Today the Sixth Circuit Court ruled against E.J. Harbison's challenge to Tennessee's lethal injection protocol holding that the U.S. Supreme Court's Baze decision, which upheld the constitutionality of Kentucky's lethal injection protocol, applies to Tennessee as well. Of the three judge panel making the decision, two affirmed the decision and the third dissented. The majority held that Tennessee's protocol is substantially similar to Kentucky's and therefore does not violate the Eighth Amendment.

However, in his dissent, Judge Clay articulates why this ruling is problematic.

Because the district court (which ruled in favor of Harbison) issued its
opinion before the Baze decision, the district court never had the
opportunity to receive and consider evidence in light of the Baze standard,
and it never rendered a judgement as to whether Tennessee's protocol complied with Baze. By failing to provide the district court with an opportunity to consider Tennessee's protocol in light of Baze, the majority effectively usurps the district court's role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky's and Tennessee's lethal injection protocols.

What we know is that when Governor Bredesen asked for the Department of Corrections to revise its protocols in 2007, Corrections Commissioner George Little established a committee to review the protocol and make recommendations. The Protocol Committee made significant recommendations for changing the protocol, including eliminating the controversial three drug cocktail and moving to a one drug protocol. The Committee also found that the risk of the first drug, sodium thiopental's failing to fully render the inmate unconscious resulting in the inmate's enduring the excruciating effects of the following drugs, was more significant than previously thought, particularly since there is a lack of a check for consciousness before the administration of the next drugs. However, none of the recommendations made by the Protocol Committee to address these problems were accepted by Commissioner Little.

The fact remains that regardless of the protocols or methods of execution used in Tennessee, the state's death penalty system remains broken, a reality confirmed by the legislatively created Tennessee Committee to Study the Administration of the Death Penalty. The Committee determined that the death penalty in Tennessee is unfairly applied, more costly than life without parole, and risks the execution of an innocent person. The controversy over Tennessee’s lethal injection protocol represents merely the tip of the iceberg when it comes to the problems with the death penalty system.

Today the US Supreme Court revealed that there will be NO DECISION on the Troy Davis case until the court reconvenes in September. Supporters of Davis have been rallying for the Court to take up his case in order that evidence of his innocence finally be heard.

Below is an article about about today's press conference in Savannah, Georgia, where thousands of petitions were delivered to District Attorney Larry Chisholm.


Monday, Jun. 29, 2009
60,000 signatures supporting Troy Davis delivered
By RUSS BYNUM - Associated Press Writer

SAVANNAH, Ga. -- Supporters of death row inmate Troy Anthony Davis delivered petitions with 60,000 signatures Monday to the office of Chatham County's district attorney, who's being pressured to consider a new trial for Davis based on questions raised in his appeals.

About 25 people from groups such as the NAACP and Amnesty International handed a stack of petitions more than two feet high to spokeswoman for District Attorney Larry Chisolm at a news conference outside the Chatham County courthouse.

"We have sufficient evidence, we believe, to show that Troy Anthony Davis is innocent," said Prince Jackson, president of the NAACP's Savannah branch. "We are asking that he be given a chance. After all, his life is at stake."

Davis has spent nearly 18 years on death row for the 1989 slaying of Savannah police officer Mark MacPhail. His attorneys say he deserves a new trial after several witnesses at his trial recanted their testimony.

Though the U.S. Supreme Court has yet to rule on whether it will hear Davis' latest appeal, his supporters are already working to put pressure on Chisolm, who was elected Chatham County's first black district attorney last year with much of his support coming from black voters in Savannah. Davis also is black.

A decision from the high court was expected by Tuesday, as justices are taking off on their summer break. If the court rejects Davis' case, it would clear the way for Georgia to set a new execution date for Davis, who has been scheduled to die by lethal injections three times since 2007 but was spared when courts intervened.

Martina Correia, Davis' sister, said her brother was in decent spirits and "praying for the best" when she visited him over the weekend. Correia said she hoped Chisolm would give weight to the petition signatures, 11,000 of which Davis' supporters said came from Chatham County.

"He's a fresh pair of eyes taking a look at this case," Correia said.

Chisolm's predecessor, Spencer Lawton, was district attorney when Davis was convicted in 1991. Prosecutors under Lawton, who retired last year, rejected Davis' claims of innocence and labeled statements by recanting witnesses as "suspect."

Chisolm's spokeswoman, Lydia Sermons, said Monday the district attorney had no comment. She has previously said that Chisolm wasn't sure he had the legal authority to halt Davis' execution, and that he would not comment until after the Supreme Court ruled.

MacPhail was slain 20 years ago while working off-duty as a security guard at a bus station. He had rushed to help a homeless man who had been pistol-whipped at a nearby parking lot, and was shot twice when he approached Davis and two other men. Witnesses identified Davis as the shooter at his 1991 trial.

