Capital Punishment in the United States Explained

In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Missouri executes Cecil Clayton

Cecil Clayton
Missouri death row inmate Cecil Clayton has been executed.

Dept. of Public Safety spokesman Mike O'Connell says that Clayton's lethal injection began at 9:13 p.m., and that he was pronounced dead at 9:21 p.m.

The U.S. Supreme Court denied Cecil Clayton's request for a stay of execution.

However, in a brief statement, Justices Ruth Bader Ginsburg, Steven Breyer, Sonya Sotomayor, and Elena Kagan said they would have granted the application for stay of execution.

Gov. Jay Nixon had denied Clayton's request for clemency.

Elizabeth Unger Carlyle, one of the attorneys who represented Clayton, issued the following statement:

"Cecil Clayton had – literally – a hole in his head. Executing him without a hearing to determine his competency violated the Constitution, Missouri law, and basic human dignity. Mr. Clayton was not a 'criminal' before the sawmill accident that lodged part of his skull into his brain and required 20 percent of his frontal lobe to be removed. He was happily married, raising a family and working hard at his logging business. Medical experts who examined 74-year-old Mr. Clayton said he couldn't care for himself, tried but couldn't follow simple instructions, and was intellectually disabled with an IQ of 71. He suffered from severe mental illness and dementia related to his age and multiple brain injuries. The world will not be a safer place because Mr. Clayton has been executed."

Attorney General Chris Koster also released a brief statement to the contrary: "As one who has carried a badge most of my adult life, I share the outrage of every Missourian at the murder of law enforcement officer, Deputy Christopher Castetter. Cecil Clayton tonight has paid the ultimate price for his terrible crime."

Shortly before Clayton's execution, Gov. Jay Nixon also released the following statement:

"My office has completed its review of the petition for clemency from convicted murder Cecil L. Clayton, and after due consideration of the petition and of the facts in this case, I am denying his petition.
"Cecil Clayton fatally shot Barry County Deputy Sheriff Christopher Castetter as Deputy Castetter sat in his patrol car. At the time of the shooting, Deputy Castetter was responding to a trespassing report that involved Clayton. Deputy Castetter was found in his vehicle with the engine running and his service weapon still snapped in its holster.
"In addition to considering the nature of the crime, I have given extensive consideration to Clayton's competency. Clayton was found competent to stand trial in 1997 for the murder of Deputy Castetter and again in 2006 to bring his federal habeas action. In 2014, at the request of the Director of the Department of Corrections, Clayton was comprehensively examined by a certified forensic examiner with the Department of Mental Health and determined to be competent to be executed. I accept that finding.
"This crime was brutal and there exists no question of Clayton's guilt. My denial of clemency upholds the court's decision to impose a sentence of death.
"I ask that the people of Missouri remember Deputy Sheriff Christopher Castetter and keep his family in their thoughts and prayers."

[The following paragraphs were published by The Guardian before Mr. Clayton's execution.] Clayton suffered a brain injury in 1972 at a sawmill, in which a wooden projectile pierced Clayton's skull. Surgeons removed a small portion of his brain; his attorneys say that included one-fifth of the frontal lobe and that, as a result, his impulse control and judgment were severely impaired.

Clayton was convicted of fatally shooting Barry County sheriff's deputy Chris Castetter in 1996. His attorneys argued that his deteriorating mental health and low IQ made him ineligible for execution under both state and federal laws.

In a 4-3 ruling on Saturday, the Missouri Supreme Court denied Clayton's request to halt his execution. Judge Paul Wilson, writing the majority opinion, stated that Clayton was competent to be executed. Judge Laura Denvir Stith wrote a dissenting opinion, however, stating that he should be entitled to a hearing on both his competence and his claim of being intellectually disabled.

The scan of Cecil Clayton's brain succinctly tells the story. In the front left corner of his skull, where his frontal lobe would normally be found, there is a gaping black hole about the size of a fist.

