In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

New Report: Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering

Executions have been set for (top row, from left) Kenneth Williams,
Jack Jones Jr., Marcell Williams, Bruce Earl Ward, and (bottom row, from
left) Don Davis, Stacey Johnson, Jason McGehee and Ledelle Lee.
Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people. It has not sent an inmate to the death chamber since 2005. But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.

This report examines the cases of those condemned men, and what we found is devastating. 

At least five of the eight cases cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. 

Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison. 

A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years. 

In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.

Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. 

Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. 

Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas. 

The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.

➤ Click here to read the full article

Source: Fair Punishment Project, March 30, 2017

Arkansas Is About to Execute Six Men Who Likely Suffer From Crippling Mental Impairments

Arkansas' death chamber
Arkansas' death chamber
At least six of those eight men likely suffer from crippling mental impairments.

As a young child, Jason McGehee carried his dog Dusty around with him everywhere he went. He dressed him in pet clothes, put his birthday on a paper calendar, and went to bed each night with the dog sleeping beside him. McGehee’s aunt filed a legal declaration stating that his mother suffered from chronic depression and abused McGehee. His aunt also alleged that McGehee’s stepfather was sadistic. At a family dinner, she claimed, he kicked Dusty to death using his pointy boots as weapons and forcing McGehee to watch. When the dog died, “[t]hat was the turning point,” McGehee’s aunt later observed. “Jason was never the same after that.”

McGehee also suffers from bipolar disorder, which runs in his family. According to an expert evaluation, he may have some impairment in his frontal lobe, the area of the brain responsible for judgement, problem solving, and emotional regulation. Symptoms of mental illness emerged during childhood, but his mother allegedly did not get him help, believing he was “possessed by the devil.”

At 21 years old, Jason lived with several friends in a house without utilities, supporting himself by passing stolen checks and committing other petty crimes. After a frequent houseguest named John Melbourne told the police about the stolen checks, the housemates and Melbourne had a physical altercation that culminated in Melbourne’s death. McGehee received the death penalty. His 17-year-old co-defendant, who admitted to strangling Melbourne with an electric cord until he died, got a sentence of life without parole.

Jason McGehee is one of the eight men Arkansas intends to execute between April 17 and April 27. (McGehee’s execution is scheduled for the 27th.) Arkansas will execute more people in that 11-day period than every state except Georgia did all of last year. A new report released by the Fair Punishment Project reveals that at least six of the eight men likely suffer from crippling mental impairments. But juries never heard much evidence of such impairments because of the shoddy representation the men received at trial. In two cases where there was little evidence of serious mental impairment, it appears as though no lawyer bothered to conduct a thorough investigation into the client’s background.

Under the Eighth Amendment, the death penalty must be reserved for the worst of the worst—those who commit the most heinous homicides and whose personal culpability makes them especially worthy of blame. The Supreme Court has recognized that intellectual disabilities “[lessen] moral culpability and hence the retributive value of the punishment.” Executing those who fall into that category serves “[n]o legitimate penological purpose,” the court has found, and “violates his or her inherent dignity as a human being.”

But unless Arkansas’ governor intervenes or a court stays these executions, the state will kill eight men who either have debilitating impairments that diminish their moral culpability or else have lawyers who likely never performed the type of investigation that might reveal such impairments.

Source: Slate, Jessica Brand, March 30, 2017

Harvard Law: Executions challenge ‘legitimacy and integrity’ of Ark. death penalty law

Arkansas Governor Asa Hutchinson
Arkansas Governor Asa Hutchinson
LITTLE ROCK (TALK BUSINESS & POLITICS) — A report from the Harvard Law School’s Fair Punishment Project concludes that Gov. Asa Hutchinson should halt eight executions set for April so that “legal deficiencies” in the trials of the eight men can be reviewed and to “preserve public confidence in the rule of law.”

Also, 23 former corrections department officials and administrators from around the country sent Gov. Hutchinson a letter asking to him to reconsider his plan to execute prisoners “at the unprecedented rate of two-per-day on four execution days over a ten-day period.”

Gov. Hutchinson has set four execution dates in April for eight Arkansas inmates on death row whose appeals have been exhausted and whose cases the U.S. Supreme Court declined to review in late February. Hutchinson scheduled the following eight inmates – with date of execution – to be put to death, all for capital murder.
  • April 17: Don Davis, Bruce Ward
  •  April 20: Stacey Johnson, Ledelle Lee
  •  April 24: Marcel Williams, Jack Jones
  •  April 27: Jason McGehee, Kenneth Williams
On March 27, a lawsuit was filed in U.S. District Court-Eastern District of Arkansas asking the court for a preliminary injunction to prevent the state from executing the prisoners “so that the court may adequately consider their claims on the merits.” Jessica Ray, spokeswoman for Attorney General Leslie Rutledge, called the prisoners’ lawsuit “another attempt to delay justice.” Ray said AG Rutledge is reviewing the lawsuit, but “she will continue to fully defend Arkansas’s method of execution, and she expects the executions to proceed as scheduled.”

