in March 2014. He was
represented
by
Jerom
e
Godinich,
an
attorney who
m
i
ssed
the statute
of
limitations in two federal habeas corpus cases five years earlier,
depriving his clients of any review of their
cases
by
independent,
life-
tenure federal judges.
26
Both
clients were
executed. Yet, despite such
gross malpractice, the Texas Bar took no action, nor did the Texas Court
of Criminal Appeals. The trial court judges in Houston continued
appointing Godinich to defend poor people accused of crimes, including
in
capital cases. He has been the lawyer in as many as 350 criminal cases
at one time.
Micah
Brown
was
sentenced
to
death
in
M
a
y 2014,
represented
by
Toby
Wilkinson, who filed appellate briefs in two capital cases in 2006 that
contained gibberish, repetitions, and rambling arguments. In one case,
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The Court added in Richter: “If this
standard is difficult to meet, that is because it was meant to be.” Id.
22
Fisher v. State, 206 P.3d 607, 610-11 (Okla. Crim. App. 2009).
23
Id. at 610.
24
Id. at 612-613.
25
Dan Barry, “In the rearview mirror, Oklahoma and death row”, New York Times,
Aug. 10, 2010, available from www.nytimes.com/2010/08/11/us/11land.html
.
26
Lise Olsen, “Lawyers’ late filings can be deadly for inmates”, Houston Chronicle,
March 22, 2009, available from www.chron.com/news/houston-texas/article/Slow-
paperwork-in-death-row-cases-ends-final-1736308.php.
8
Wilkinson clearly lifted passages from one of his previous cases so that
in places the brief discussed the wrong crime and used the wrong names.
In the other case, Wilkinson included portions of letters sent to him by
his client.
27
No matter how
egregiously lawyers handle
a capital case,
Texas judges keep appointing them to represent others.
Lawyers have missed the statute of limitations in at least seven other
cases in Texas. In 2014, the federal courts refused to consider an appeal
in the case of Louis Castro Perez, who was sentenced to death in Texas,
because his lawyer – without telling Perez or other counsel on the case –
did not file a notice of appeal.
28
One judge
dissented, pointing
out that
the
lawyer’s
failure to file a notice of appeal was “an
egregious
breach of
the duties an attorney owes her client” and that Perez had made a strong
showing that he may have been sentenced to death in violation of the
Constitution.
29
In Florida, lawyers assigned to represent condemned
inmates have missed the statute of limitations in 34 cases,
depriving
their
clients of any review of their cases by federal courts.
30
Many people are sentenced to death and executed in the United States
not because they committed the worst crimes, but because they had the
misfortune to be assigned the worst lawyers. Over 100 people sentenced
to death in Houston, Harris County, Texas, have been executed in the
last 40 years. The reason is no secret: Harris County judges appoint
incompetent lawyers to represent people facing the death penalty
31
and,
27
Maro Robbins, “Convict’s odds today may rest on gibberish”, San Antonio Express-
News, Aug. 24, 2006.
28
Perez v. Stephens, 745 F.3d 174 (5th Cir. 2014).
29
Id. at 182, 187, 191-92 (Dennis, J., dissenting).
30
Lugo v. Secretary, 750 F.3d 1198, 1216-18, 1222-26 (11th Cir. 2014) (Martin, J.,
dissenting) (listing the 34 cases).
31
For example, one lawyer repeatedly appointed by judges in Houston had 20 clients
sentenced to death due largely to his failure to “conduct even rudimentary
investigations.” Adam Liptak, “A lawyer known best for losing capital cases”, New
York Times, May 17, 2010, available from
www.nytimes.com/2010/05/18/us/18bar.html?_r=0
. Houston judges repeatedly
appointed Ron Mock, despite his poor performance in capital cases. Sara Rimer and
Raymond Bonner, “Texas lawyer’s death row record a concern”, New York Times,
June 11, 2000, available from www.nytimes.com/2000/06/11/us/texas-lawyer-s-
9
after they are sentenced to death, the condemned are assigned equally
bad lawyers to represent them in post-conviction proceedings. There is
not even the pretence of fairness.
32
United
States
Supreme Court
Justice Ruth
Bader Ginsburg
has said, “I
have yet to see a death case, among the dozens coming to the Supreme
Court on eve of execution petitions, in which the defendant was well
represented at trial.”
33
United States Circuit Judge Boyce Martin has
pointed out that defendants with “decent
lawyers” often avoid death
sentences, while
those
assigned
bad
lawyers
are sentenced to death.