In 1972, Clayton was working on a log in a lumberyard in Purdy, Missouri, when a piece of wood broke off the saw mill and struck him in the head. It pierced his skull, sending shards of bone deep into his brain, and in the process of saving his life surgeons were forced to remove 1/5 of his frontal lobe - a vital area that controls judgment, inhibition and impulsive behavior.

The accident had a devastating impact. A man who before it occurred had been a teetotal devoted husband and father of five, who preached and sang the gospel in his own ministry, developed severe memory loss and despair, sank into alcoholism and split from his wife, had hallucinations and displayed bouts of violent rage.

24 years after the accident he shot and killed a Purdy police officer, Christopher Castetter. When he was arrested, Clayton displayed signs of confusion, saying of his victim that "he shouldn't have smarted off to me", yet adding "but I don't know because I wasn't out there."

Under the constitution of the United States it is forbidden to execute anyone who is insane and incapable of understanding the fact of his impending death and the reason for it. Under separate but equally clear rulings, it is also prohibited to execute an intellectually disabled prisoner.

Clayton's brain scan shows the gaping hole in his front lobe
The evidence of Clayton's mental impairments - and hence his constitutional right to protection - is considerable, dating back many years. In addition to that image of his brain scan, psychological evaluations stretching back to 1978 have chronicled the after-effects of his severe brain trauma.

He has the reading ability of a 9-year-old, has visual and auditory hallucinations in which he is convinced that he is accompanied by a man and a woman wherever he goes, is incapable of simple tasks such as ordering food from the prison commissary, and is under the delusion that he will never be executed because God will intervene and free him so that he can return to his preaching and gospel singing.

3 forensic psychologists have spent time with Clayton in multiple visits spanning 2005 to this year, and have unanimously and consistently concluded that he is entitled to constitutional protections because of his mental incompetence. One of the psychologists, Daniel Foster, has written: "He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of him ... he still does not comprehend, appreciate nor understand its approaching date for him".

6 times, Clayton's lawyers have petitioned the Missouri supreme court, the highest judicial panel in the state, calling for a full review of his mental condition to see whether he is entitled to 8th amendment protections. Each time they have cited the expert evidence of his mental dysfunction, but each time the court has rebuffed the request saying that the prisoner had not met the level of impairment necessary to justify a hearing.

In effect, the inmate has found himself trapped in a Catch-22 where he has been unable to convince the Missouri justices that he is worthy of their attention. His final plea to the US supreme court, on which his fate now hangs, says: "The Missouri supreme court essentially required Mr Clayton to prove his incompetency in order to obtain a hearing on his incompetency."

In a dissenting opinion from the Missouri court, Laura Denvir Stith said: "The denial of such a hearing deprives Mr Clayton of a fair opportunity to show that the constitution prohibits his execution."

Missouri has become one of America's most aggressive death penalty states. Since November 2013 it has been executing prisoners at the rate of almost 1 a month, a rate rivaled only by Texas.

Clayton becomes the 2nd condemned inmate to be put to death this year in Missouri and the 82nd overall since the state reumed capital punishment in 1989. Only Texas (522), Oklahoma (112), Virginia (110), and Florida (90 have executed more inmates since the death penalty was re-legalized in the US on July 2, 1976.

Clayton becomes the 10th condemned inmate to be put to death this year in the USA and the 1404th overall since the nation resumed executions on January 17, 1977.

Sources: AP, The Guardian, Rick Halperin, March 18, 2015

Missouri executes Cecil Clayton, state's oldest death-row inmate

Inmate had appealed on grounds that he was diagnosed as severely mentally impaired

The state of Missouri executed its oldest death row inmate on Tuesday - a man who was mentally impaired from a work accident that removed a large portion of his brain - after his final appeals failed at the US supreme court.

The execution of Cecil Clayton, 74, was delayed for several hours, while the supreme court weighed appeals from Clayton's defense attorneys.