But Davis' lawyers say new evidence proves their client was a victim of mistaken identity. They say three people who did not testify at Davis' trial have said another man confessed to the killing.

The case has attracted worldwide attention, with calls to stop Davis' execution from former President Jimmy Carter, Pope Benedict XVI and Nobel Peace Prize-winner Desmond Tutu. Rallies have been held as far away as Paris.

On Thursday, June 18th, the U.S. Supreme Court ruled that those convicted of a crime do not have the right to obtain DNA testing on evidence that could prove their innocence. The 5-4 decision involved the case of William Osborne, an Alaskan man convicted of assault, kidnapping, and sexual assault in 1993. Though the victim did identify Osborne as one of her two attackers, court documents also reveal that her identification was questionable. The victim's eyesight was poor and the attack occurred at night when visibility was limited.

In 2001, Osborne sought DNA testing that could prove his innocence for the assault. He filed suit in federal court because he contended that the state of Alaska had no provision for post-conviction DNA testing. Although the Supreme Court’s 5-4 decision did not completely deny that there is a constitutional right to DNA testing, it found that Osborne’s constitutional rights were not violated. Chief Justice John Roberts wrote in his majority opinion that Osborne should have exhausted his avenues for appeal in the Alaska courts. Roberts added that defendants have no freestanding right to DNA testing under the Constitution's Due Process Clause.

According to the Innocence Project, an organization that assists prisoners who might be proven innocent through DNA testing and who represents Osborn, to date there have been 240 people nationwide who have been exonerated through DNA testing. In all, 47 states and the District of Columbia have passed statutes granting access to post-conviction DNA testing, and a federal law granting access in federal cases was passed in 2004. Thursday's ruling will not affect those laws. The three states without statutes granting post-conviction access to DNA testing are Alaska, Massachusetts and Oklahoma

Tennessee currently allows a defendant to obtain DNA testing of biological evidence during pre-trial discovery or during post-conviction proceedings. Strict pleading requirements, however, have the potential to preclude inmates from successfully obtaining post-conviction DNA testing. For example, the court will summarily dismiss the petition seeking post-conviction DNA testing if the petitioner failed to allege or satisfy a pleading requirement. Most significantly, the court is never required to hold a hearing on the merits of an inmate’s petition for DNA testing (The Tennessee Death Penalty Assessment Report, American Bar Association, March 2007).

Read more about this case.

Yesterday a new study entitled, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” was published in Northwestern University School of Law’s Journal of Criminal Law and Criminology. The study is authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder, and Traci Lacock, an attorney and Sociology graduate student in Boulder. The Death Penalty Information Center (DPIC) has a copy of the study on its web site.

The study’s findings include the following:

• Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide
• Eighty-seven percent of the expert criminologists believe that abolition of the death penalty would not have any significant effect on murder rates.
• Seventy-five percent of the respondents agree that “debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems.”

The study surveyed the most pre-eminent criminologists in the country, including: Fellows in the American Society of Criminology; winners of the American Society of Criminology’s prestigious Southerland Award; and recent presidents of the American Society of Criminology. The American Society of Criminology is the top professional organization of criminologists in the world. Respondents were not asked for their personal opinion about the wisdom of the death penalty, but instead, were asked to answer the questions only on the basis of their understandings of the empirical research.

The study concluded: “Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth … The consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.”

The murder rates across the nation provide further evidence that the death penalty is not a deterrent to violent crime. The South carries out 80% of the executions in this country while continuing to have the highest murder rate of the nation's four regions. The Northeast, which has only had 4 executions since the reinstatement of the death penalty, has the lowest murder rate.

What we do know is that states continue to spend millions of dollars that they don't have to maintain death penalty systems which do not deter crime instead of spending those dollars on efforts that actually can prevent violence--such as mental health care, drug treatment, education, and resources for law enforcement. Rather than pouring our money down the black hole of the death penalty, let's get proactive about how we address the root causes of violent crime and actually prevent some of these horrible tragedies from happening at all. One way or the other, we, as a society, must be willing to spend the resources to provide hope and opportunity for those who often have neither. We can either provide those resources when they can still make a difference or after a horrible crime has been committed and it is too late.

The evidence is in. The choice is ours.

On June 5, Connecticut's Governor, Jodi Rell, made good on her promise to veto legislation that would have abolished the death penalty in that state. The Governor had expressed her opposition to the measure all along and issued her promised veto last week. Supporters in the General Assembly said they did not have the two-thirds majority of votes to override the veto. The bill, repealing Connecticut's death penalty and replacing it with life in prison, passed 19-17 in the Senate and 90-56 in the House last month. Connecticut has 10 death row inmates and has only executed one inmate since the U.S. Supreme Court allowed for the reinstatement of capital punishment in 1976.