34
It is disturbing how commonly courts and prosecutors are willing to
overlook the gross incompetence of counsel when it occurs, and how
doggedly they try to
defend
the death
sentences
that result. Trial
judges,
who are elected in most states, are
often
the
ones who appointed
the
incompetent
lawyers.
And they appoint
them
in
case after case, as Texas
judges have done with Jerome Godinich and Toby Wilkinson.
Prosecutors have
no incentive to
demand
that their
courtroom
adversaries
be qualified and effective. The poor quality of counsel in
death-row-record-a-concern.html. Sixteen people represented by Mock were
sentenced to death. Andrew Tilghman, “State bar suspends troubled local lawyer,”
Houston Chronicle, Feb. 12, 2005. Another favorite was Joe Frank Cannon, who was
known for trying cases like “greased lightning” and not always being able to stay
awake during trials; 10 people represented by Cannon were sentenced to death. Paul
M. Barrett, “Lawyer’s fast work on death cases raises doubts about the system”, Wall
Street Journal, Sept. 7, 1994.
32
Stephen B. Bright, “Death in Texas: not even the pretense of fairness”, The
Champion 1 (July 1999), available from
http://library.law.yale.edu/sites/default/files/death_in_texas_champion_99.pdf
;
Stephen B. Bright, “Elected judges and the death penalty in Texas: why full habeas
corpus review by independent federal judges is indispensable to protecting
constitutional rights”, 78Texas Law Review 1805 (2000), available from
http://library.law.yale.edu/sites/default/files/electedjudges.pdf.
33
Ruth Bader Ginsburg, “In pursuit of the public good: lawyers who care”, lecture at
the District of Columbia School of Law, April 9, 2001, available from
www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_04-
09-01a.html.
34
Moore v. Parker, 425 F.3d 250, 268 (6th Cir. 2005) (Martin, J., dissenting).
10
capital cases is well known, but very little, if anything is being done
about it in many states.
Racial
discrimination
The death penalty is one of America’s most prominent vestiges of
slavery and racial oppression.
35
It was essential to the institution of
slavery.
Michigan abolished
the death
penalty
in
1846,
and other
northern
states repealed their death statutes or restricted the use of the
death penalty before the Civil War. But that could not be done in the
South—in states that had a captive population. After the Civil War, the
death penalty continued to be imposed on African Americans; some
crimes were punishable by death depending upon the race of the
offender and the victim. Slavery was
perpetuated
through the system of
convict leasing: Black people were arrested on minor charges—such as
loitering, not having proper papers, or theft, and then leased to the
railroads, coal mines and turpentine camps.
36
Today,
the
courts remain the part of American society
least affected
by
the civil rights movement of the mid-20th century. Many courtrooms in
the South today look no different than they did in the 1950s. The judge is
white, the prosecutors are white, the court-appointed lawyers are white,
and, even in communities with substantial African American
populations, the jury is often all white. It is well known and well
documented
that a person of colour is more likely than a white person to
be stopped by police, to be abused during that stop, to be arrested after
the stop, to be denied bail when brought to court, and to receive a severe
35
See Stephen B. Bright, “Discrimination, death and denial: the tolerance of racial
discrimination in the infliction of the death penalty”, 35 Santa Clara Law Review 433
(1995), available from
http://library.law.yale.edu/sites/default/files/discrimination_death.pdf
.
36
Douglas A. Blackmon’s Slavery by Another Name: The Re-Enslavement of Black
Americans from the Civil War to World War II (Doubleday, 2008) describes how slavery
was perpetuated until World War II in Alabama through convict leasing; David M.
Oshinsky’s, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (Free
Press, 1996), describes convict leasing in Mississippi and other southern states.
11
sentence, whether it is jail instead of probation or the death penalty
instead of life imprisonment without the possibility of parole.
37
The two most important decisions made in every death penalty case are
made by prosecutors: whether to seek the death penalty and whether to
resolve the case through a plea bargain for a sentence less than death.
Those decisions are often influenced by race. Some people who are
intellectually disabled or mentally ill reject plea offers with little or no
understanding of what they are doing and are later sentenced to death at
trial.
Prosecutors continue to use their discretionary strikes to prevent or
minimize the participation of members of racial
minorities
on juries. A
Supreme Court decision
purportedly preventing such discrimination by
requiring prosecutors to give race-neutral reasons for their strikes is
widely regarded as a farce. After calling the process a “charade,” one
court described it as follows: “The State may provide the trial court with
a series of pat race-neutral reasons . . . . [W]e wonder if the reasons can
be given without a smile. Surely, new prosecutors are given a manual,
probably entitled, ‘Handy Race-Neutral
Explanations’
or ‘20
Time-Tested
Race-Neutral Explanations.’”
