America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Georgia executes Kenneth Fults

Kenneth Fults
Kenneth Fults
ATLANTA- Georgia executed a death row inmate who shot a woman to death during a burglary in 1996.

Kenneth Fults, 47, was put to death at 7:37 p.m. Tuesday by injection of the barbiturate pentobarbital at the state prison in Jackson. Fults pleaded guilty in 1997 to killing 19-year-old Cathy Bounds in January 1996, and a jury sentenced him to die.

Fults is the fourth person executed in Georgia this year. Another inmate, Daniel Lucas, is scheduled to die April 27.

There was no one in the execution chamber for Fults, so he had no final words for witnesses from the media and the state who had gathered. But he ended the prayer offered by the chaplain with, "Amen."

A few minutes after the execution drugs had begun to flow, he twice looked at the IV inserted into his right arm. Moments later, his entire body shook for a few seconds. Then he was still. 15 minutes later he was pronounced dead.

The State Board of Pardons and Paroles on Monday declined to grant clemency to Fults.

The parole board on Monday held a clemency hearing for Fults that wasn't open to the public or the media. As is its custom, the parole board did not give a reason for denying clemency, saying only that its members considered the facts and circumstances in the case. The parole board is the only entity that can commute a death sentence in Georgia.

In a clemency petition submitted to the parole board, Fults' lawyers detailed a childhood characterized by neglect and abuse at the hands of heavy-drinking family members and his mother's string of violent boyfriends.

"Throughout his life, Kenneth Fults was abandoned and rejected by those who were supposed to care for him, ridiculed and dismissed by those who could have helped him, and beaten up and down by family members and strangers alike," his lawyers wrote.

Fults has an intellectual disability that means he "functions in the lowest one percent of the population," meaning he has insufficient reasoning abilities, lacks impulse control and fails to learn from experience, the clemency petition said.

He is extremely remorseful, having told Bounds' mother at trial that he would trade places with Bounds if he could, and took responsibility for his actions by entering a guilty plea, his lawyers wrote.

Fults' trial lawyer failed to tell the jury during sentencing that Fults was intellectually disabled and didn't go into the details of his rough childhood, his lawyers wrote. Jurors quoted in the clemency petition said the trial lawyer slept through parts of the sentencing and didn't seem prepared or interested in protecting the best interests of his client.

His death sentence is unfair because one of the jurors who sentenced him to die was motivated by racial prejudice, Fults' lawyers wrote.

During jury selection, Thomas Buffington told the judge and lawyers on both sides he felt no racial prejudice. He was selected for the jury that sentenced Fults to death.

An investigator who was part of Fults' legal team reached out to Buffington eight years later to ask about his experience on the jury.

"Once he pled guilty, I knew I would vote for the death penalty because that's what that (N-word) deserved," Buffington said, according to an affidavit signed April 12, 2005.

Buffington died in 2014.

Fults' lawyers also asked the U.S. Supreme Court to halt his execution and to consider his claims that his death sentence is unconstitutional because of Buffington's alleged racial prejudice. The U.S. Supreme Court declined to halt the execution.

Prosecutors said Fults killed Bounds during a weeklong crime spree that started when he stole two guns during burglaries. After trying unsuccessfully to kill his former girlfriend's new boyfriend with one of the stolen guns, Fults broke into the trailer next to his, where Bounds lived with her boyfriend.

Bounds, who was home alone, pleaded for her life, but Fults forced her into the bedroom, wrapped electrical tape around her head, put her face-down on the bed, put a pillow over her head and shot her five times in the back of the head, prosecutors said.

One woman and 62 men have been executed in Georgia since the death penalty was reinstated in 1976.

Fults becomes the 4th condemned inmate to be put to death this year in Georgia and the 64th overall since the state resumed capital punishment in 1983.

Fults becomes the 12th condemned inmate to be put to death this year in the USA and the 1434th overall since the nation resumed executions on January 17, 1977.

Sources: cbsnews.com, Live Twitter feed, Rick Halperin, April 12, 2016

A Tainted Execution in Georgia

The U.S. Supreme Court declined to halt an execution on Tuesday despite a juror’s racial slurs against the inmate.

