Harvard Law report says executions challenge ‘legitimacy and integrity’ of Arkansas’ death penalty law

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.”

‘ABYSMAL REPRESENTATION’
The Harvard report made public Thursday (March 30) provides a 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.

You can see the full Harvard Law report at this link.

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.”

LETTER FROM CORRECTIONS OFFICIALS
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.

Link here for a PDF copy of the letter.

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.”

SUPPORT FOR DEATH PENALTY
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.

Death penalty advocates also say the punishment gives closure to the victim’s families, is a form of crime deterrent and provides a deterrent for prisoners already serving a life sentence, and gives prosecutors another bargaining chip in the plea bargain process. They also note that DNA testing and other modern methods reduce or eliminate uncertainty as to a person’s guilt or innocence in a capital murder.