Death Penalty Update: November 2004

ACLU Capital Punishment Project

News

Arguments Heard in Simmons vs. Roper:

On Wednesday, October 13, the United States Supreme Court heard arguments in Roper v. Simmons, a case that will determine the constitutionality of executing juvenile offenders. Marsha Levick, Chief Counsel of the Juvenile Law Center, and Dr. David Fassler, Trustee of the American Psychiatric Association, were among the juvenile law and medical experts who spoke to reporters following the arguments. Both Ms. Levick and Dr. Fassler participated in a DPIC briefing for Supreme Court reporters prior to the argument.

The case has drawn broad interest from the media in the United States and abroad, including editorials in newspapers around the country. A decision is expected before the end of June 2005.

Background on the Simmons v. Roper case:

In January 2004, the United States Supreme Court announced that it would hear the case of Roper v. Simmons, addressing a Missouri Supreme Court decision, 112 S.W. 3d 397 (Mo. 2003), which ruled that executing offenders who were under the age of 18 at the time of their crimes violated the Eighth Amendment to the United States Constitution. The Missouri Court relied heavily on the Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304 (2002) where the Court held that the Eighth Amendment prohibited executing mentally retarded people. The Court conducted an analysis of public opinion on the issue and concluded that under the "evolving standards of decency test" society no longer approved of executing mentally retarded people. Based on its analysis of Atkins, the Missouri Supreme Court struck down the juvenile death penalty believing that the Supreme Court would have done the same. The Missouri Court stated, "[T]he Supreme Court of the United States would hold that the execution of persons for crimes committed when they were under 18 years of age violates the "evolving standards of decency that mark the progress of a maturing society." Roper at 413.

The Missouri Court started its analysis from Stanford v. Kentucky, 492 U.S. 361 (1989), in which the Court held that executing those who committed their crimes at the age of 16 or 17 did not violate the Eighth Amendment. On the same day that Stanford came down, the court decided Penry v. Lynaugh, 492 U.S. 302 (1989), upholding the execution of mentally retarded offenders. The same rationale was used by the Court to uphold the death penalty against both groups of people - there was not a national consensus against executing either mentally retarded or juvenile offenders so under the "evolving standards of decency" test, it was constitutionally acceptable to execute them.

In reaching its decision, the Missouri Court laid out the Atkins' Court's rationale for determining that public opinion had evolved to the point that executing mentally retarded people was no longer considered an appropriate punishment. The Court looked at state legislative intent and found that 18 death penalty states prohibited executing mentally retarded offenders. This was 16 more states than at the time of the Penry decision. The Court also looked at the frequency with which death sentences were being imposed on mentally retarded people; only five people known to have been mentally retarded had been executed since the Penry decision. It also considered the opinions of professional organizations, religious and social organizations and the practice of other countries, which were nearly unanimously opposed to the practice. Lastly, it undertook an independent examination and concluded that the main goals of capital punishment - retribution and deterrence - did not apply to mentally retarded people because their mental limitations made them less culpable for the crime and less able to act with premeditation and deliberation, which made them less likely to be deterred by the threat of a death sentence. Simmons at 404.

The Missouri Court then compared this rationale to the juvenile death penalty and concluded that since the time of the Stanford decision, six more states have eliminated the use of the juvenile death penalty bringing the total to 17 (since that time, 2 more state legislatures have repealed the juvenile death penalty bringing the total to 19). The Missouri Court pointed out that the practice of executing juvenile offenders had become unusual. It noted that only six states - Missouri, Texas, Virginia, Georgia, Oklahoma and Louisiana - have actually executed a juvenile offender since Stanford. (The actual number is seven; it forgot to include South Carolina.) As with mentally retarded people, there was a national and international consensus against executing juvenile offenders. The Missouri Court cited dozens of national organizations and professional associations that opposed the practice. Lastly, the Missouri Court undertook its own analysis and determined that the social purposes of the death penalty - retribution and justice - did not apply because juveniles are less culpable due to their developing brains and were generally considered less responsible than adults. Furthermore, the death penalty was unlikely to deter juveniles because of their lesser ability to reason and their lack of informed judgment, and also because the practice was so infrequently used that any possible deterrent value had been lost.

Dissenting Judge William Ray Price, Jr. opposed the decision on procedural, rather than substantive grounds. He held that it was inappropriate for the Missouri Supreme Court to overrule a United States Supreme Court precedent. "It is the prerogative of the Supreme Court of the United States, and its alone, to overrule one of its decisions." Roper at 421.