Georgia's Death Chamber
Georgia's Death Chamber
The U.S. Supreme Court declined to halt the scheduled execution of a Georgia man convicted of murder on Tuesday despite evidence his sentencing jury had been tainted by racism. Thomas Buffington, a juror in the 1997 trial of Kenneth Fults, signed an affidavit in 2005 saying “that’s what that nigger deserved.”

The Georgia Board of Pardons and Paroles denied a request for clemency on Monday, leaving the high court as his last remaining chance at avoiding lethal injection. Fults filed an eleventh-hour request last week for the U.S. Supreme Court, which denied previous petitions to hear his case, to directly intervene.

Fults’ execution Tuesday night will come almost 20 years after the original crime. Fults, a black man, pled guilty to the January 1996 murder of Cathy Bounds, his white neighbor, after shooting her five times in the back of the head during a series of burglaries. The jury sentenced him to death in May of 1997.

After sentencing, Fults’ case began the complex appeals process that accompanies any death-penalty case. First, the Georgia Supreme Court affirmed his conviction and sentence on direct review in June 2001. From there, Fults then sought a separate habeas review in the state courts in 2003 and in federal courts in 2009.

While his lawyers gathered evidence for the state habeas review, one of their investigators interviewed Buffington, who served on the jury that sentenced Fults to death. Buffington had told the court during jury selection he held no racial biases. Eight years later, his answer changed.

“I don’t know if [Fults] ever killed anybody, but that nigger got just what should have happened,” the 79-year-old man said in a sworn affidavit in April 2005. “Once he pled guilty, I knew I would vote for the death penalty because that’s what that nigger deserved.”

Buffington later died without further involvement in the case. Two other jurors subsequently signed statements condemning his remarks and questioning the fairness of his jury service. “It is my personal opinion, a person with this mentality cannot sit in judgment of others,” said Ryan Archer, the jury’s foreman. Another juror, Mary Bunn, said she was “deeply troubled that Mr. Buffington was allowed to sit in judgment of Mr. Fults since he considered Mr. Fults to be less of a human being.”

In response to Fults’ petition to the Court, the state of Georgia said in a footnote it “obviously does not dispute that this is a highly offensive racial slur.” But the state argued Buffington’s statement should be ignored on procedural grounds. Because Fults did not raise a juror misconduct claim while his case was on direct appeal—which concluded four years before the affidavit was signed—he was barred from raising it on habeas review, Georgia’s lawyers contended. The Georgia Supreme Court and the federal Eleventh Circuit Court of Appeals sided with the state.

Fults’ current lawyers countered there was no way of knowing about the juror misconduct during that appeal. They also blamed inadequate counsel during Fults’ trial and direct appeal—an understatement, to say the least. Johnny Mostiler, the public defender of Spalding County, Georgia, routinely fell asleep while representing Fults at trial and died of a heart attack during his direct appeal. Mostiler also had an overwhelming caseload, a cozy relationship with county prosecutors, and a penchant for telling racist jokes. While representing Curtis Osborne for a double homicide in 1991, he turned down a plea bargain for a life sentence without informing his client; Osborne received the death penalty and was executed in 2008. A white client recounted how Mostiler, in reference to Osborne, told him “that little nigger deserves the chair.”

The Supreme Court denied Fults’ petition last year, and Georgia set an execution date last month. But his lawyers asked for a new stay of execution after the Court agreed earlier this month to review Pena-Rodriguez v. Colorado, a case also concerning racist remarks by a juror. In that case, the Court will consider whether the no-impeachment rule, which protects jurors from answering questions about their deliberations in many jurisdictions, should apply to evidence of racial bias.

Fults’ lawyers argued he should not be executed until after Pena-Rodriguez is decided, citing parallels with their case and the potential for a favorable outcome. (One major difference: the racist juror in Pena-Rodriguez made his remarks during deliberations, not afterwards, allowing other jurors to quickly notify the judge.) But the Court denied the stay request Tuesday afternoon, roughly five hours before his scheduled execution. None of the justices offered public dissents.

Source: The Atlantic, April 12, 2016

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