As to the Harvard report, Rutledge spokesman Judd Deere told Talk Business & Politics, “Due to ongoing litigation, I’m not in a position to offer comment.”


The Harvard report made public Thursday (March 30) provides a tough assessment on the path that brought the eight men to the planned April execution dates.

“At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison,” noted a press release announcing the report.

The report included the following points and statements.

• “Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness – one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest.”

• “The quality of lawyering in some these cases is unconscionably bad. Some of these men could not have fared worse even if they had no lawyer at all,” said Jessica Brand, Legal Director for the Fair Punishment Project. “They failed to perform even basic duties, such as hiring a mitigation specialist to evaluate the client’s mental health or talking to members of their client’s family. In many of these cases, the juries and judges never heard crucial evidence that could have spared these men from execution.”

• Under the Eighth Amendment, capital punishment “must be limited to those offenders . . . whose extreme culpability makes them the most deserving of execution.” Our review of the Arkansas cases shows that this standard is not close to being met.

• Bruce Ward, who has been on death row for over two decades, has been diagnosed with paranoid schizophrenia. He appears not to understand that he is about to die, believing instead that he is preparing for a “special mission as an evangelist.”

Rob Smith, director of the Fair Punishment Project, said the number of questions with each case is more than enough to at least delay the executions.

“Just this week, the Supreme Court reaffirmed that the death penalty is supposed to be reserved for the most culpable offenders, and yet it is very clear that the individuals facing execution in Arkansas suffer from a number of crippling impairments that show they do not even come close to meeting that bar,” Smith noted.

In a statement from his office to Talk Business & Politics, Gov. Hutchinson said his duty as Governor requires the dates be set before the lethal injection drugs expire.

“As required by law, I have set the execution dates for the eight convicted of capital murder. This is based upon the Attorney General’s request and the exhaustion of all appeals and court reviews that have been ongoing for more than a decade. This action is necessary to fulfill the requirement of the law, but it is also important to bring closure to the victims’ families who have lived with the court appeals and uncertainty for a very long time.

“One of the three drugs in the lethal injection protocol expires at the end of April. In order to fulfill my duty as Governor, which is to carry out the lawful sentence imposed by a jury, it is necessary to schedule the executions prior to the expiration of that drug. It is uncertain as to whether another drug can be obtained, and the families of the victims do not need to live with continued uncertainty after decades of review.”


The March 28 letter from the 23 former corrections officials to Gov. Hutchinson does not argue against the death penalty. Instead, it addresses the “stress and trauma” on corrections’ staff that could result based on the expedited execution schedule.

“While we are confident that the staff of the Arkansas Department of Correction will strive to carry out these executions with the greatest professionalism, we also fear that the burden of such a condensed schedule will increase the chance of an error occurring,” the letter noted. “Recent high-profile problems during executions in other states provide ample evidence of this risk and underscore the fact that execution of a prisoner is a complex and difficult process, with little margin for error.”

Those who signed the letter include Robert Brown Jr., who was director of the Michigan Department of Corrections for 30 years (1961-1991); Frank AuBochon, consultant with the Texas Department of Criminal Justice (1981-2007); Dave Cook, director of the Oregon Department of Corrections (1995-2002); and Ron McAndrew, warden of the Florida State Prison (1978-2001).

“In this instance, we hope that you will reconsider the pace of the planned executions to protect the professionals who will carry them out and to ensure that the procedures are legal and humane,” the letter concluded.

Gov. Hutchinson said he has been assured the execution schedule will not create problems for corrections staff.

“I continue to rely on the advice and counsel of Director Wendy Kelley and the professional staff at the Arkansas Department of Correction (ADC) on the timing and plans for any execution. They have expressed their satisfaction with the current schedule and have confidence in our protocol. We have experienced staff here in Arkansas. I will continue to listen to our professional staff as we go through the steps of this process.”


Although numerous activist groups have emerged in recent years to oppose the death penalty, with many of those groups pushing for delay of Arkansas’ planned April executions, there continues to be majority support in many areas of the country for capital punishment.

Oklahoma voters in November 2016 voted (66%-34%) to constitutionalize the state’s death penalty. The law also removed the ability of state courts to declare it cruel and unusual punishment or a violation of any provision of the state constitution.

Nebraska voters in 2016 also approved by a wide margin a law returning the death penalty as an option for judges and juries to consider in murder cases. California voters in 2016 rejected an initiative that would have abolished the death penalty in that state.

A Pew Research study conducted in August and September 2016 found that 49% of Americans favor the death penalty in murder cases, with 42% opposing it. However, that is the lowest level of support in more than 40 years, according to the Pew data. A 1996 Pew survey found that 80% of Americans supported the death penalty.

Support for the death penalty is, not surprisingly, divided along political lines, with Pew showing that just 34% of Democrats favor the death penalty while 72% of Republicans support it.

Source: KATV Little Rock, March 30, 2017

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