Despite having a brand new Executive Director and a Governor who maintained her steadfast support of the death penalty, the Connecticut Network to Abolish the Death Penalty (CNADP) rallied the people of Connecticut from all across the state to speak out for repeal. The network organized murder victim family members to speak out about how the death penalty fails to meet the needs of victims. Law enforcement held their own press conference saying it was not a worthwhile law enforcement tool and a waste of resources in these hard economic times. Attorneys reminded the lawmakers that only a month had passed since a wrongful conviction for murder was exposed after more than a decade. The national NAACP teamed up with the state group to highlight Connecticut's failure to address its troubled history with race and the death penalty. And, three times as many people contacted the Governor in support of the bill compared to those who opposed.

In just a few weeks, the citizens of Connecticut almost abolished the death penalty, demonstrating that when enough people speak and act, lawmakers listen. Though abolition didn't happen this year, Connecticut is positioned to make abolition a reality in the very near future. Congratulation to the CNADP and the citizens of Connecticut for taking a stand to end this failed system.

Yesterday evening, June 2, nearly 120 people gathered in the Belcourt's 1925 Hall to hear the musical styling's of parent-child duos, Rodney Crowell and Chelsea Crowell, and Ranger Doug (from Rider's in the Sky) and James Green. The musicians, in collaboration with TCASK board member, Lauren Brown, developed a two-hour "in-the-round" style performance that touched the hearts of cowboy-western music enthusiasts and caressed the ears of lovers of poetic lyrics.

Both families spoke out against the death penalty and graciously gave of their time and talents to share with the crowd a bit about why they oppose this form of punishment. Rodney Crowell paused before the final song to say "in my years I have seen that forgiveness and love are a lot stronger than the vengeance that is sought as retributive justice."

Singer-songwriters Beth Nielsen Chapman and Gary Nicholson emerged from the audience to join the group on stage, each sharing a song that spoke to them about the power of forgiveness and love. Also in the audience was 1984 Figure Skating Olympic Gold Medalist, Scott Hamilton.

All in all it was a great night. Many thanks to the musicians who shared their gifts with us, the Belcourt Theater for graciously allowing us to use their space and again, TCASK board member, Lauren Brown for her work to organize this "cool" event!

Myth: The death penalty deters crime.

Fact: Studies have repeatedly shown that the death penalty does not deter violent crime any more than other punishments such as life imprisonment. Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide (Radelet and Lacock, 2009).

Myth: Race has nothing to do with capital punishment.

Fact: The death penalty is used primarily to punish those who kill Euro-Americans. Whites make up roughly half of murder victims nationally, but over 80% of death row inmates are there for the murder of a white victim. A defendant accused of murdering a white victim is more than 3 times as likely to face the death penalty as a defendant accused of the murder of a person of color (David Baldus).

Myth: The death penalty doesn’t make mistakes.

Fact: During the modern execution era (1973-present) over 130 people have been exonerated from death row after evidence of their innocence came to light. This is roughly 1 exoneration for every 9 executions.

Additionally, strong evidence has been unearthed demonstrating that innocent men may have been executed in several states (“Innocent and Executed,” NCADP).

Myth: Public opinion supports the death penalty.

Fact: The May 2006 Gallup poll found support for the death penalty was 65% (down from 80% in 1994).

The same poll found that, when respondents were given the choice of life without parole as an alternative sentencing option, more chose life without parole (48%) than the death penalty (47%). A poll conducted by the American Bar Association in Tennessee in 2007 shows 66% of Tennesseans support a moratorium on the death penalty in order for the system’s problems to be addressed.

Myth: Executions are cheaper than life imprisonment.

Fact: It costs far more to operate a system that utilizes the death penalty rather than life without parole as its maximum punishment. A study in New Jersey found that $253 million had been spent on the capital punishment system above and beyond the costs of life without parole from 1983 through 2005. The majority of the costs of the death penalty system occur at the initial trial, which must be separated into two stages and requires far more hours of work from lawyers, expert witnesses, and special investigators.

Myth: The Bible supports the death penalty.

Fact: Although isolated passages of the Bible have been invoked in support of the death penalty, most religious groups in the United States regard executions as immoral. Literal interpretations of selected passages from the Bible used to defend capital punishment corrupt the compassionate spirit of Judaism and Christianity -- a spirit which urges humane and effective ways of dealing with crime and violence.

If we take the Bible literally, we are also obligated to impose the death penalty in cases of adultery (Lev. 20:10), blasphemy (Lev. 24:15), working on the Sabbath (Ex. 35:2), refusing to obey a priest or judge (Deut. 17:12), disobedient children (Deut. 21:18), fornication (Deut. 22:23), and 16 other offenses.

Myth: The death penalty is fair.