For more information visit: www.deathpenaltyinfo.org

Juveniles and the Mentally Disabled More Likely to Give False Confessions:

Studies and surveys have found that both minors and the mentally impaired are more likely to make false confessions, in part because they are more vulnerable to suggestion. A recent study conducted by Northwestern University law professor Steve Drizin and UC Irvine criminologist Richard Leo examined 125 cases in which individuals were exonerated after giving false confessions. The researchers found that 32% of the cases involved minors and 22% of the cases involved individuals with mental retardation. "They are more likely to go along, agree and comply with authority figures - to say what the police want them to say - than the general population," notes Emory University professor Morgan Cloud, who co-wrote another study that found that the mentally impaired - even those who with mild forms of mental retardation - are largely incapable of understanding police admonitions of their right to remain silent and to have an attorney.

A study published in the University of Chicago Law Review examining comprehension of Miranda rights found that only 27% of disabled persons understood that confessions can be used against a suspect, while 91% of nondisabled persons understood this concept. Disabled subjects were also found to be far less likely to understand that police cannot threaten suspects, that police and judges cannot force suspects to talk, and that there is no penalty for remaining silent. While juveniles and those with mental impairments are most likely to succumb to psychological pressure and make erroneous admissions during intense police interrogations, experts note that even the able-minded are at risk. Social scientists and legal experts say the best way to ensure that confessions or admissions are truthful is to require detectives to tape them from the Miranda warning in the first interview until the end of all subsequent interviews. Some states, including Alaska and Minnesota, already require this type of videotaping. UC Berkeley sociologist Richard Ofshe notes that video or voice recordings of confessions would reduce false confessions by as much as 90% because it would stop coercive tactics that are sometimes used by police. (Los Angeles Times, October 30, 2004).

For more information visit: www.deathpenaltyinfo.org.

Upcoming Executions

NOVEMBER

11/18/04 TX Troy Kunkle

11/23/04 OH Nawaz Ahmed

11/30/04 KY Thomas Bowling, Jr.

DECEMBER

12/01/04 TX Frances Newton (female)

12/02/04 PA George Banks

12/03/04 NC Charles Walker

JANUARY

01/04/05 TX James Porter

01/20/05 TX Dennis Bagwell

01/20/05 TX Jose Briseno

01/26/05 CT Michael Ross

01/27/05 TX George Jones

MARCH

03/10/05 TX Alexander Martinez

03/15/05 TN Christopher Davis

APRIL

04/12/05 TN Robert Leach

Upcoming Events

National Convention of the Campaign to End the Death Penalty Fourth Annual Convention of CEDP Saturday & Sunday, November 13 - 14

Kent Hall, 1020 East 58th St., University of Chicago, Chicago, IL Join family members, former death row prisoners, and activists to take a look at our movement, our victories, and our challenges. Activists from across the country will gather for two days of lively discussions, workshops and guest speakers.

SPECIAL GUESTS: Dr. Barbara Ransby, noted historian and author of "Ella Baker and the Black Freedom Movement: A Radical Democratic Vision," will speak on "The Roots of the Civil Rights Movement: Lessons for Activists Today." Billy Neal Moore spent almost 17 years on Georgia's death for the robbery-murder of a 77-year old man. He will speak about the circumstances surrounding his crime and will take up the question, "Should people be given second chances?" He will also speak about how the victim's family members played a pivotal role in helping to free him from death row. Ryan Matthews, recently freed from Louisiana's death row, his sister Monique Matthews, and mother Pauline Matthews will tell about the years of struggle she and her family waged to save Ryam from execution.

Other special guests include: Shujaa Graham, former California death row prisoner; Darby Tillis, exonerated Illinois death row prisoner; Madison Hobley, pardoned Illinois death row prisoner; Sandra Reed, mother of Texas death row prisoner Rodney Reed; Gricelda Ceja, mother of fomer Illinois death row prisoner Raul Ceja, who is now serving a life sentence; Mildred Henry, member of the Enough Is Enough Campaign, whose son is wrongfully imprisoned after being tortured by Chicago police.

For complete information, visit www.nodeathpenalty.org or call (773) 955-4841.

For additional questions, comments, or feedback, please contact Abbi Ferguson at aferguson@dcaclu.org.