Will the U.S. Finally End the Death Penalty?

In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

Death penalty cases of 2017 featured botched executions, claims of innocence, 'flawed' evidence

Screenshot from "Rectify"
The death penalty was again on the decline in 2017, but the problems that accompany the finality of capital punishment remain.

This year, 23 people were executed—the second fewest executions in the past 25 years, coming in just behind the 20 inmates who were put to death in 2016. Since 2009, the number of executions across the United States has generally declined, with public support for capital punishment dropping by 5 percent to 55 percent this year, marking the lowest level since 1972, the year the Supreme Court declared it unconstitutional.

“There will be times when numbers fluctuate—particularly following historic highs or lows—but the steady long-term decline in the death penalty since the 1990s suggests that in most of the country, the death penalty is becoming obsolete,” said Robert Dunham, the executive director of the Death Penalty Information Center.

But even as the numbers of executions fall, the flaws and controversies surrounding capital punishment could be found in the cases of all the men who were put to death this year. In 2017, the people executed argued that bad lawyers, faulty forensic evidence and poor mental health, among other things, brought them to death row. Several prisoners maintained their innocence until their executions. All 23 men were put to death by lethal injection. And in some cases, lawyers argued the introduction of a new drug in a deadly cocktail used to execute prisoners was a violation of the Constitution’s Eighth Amendment guarding against cruel and unusual punishment. This argument was used throughout the year to little avail, subjecting some to what onlookers said were botched executions.

While all 23 cases exhibited the numerous issues surrounding capital punishment, Newsweek has chosen five, each of which highlight the arguments of those who oppose the death penalty.

Ricky Jovan Gray

Time on death row: 10 years

Gray, 39, was convicted of brutally murdering a Richmond, Virginia, family during a drug-driven killing spree in which he slaughtered seven people in six days in 2006. After smoking marijuana laced with an unknown substance—thought to be PCP—Gray showed up at the home of musician Brian Harvey, his wife Kathryn, and their two young daughters, Stella and Ruby. What began as a home invasion robbery escalated to gruesome murders in which Gray bound his victims, cut their throats and bludgeoned them with a hammer. After that, he poured wine on an easel and set the house on fire.

Lawyers argued that the jury should consider that Gray had become addicted to drugs as a child to cope with sexual and physical abuse. He was high at the time of the murders, they said, and had become confused by the substances.

Gray was executed by lethal injection in January. His attorneys asked for him to be executed by firing squad instead, claiming the drugs he was to be given were the equivalent of “chemical torture.” A judge denied their claim on the grounds that they had failed to prove that using the drug was unconstitutional and told them Gray had the constitutional option of the electric chair.

Ledell Lee

Time on death row: 21 years

Lee, 51, became the first Arkansas prisoner to be executed in the state in a decade when he was put to death in April. He had been convicted of murdering and sexually assaulting 26-year-old Debra Reese in her home in 1993. She was struck 36 times with a tire thumper that her truck driver husband had given her as a way to protect herself while he was away on the road. Lee maintained that he was innocent until his execution.

Complicating Lee’s case, Lee was given a lawyer who admitted to being drunk during court proceedings. Eventually, she was removed and Lee was given new counsel.

Lee’s lawyers also had asked for new DNA testing of a hair found at the scene and drop of blood on his shoe, but that was denied. The microscopic hair analysis method that was used by investigators to incriminate Lee was formally discredited by the FBI and Department of Justice in 2015, which admitted it could not distinguish specific hairs from others. The FBI and DOJ had agreed to the review of criminal cases after three men were exonerated after convictions in which FBI hair examiners offered testimony that 'was scientifically flawed.'

Kenneth Williams

Time on death row: 16 years

Williams’ execution made headlines in April after he alarmingly lurched and convulsed before dying as Arkansas rushed to put eight inmates to death over 11 days. One of its difficult-to-obtain drugs in the lethal cocktail used for execution was set to expire at the end of the month.

About three minutes into his execution by lethal injection, the 38-year-old’s body lurched violently 15 times in a row before slowing down for a final five movements, journalists who witnessed the execution reported. Once he stopped jerking, he moaned and groaned once during a consciousness check before ultimately falling still seven minutes in.

His attorneys released a statement following the execution calling it “horrifying” and demanding an investigation into what happened. Arkansas had scheduled eight executions over 11 days in a bid to use its lethal injection drugs before they expired.

Williams was convicted of killing a former deputy warden after he escaped from prison in a 500-gallon barrel of hog slop in 1999. At the time of his escape, he had served less than three weeks of a life term for killing a college cheerleader.

Thomas Arthur

Time on death row: 34 years

Known as the “Houdini of Death Row,” Arthur escaped execution seven times before being put to death in May for a 1982 murder-for-hire. Arthur claimed he never committed the crime and his lawyers unsuccessfully argued that he would be exonerated by DNA testing that Alabama refused to undertake.

Arthur, 75, was convicted of murder after prosecutors argued he entered Troy Wicker’s home disguised as a black man and shot him dead in the eye with a pistol. At the time, Arthur was having an affair with Wicker’s wife, who claimed she had paid him $10,000 to murder her husband. She changed her story to authorities, and had originally told investigators she had been raped by a black man.

Arthur had requested the death penalty at the end of his trial, telling jurors it would buy his legal team extra time to prove his innocence. His lawyers insisted their client would be proven innocent by DNA testing of hair samples found at the scene, but Governor Kay Ivey denied the requests, saying that a jury had already found him guilty with the evidence they were provided.

After his execution, his daughter called for mandatory testing of DNA evidence from capital punishment cases across the country. But Alabama has started moving in the opposite direction and voted this year to approve a bill that would shorten appeals processes for inmates on death row.

Mark James Asay

Time on death row: 18 years

Asay’s August execution marked the first in Florida since a 2016 U.S. Supreme Court decision put the state’s death penalty at a standstill. He also was the first white man put to death for killing a black person in the state.

Asay was convicted in 1988 of fatally shooting Robert Booker after calling him a "n-----." He also shot dead Robert McDowell—a white and Hispanic man who was dressed as a woman—after he agreed to pay him for oral sex, according to The Tallahassee Democrat. The 53-year-old condemned killer admitted to killing McDowell, but maintained he never murdered Booker.

He was the first Florida prisoner to be executed with a new lethal injection protocol that substituted etomidate for midazolam as the first drug in a three-drug cocktail. Etomidate is meant to sedate prisoners before they are injected with drugs that paralyze the inmate, then stop the heart. Asay’s lawyer unsuccessfully argued before the execution that the use of etomidate is unconstitutional since it can cause pain that results in twitching.

Asay's faced numerous challenges throughout his case. One of his lawyers ended up being investigated for shoddy work after a Florida Supreme Court judge found out she had missed critical deadlines for appeals and had kept his records in a shed where they were destroyed by water and vermin. And the state Supreme Court acknowledged this year it had mistakenly thought that McDowell was black for more than 20 years. Asay's lawyers unsuccessfully argued that the belief he had murdered two black men was a critical factor in his death penalty sentence, and the error showed that the crimes were not racially motivated.

Source: Newsweek, Lauren Gill, December 30, 2017

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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