Lawyers acting for Clayton, 74, had called on the nation's highest court to intervene and stay the execution. In a petition to the nine justices, they argued that it would be unconstitutional to execute the prisoner because under a series of rulings in recent years the supreme court has banned judicial killings of insane and intellectually disabled people.

Clayton lost about a fifth of his frontal lobe in 1972 when a splinter from a log he was working on in a sawmill in Purdy, Missouri, dislodged and slammed into his skull. The damage has had a long-term impact on his character and behavior, with a succession of medical experts chronicling problems ranging from uncontrolled rage to hallucinations and depression.

The frontal lobe has an important function in controlling impulse and emotion.

In 1996 Clayton murdered a police officer, Christopher Castetter, who was called to a house where Clayton had broken in. There was no dispute about his guilt, though there was intense debate about whether he should have been protected from the gurney.

Elizabeth Unger Carlyle, attorney for Cecil Clayton, said of the supreme court decision:

Cecil Clayton had - literally - a hole in his head. Executing him without a hearing to determine his competency violated the constitution, Missouri law and basic human dignity.

Mr Clayton was not a 'criminal before the sawmill accident that lodged part of his skull into his brain and required 20% of his frontal lobe to be removed. He was happily married, raising a family and working hard at his logging business.

Medical experts who examined 74-year-old Mr. Clayton said he couldn't care for himself, tried but couldn't follow simple instructions, and was intellectually disabled with an IQ of 71. He suffered from severe mental illness and dementia related to his age and multiple brain injuries. The world will not be a safer place because Mr Clayton has been executed.

In 2002 the US supreme court ruled in Atkins v Virginia that it was unconstitutional to put to death an intellectually disabled person (previously known as mental retardation) under the 8th amendment prohibition of cruel and unusual punishment. Last year that protection was strengthened in Hall v Florida which obligated states to consider several indicators of intellectual disability, not just an IQ cut-off score.

Source: The Guardian, March 18, 2015

The execution of Cecil Clayton and the biology of blame

In 1974, 2 months after having a portion of his brain removed due to an accident at the sawmill where worked, Cecil Clayton checked himself into a mental hospital, frightened by his suddenly uncontrollable temper.

Previously, Clayton had been an intelligent, guitar-playing family man, relatives said. He abstained from alcohol, worked part time as a pastor and paid weekly visits to a local nursing home.

But after the accident, which necessitated the removal of 20 % of his frontal lobe, everything changed.

"He broke up with his wife, began drinking alcohol and became impatient, unable to work and more prone to violent outbursts," Clayton's brother Marvin testified at trial.

In 1979, he visited William Clary, a doctor who examined him for extreme anxiety, depression and paranoia.

"I can't get a hold of myself, I'm all tore up," Clayton told the doctor, according to court filings from his attorneys.

Clayton's spiraling mental state and increasingly violent behavior came to a head in 1996, when he shot and killed Christopher Castetter, a sheriff's deputy responding to a domestic disturbance between Clayton and his girlfriend. Clayton was eventually convicted of murder, and executed via lethal injection in Bonne Terre, Mo., Tuesday night.

His death brought to an end to nearly 2 decades of litigation during which it seemed that Clayton's brain, rather than the man himself, was on trial.

"The effects of his 1972 accident left him blameless for the 1996 murder," read a petition filed by his defense, asking for a stay of execution from the U.S. Supreme Court. It was accompanied by an image of his brain scan, which shows a sizeable chunk of his brain missing from the right-hand side.

Clayton's attorney, Elizabeth Unger Carlyle, reiterated the defense's stance in a statement released shortly after he was executed: "Mr. Clayton was not a 'criminal' before the sawmill accident that lodged part of his skull into his brain and required 20 % of his frontal lobe to be removed," she said.

In other words, Cecil Clayton wasn't responsible for the shooting of a police officer - not fully. Instead, attorneys claimed the root of the killing was in that missing piece of his frontal lobe.

That argument - that a person's brain anatomy ought to change the way we assign guilt - has become an increasingly common one, according to Duke law professor Nita Farahany.