38
And, indeed, just such a “cheat sheet” of
pat race-neutral reasons to justify the strike of any minority jury member
came to light in North Carolina. A one-page handout titled “Batson
Justifications: Articulating Juror Negatives” containing a list of reasons a
prosecutor could give for strikes of minorities was distributed at the
Conference of District Attorneys’ statewide trial advocacy course called
37
See, for example, Amy E. Lerman and Vesla M. Weaver, Arresting Citizenship: The
Democratic Consequences of American Crime Control (University of Chicago Press 2014);
Cynthia E. Jones, “‘Give us free’: addressing racial disparities in bail determinations”,
16New York University Journal of Legislation and Public Policy 919 (2013); Michelle
Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (Free
Press 2010).
38
People v. Randall, 671 N.E.2d 60, 65 (Ill. App. 1996). A judge discusses the reluctance
of judges to find that prosecutors intentionally discriminated and then lied about it
by giving pretextual reasons for their strikes—the finding the Supreme Court
requires to prohibit a strike motivated by race—in Mark W. Bennett, “Unraveling the
Gordian knot of implicit bias in jury selection: the problems of judge-dominated voir
dire, the failed promise of Batson, and proposed solutions”, 4 Harvard Law & Policy
Review 149 (2010).
12
“Top Gun II.”
39
A North Carolina court found that a prosecutor had used
reasons from the list to justify striking African Americans in four capital
cases.
40
The
court also found
that in capital
cases
in
North
Carolina,
“prosecutors strike African Americans at double the rate they strike
other potential jurors.”
41
The probability of such a disparity occurring in
a race-neutral process is less than one in ten trillion.
42
The court found a
history of “resistance” by prosecutors “to permit greater participation on
juries by African Americans.” It continued:
That resistance is exemplified by trainings sponsored by the
North Carolina
Conference of
District
Attorneys
where
prosecutors
learned
not
to
examine their
own prejudices and
present persuasive cases to
a diverse cast of jurors, but to
circumvent the constitutional prohibition against race
discrimination in jury selection.
43
The Supreme Court has held that states must minimize the risk of race
coming into play in the decisions that lead to imposition of the death
penalty.
44
But this raises the
question
of how
much
racial bias is
acceptable in the
process through which
courts condemn people to die.
With the long history of slavery, lynchings, convict leasing,
segregation,
racial
oppression
and now mass incarceration that has a much greater
impact on racial minorities, surely states should eliminate any chance
that racial prejudice might play a role. But there is only one way to do
that: by eliminating the death penalty.
39
State v. Golpin, Cumberland Co., NC, Superior Nos. 97 CRS 42314-15, 98 CRS 34832,
35044, 01 CRS 65079, at 73-74, ¶¶ 68-72 (Dec. 13, 2012), available from
https://www.aclu.org/files/assets/rja_order_12-13-12.pdf
.
40
Id. at 74-77, ¶¶ 72-79.
41
Id. at 112-201, ¶¶ 171-393. The Court found that prosecutors statewide struck 52.8
per cent of eligible black venire members and 25.7 per cent of all other eligible venire
members. Id. at 153, ¶ 254.
42
Id.
43
Id. at 4-5.
44
McCleskey v. Kemp, 481 U.S. 279 (1987); Turner v. Murray, 476 U.S. 28, 37 (1986).
13
Death for people
w
i
th
intellectual limitations and
mental
illnesses
There are other equally troubling questions. How much uncertainty is
acceptable with regard to executing people of low intelligence and
people who are mentally ill? Are juries able to measure precisely the
degree of culpability of an intellectually disabled person? Are they able
to discern whether people are so intellectually disabled (or “mentally
retarded”) that they are exempt from the death penalty,
45
or not quite
intellectually
disabled
enough, so that it is acceptable to execute them? Is
a jury capable of determining whether
profoundly
mentally ill people are
so impaired that their culpability is reduced, so that they should be
spared the death penalty, or so dangerous that they should be executed?
Different people on different juries make those decisions, but it is
impossible for them to make them consistently or to know which ones
are reaching the right conclusions. Intellectual disability cannot be
precisely measured. Psychiatrists and psychologists do not fully
understand mental illness and often disagree with regard to its existence,
severity and influence on behaviour. Capital cases are often influenced
by the passions and prejudices of the moment, which distort the
decision-making process.
As a result, there are many intellectually disabled and mentally ill people
on death rows throughout the country. Among them is Andre Lee
Thomas, sentenced to death in Texas. He suffers from schizophrenia and
psychotic delusions and has gouged out both his eyes.