Fact: Only one out of every 100 convicted murderers is sentenced to death. Those perpetrators sentenced to death are not those whose crimes were the “worst of the worse.” Instead, they are disproportionately the poor, people of color, those with mental illness, and those whose victims are white. More than 90% of those on death row were financially unable to hire attorneys to represent them at trial.

"By reserving the penalty of death for black defendants . . . or for those convicted of killing white persons, we perpetuate the ugly legacy of slavery - teaching our children that some lives are inherently less precious than others."-Rev. Joseph E. Lowery, Former President, Southern Christian Leadership Conference

Since 1977, the overwhelming majority of death row defendants (80%) have been executed for killing white victims, although whites make up only 50% percent of all homicide victims. In a 1990 report, the non-partisan U.S. General Accounting Office found "a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty."

A North Carolina study, based on data from 502 murders occurring between 1993 and 1997 found that defendants whose victims are white are 3.5 times more likely to be sentenced to death than those with non-white victims.

Underlying the statistical evidence is the differential treatment of African-Americans at every turn:

• All of Tennessee’s District Attorneys General are white. These are the people who decide whether or not to seek the death penalty.
• African Americans make up 43% of Tennessee’s death row population but only 17% of its total population.
• African Americans make up 35% of those executed in the U.S. since 1976.

Race in Tennessee Death Penalty Cases

E.J. Harbison, a poor, African- American man with no prior criminal record, was sentenced to death in 1983 for his role in the murder of Edith Russell, an elderly, white woman. Although the state claimed the murder was premeditated, Harbison did not carry a weapon; Russell was killed with her own vase during the botched burglary.

Erskine Johnson was convicted by an all-white jury in Memphis, a city with a majority black population. Although half a dozen black witnesses testified that Johnson was in St. Louis at the time of the crime, the jury relied on largely circumstantial evidence and coerced testimony from supposed co-defendants and sentenced him to death.

"Over the past thirty years, the number of people with mental
illness and other mental disabilities on death row has steadily increased." -Mental Health America

International law clearly outlaws the execution of persons with mental illness. Virtually every country in the world prohibits the execution of those who are considered "insane." However, our legal understanding of mental illness has not kept pace with our medical knowledge. Thus, to be deemed "mentally competent" to face execution, a person is only required to know that he/she is going to be executed and why.

In Ford v Wainwright (1986), the U.S. Supreme Court determined that "inflicting the death penalty upon a prisoner who is insane" violates the U.S. Constitution. However, it is estimated that 5-10% of death row inmates suffer from serious mental illness (Mental Health America's "Position Statement 54: Death Penalty and People with Mental Illness").

At least 100 of those executed in the U.S.A. since 1977 suffered from mental illness, representing about 10% of those put to death nationwide during this period. (Amnesty International's Report "The Execution of Mentally Ill Offenders," 2006).

TENNESSEE

Robert Glen Coe, the first person Tennessee executed in the modern era, suffered from serious mental illness. At his trial, some experts testified that he was psychotic and schizophrenic. In 1975, Coe was found incompetent to stand trial in Florida on another charge. Coe was executed on April 19, 2000.

In 2008 Richard Taylor had his conviction and death sentence reversed by an appeals court and was sentenced to life imprisonment. Taylor, twice forced to stand trial despite his serious mental illness, agreed to a sentence of life without parole in exchange for pleading guilty to the 1981 murder of a Tennessee correctional officer— a crime committed only after prison officials stopped giving Taylor his anti-psychotic medication.

In 2001, Gregory Thompson was so mentally incompetent that he was appointed a conservator to make decisions about what medications he should take. He suffers from delusional thought processes, psychosis, auditory and visual hallucinations, and is suicidal. The state now claims that Thompson is sane enough to be executed.

Abu-Ali Abdur'Rahman has a history of serious mental problems. He was physically tortured by his father as a young child. As part of his post- conviction appeals, six mental health experts have diagnosed Abu-Ali Abdur'Rahman as suffering from post- traumatic stress disorder and/or borderline personality disorder. He has been on death row for over 20 years.

POSITIONS OF NATIONAL MENTAL HEALTH ORGANIZATIONS

The National Alliance on Mental Illness (NAMI) believes the death penalty is never appropriate for a defendant suffering from a serious brain disorder or for those suffering with serious mental illness.

Mental Health America believes that mental illness can influence an individual's mental state at the time he or she commits a crime, can affect how "voluntary" and reliable an individual's statements might be, can compromise a person's competence to stand trial and to waive his or her rights, and may have an effect upon a person's knowledge of the criminal justice system.

The American Psychological Association (APA) calls upon each jurisdiction in the United States that imposes capital punishment not to carry out the death penalty until the jurisdiction implements policies and procedures that can be shown through psychological and other social science research to ameliorate the deficiencies identified in its 2001 resolution on the death penalty.