"The more we understand about neuroscience we see that even subtle abnormalities can affect human behavior," she said in a phone interview. "People are using neuroscience to argue, 'It's not my bad character, it's my bad brain,'" she said.

Farhany is a member of the Presidential Commission for the Study of Bioethical Issues and an expert in the growing field of neurolaw, which examines how brain science is and ought to used in the legal system. She monitors cases where neuroscientific data has been brought as evidence and found a marked upswing in the past few years.

But as MRI scans and electroencephalogram recordings of brain activity are brought out of the examination room and into the courtroom, the focus of a trial shifts from assigning guilt to assessing mental and moral blame.

"As we develop better technologies for probing the brain, we detect more problems, and link them more easily to aberrant behavior," neuroscientist David Eagleman wrote in an essay for the Atlantic. "... When a criminal stands in front of the jury's bench today, the legal system wants to know whether he is blameworthy. Was it his fault, or his biology's fault?"

Neuroscience has revealed that humans have a lot less control over their actions than they like to think, Eagleman said. Brain injuries - particularly ones to the frontal lobe, like Clayton's - can radically reduce the ability to make decisions and check impulses.

And though it didn't work for Clayton, that understanding has helped others avoid the death penalty in recent cases. In 2013, prison escapee and convicted murder John McCluskey was sentenced to life without parole rather than the death penalty after his defense presented MRI evidence showing significant abnormalities in his frontal lobe. The headline in Wired read "Did brain scans just save a convicted murderer from the death penalty?" 2 years earlier, a juror at the trial of a Florida man who stabbed his wife and step-daughter said brain scans convinced him not to vote for the death penalty.

"It turned my decision all the way around," juror John Howard told the Miami Herald.

Though there aren't enough of these cases for a large enough sample size for serious study, research has shown that scientific evidence about a hypothetical defendant's brain function is likely to limit a sentence's severity. A 2012 study in Science found that, on average, judges subtracted a year from an imaginary convict's sentence after being told he was genetically predisposed to violence.

"Those who read about the biological mechanism subtracted a year, as if to say, 'This guy is really dangerous and scary, and we should treat him as such, but the biological evidence suggests that we can't hold him as responsible for the behavior," James Tabey, a co-author of the study, told the New York Times.

Even though neuroscientific evidence has been shown to be increasingly compelling in recent years, Farahany isn't surprised that it wasn't helpful in Clayton's case. The more than 20-year gap between Clayton's accident and his crime weaken the argument that he was unable to control his behavior. And though Clayton's brain was clearly abnormal, there is not enough research to definitively say the missing part of his frontal lobe caused him to commit murder.

"That piece is missing literally and figuratively," she said. " ... Once neuroscience gets to the point of causal explanations, in retrospect we might look back at it and say, 'Here's why he did what he did.'"

It's an exciting - but also worrying - possibility for neurolaw researchers. On one hand, neuroscience may help judges figure out when treatment rather than imprisonment is the more helpful option for someone who, for biological reasons, can't control his or her behavior.

On the other hand, neuroscience has increasingly shown that none of us can really control our behavior.

"Saying, 'My brain made me do it' can be problematic because our brains make us do everything," Farahany said. "Your preferences, your desires, your will power - a lot of that you have no control over."

Eagleman, in his essay, agrees.

"The choices we make are inseparably yoked to our neural circuitry, and therefore we have no meaningful way to tease the 2 apart," he wrote. "The more we learn, the more the seemingly simple concept of blameworthiness becomes complicated, and the more the foundations of our legal system are strained."

Then the inclusion of MRI and EEG scans as trial evidence is not just a scientific or legal question, Eagleman and Farahany believe, but a philosophical one. In a justice system predicated on the idea that people act with free will, what does it mean to recognize that so much of behavior is biological rather than rational?

"Criminal law is going to have to grapple much more seriously with why people do what they do," Farahany said.

Source: Washington Post, March 18, 2015

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