After engaging in
bizarre
behaviour and attempting suicide, Thomas
stabbed
and killed his wife and two children, acting upon a voice that he
thought was God’s telling him that he needed to kill them using three
different knives so as not to “cross contaminate” their blood and “allow
the demons inside them to live.” He used a different knife on each one
and carved out the children’s hearts and part of his wife’s lung, which he
had mistaken for her heart, and stuffed them into his pockets. He then
45
Atkins v. Virginia, 536 U.S. 304 (2002) (holding that execution of the intellectually
disabled, then called the “mentally retarded,” violates the Eighth Amendment).
14
stabbed himself in the heart which, he thought, would assure the death
of the demons that had inhabited his wife and children.
After being
hospitalized for his chest
wound,
he was
taken
to jail,
where
he gave the police a calm,
complete and coherent account
of his activities
and his
reasons for them. In jail, five days after the killings, Thomas read
in the Bible, “If the right eye offends thee, pluck it out.” Thomas gouged
out his right eye. After being sentenced to death and sent to death row,
he gouged out his left eye and ate it.
46
Scott Panetti, sentenced to death in Texas, suffered from schizophrenia,
fragmented personality, delusions and hallucinations for which he was
hospitalized numerous times before committing the crimes for which he
was sentenced to death. He was unable to overcome his mental illnesses
even though he took medication that could not have been tolerated by a
person not suffering from extreme psychosis. One day, he dressed in
camouflage, drove to the home of his estranged wife’s parents and shot
and killed them in front of his wife and daughter. He was found
competent to stand trial and allowed to represent himself. He wore a
cowboy suit during trial and attempted to subpoena Jesus Christ, John F.
Kennedy, and a number of celebrities, some dead and some alive. His
behaviour at trial was described as bizarre, scary and trance-like,
rendering his trial “a judicial farce.”
47
Since his trial in 1995, the courts have debated whether Mr. Panetti
understands the relationship between his punishment and the crimes he
committed, just as courts often wrestle with whether mentally ill people
are capable of participating in a trial, cooperating with their lawyers and
making decisions in their cases.
Some experts
testify that
they
are
capable,
and other experts
testify
they
are not. The prosecution will
always present an expert who says the person is malingering, even in
cases in which, long before any criminal act, there was bizarre behaviour,
paranoia,
delusions,
treatment with
psychotropic
drugs,
hospitalizations,
46
Marc Bookman, “How crazy is too crazy to be executed?”, Mother Jones, February
12, 2013, available from www.motherjones.com/politics/2013/02/andre-thomas-
death-penalty-mental-illness-texas; Ex Parte Andre Lee Thomas, 2009 Westlaw 693606
(Tex. Crim. App. March 18, 2009) (Cochran, J., concurring).
47
Panetti v. Quarterman, 551 U.S. 930, 936-37 (2007).
15
electroshock therapy, suicide attempts or self-mutilation. Judges, if they
are free from political influences in deciding the issue, try to
comprehend the incomprehensible and parse legal concepts when
dealing with manifestations of mental disorders. But at best, their rulings
are “a hazardous guess.”
48
The more fundamental question is why people like Andre Lee Thomas
and Scott Panetti, who are undoubtedly profoundly mentally ill, are
subject to the death penalty. Of course they committed horrendous
crimes, took innocent lives that left others suffering and scarred for life,
and must be isolated to protect society. But through no fault of their
own, they are tormented souls suffering from devastating afflictions that
leave them unable to think and reason like people who are not so
afflicted. That is greater punishment that any court can impose.
The intellectually disabled and mentally ill are at an enormous
disadvantage
in the criminal courts. Some have no family support, and
others have families afflicted with the same limitations or disorders that
they have. Their court-appointed lawyers may
know nothing about
their
disabilities,
have
no idea
how
to interact
with
them, and know nothing
about how to conduct an investigation of the disability or which experts
to consult. In many cases, they do not have adequate resources for expert
consultation or testing.
The Alabama lawyers who represented Holly Wood, who was convicted
of the murder of his ex-girlfriend, did not present his limited intellectual
functioning as a reason he should be spared the death penalty. It would
not have been difficult. Special education teachers who had Mr. Wood in
their classes at the local school would have testified that his IQ was
probably “low to mid 60s,” that Wood was “educable mentally retarded
or trainable mentally retarded,”
49
and that, even at the time of his trial,
he could read only at the third-grade level and could “not use
48
Ford v. Wainwright, 477 U.S. 399, 412 (1986), quoting Solesbee v. Balkcom, 339 U.S. 9,
23 (1950) (Frankfurter, J., dissenting).
49
Wood v. Allen, 542 F.3d 1281, 1324 (11th Cir. 2008) (Barkett, J., dissenting) (quoting
testimony of teachers), denial of relief affirmed, 558 U.S. 290 (2010).
16
abstraction skills much beyond the low average range of intellect.”
50
Alabama executed Mr. Wood, a black man, in 2010.
Conclusion
The United States promises equal justice for all in its Constitution and its
pledge of allegiance and above the entrance to its Supreme Court. Yet
poverty, race and mental
impairment influence
the selection of
those who
will be
subject
to what Justice Arthur Goldberg called the “greatest
conceivable degradation to the dignity of the human personality.”
51
The
use of the death penalty is not just degrading to the person who is tied
down and put down. It is also degrading to the society that carries it out.
It coarsens the society. It shows a lack of reverence for life. It tells
children that the society solves its problems through violence. And, as
Dr. Martin Luther King, Jr., said, capital punishment is society’s final
statement that it will not forgive.
Equal justice has lost out in the courts to other interests. Finality—not
justice—has become the ultimate goal of the American legal system.
Processing cases in as little time as possible—not competent
representation, equal justice or protection of the most vulnerable—is the
concern of most courts, even in cases where life and death are at stake.
Technicalities and procedural rules made up by the Supreme Court and
Congress now prevent enforcement of the Bill of Rights in most capital
cases, particularly those with bad lawyers.
However, there is growing recognition that this is not moral, just or
right. Former
President
Jimmy Carter, who as Governor of Georgia
signed into law in March 1973 Georgia’s death penalty statute, called on
November 12, 2013 for an end to capital punishment, because it is being
imposed on the poor, members of racial minorities and people with
diminished
mental capacity.
52
Supreme Court Justice John Paul Stevens,
50
Id. (Barkett, J., dissenting) (quoting the testimony of a psychologist of evaluated
Wood).
51
Arthur Goldberg, letter to the editor, Boston Globe, Aug. 16, 1976.
52
“Remarks by former U.S. President Jimmy Carter at the National Symposium on
the Modern Death Penalty in America”, Nov. 12, 2013, available from
www.cartercenter.org/news/editorials_speeches/death-penalty-speech-
111213.html; American Bar Association, National Symposium on the Modern Death
17
who voted to uphold the death penalty in 1976, observed before leaving
the Court that the procedural protections for those facing death have
been reduced, that there remains a strong probability that race influences
who is sentenced to death, and that the death penalty carries with it a
“real risk of error” with irrevocable consequences. He concluded that
“the imposition of the death penalty represents ‘the pointless and
needless extinction of life with only marginal contributions to any
discernible social or public purposes.’”
53
The death penalty has recently been abandoned by Connecticut, Illinois,
Maryland, New Jersey, New Mexico and New York
, and governors have
declared
moratoriums on
the
death penalty in
Colorado, Oregon and
Washington.
54
The number of death sentences imposed by courts has
declined from over 300 people per year in the mid 1990s to 80 or less in
2011, 2012 and 2013.
55
It is becoming increasingly apparent that the
death penalty is being abandoned by most states, just as it has been
abandoned by most nations. But it is equally apparent that poverty,
race, intellectual disability and mental illness will influence who is
condemned to die until the United States joins the rest of the civilized
Penalty, available from
www.americanbar.org/groups/individual_rights/projects/death_penalty_due_proc
ess_review_project/national_syposium_death_penalty_carter_center.html (including
videos of presentations by President Carter and others).
53
Baze v. Rees, 553 U.S. 35, 83 (2008) (Stevens, J., concurring), quoting Justice White’s
concurring opinion in Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J.,
concurring).
54
John W. Hickenlooper, Governor, State of Colorado, “Executive order: death
sentence reprieve”, May 22, 2013, available from
www.deathpenaltyinfo.org/documents/COexecutiveorder.pdf
; “Gov. John
Kitzhaber of Oregon declares a moratorium on all executions”, available from
www.deathpenaltyinfo.org/gov-john-kitzhaber-oregon-declares-moratorium-all-
executions; Governor Jay Inslee of Washington, “Governor Inslee’s remarks
announcing a capital punishment moratorium”, available from
www.deathpenaltyinfo.org/documents/InsleeMoratoriumRemarks.pdf
.
55
DEATH PENALTY INFO. CTR., THE DEATH PENALTY IN 2013: YEAR END REPORT 1 (2013),
available at http://deathpenaltyinfo.org/documents/YearEnd2013.pdf. The most
death sentences were imposed 1994 and 1996, when 315 people were sentenced to
death. Id.
18
world in making permanent, absolute, and unequivocal the injunction:
thou shalt not kill.
