Death Penalty Archives - Bolts https://boltsmag.org/category/death-penalty/ Bolts is a digital publication that covers the nuts and bolts of power and political change, from the local up. We report on the places, people, and politics that shape public policy but are dangerously overlooked. We tell stories that highlight the real world stakes of local elections, obscure institutions, and the grassroots movements that are targeting them. Sat, 27 Jan 2024 16:49:06 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 https://boltsmag.org/wp-content/uploads/2022/01/cropped-New-color-B@3000x-32x32.png Death Penalty Archives - Bolts https://boltsmag.org/category/death-penalty/ 32 32 203587192 Under the Shadow of the Extreme Case https://boltsmag.org/los-angeles-da-george-gascon-blanket-policies/ Wed, 24 Jan 2024 17:38:29 +0000 https://boltsmag.org/?p=5735 On his first day in office, Los Angeles DA George Gascón rolled out a suite of blanket bans against some severe punishments. The ensuing years have been a crash course in the politics of reforming prosecution.

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In December 2020, on the eve of taking the reins as the district attorney of Los Angeles County, George Gascón was up late trying to make a decision. He’d been elected weeks earlier on promises to change Los Angeles’ approach to criminal punishment, but he was hesitant on how much to shake up the system. “10, 11 o’clock at night, the night before I was being sworn in, I’m looking at two versions of what I’m going to say,” Gascón recalled in a recent interview at his office in Downtown LA. His first speech articulated a more incremental approach, but the more he looked at it, the more he became convinced that it would risk “business as usual.” 

He chose the second speech. 

The following day, Gascón announced a sweeping set of categorical, or ‘blanket’ policies, his office would adopt: no death penalty, no charging minors as adults, no life without parole sentences. Not rarely, or selectively—never, under any circumstances. Perhaps most consequentially, he vowed that prosecutors in his office would not seek enhancements, special circumstances that can add decades to someone’s sentence and affect tens of thousands of cases each year in Los Angeles County. 

Prosecutors are typically reluctant to delineate such clear-cut policies, preferring to protect the boundless discretion of their office. Even those who vow reform tend to merely promise to deprioritize certain practices without ruling anything out. But Gascón told me that it was important for him to draw clear lines in the sand, in part because he knew that he’d be walking into an office whose management team largely opposed his plans. “I wanted to make sure that this was going to be just not a bunch of political promises—this was going to be a real thing,” he said.

Nearly immediately, the new DA found himself under fire, including from staff in his office who bristled at being told not to use some of their regular tools. Almost as quickly, he announced a tweak to his enhancements policy, allowing exceptions for hate crimes and offenses against children and the elderly. And that was just the beginning. Many of the biggest inflection points of Gascón’s first term have revolved around the use of blanket policies: one court battle after his own deputies filed suit claiming that his directive to not seek enhancements violated the law, one protracted media storm involving a case that seemed to challenge the principle of never trying young people as adults, and two fizzled recall attempts by adversaries who said he was neglecting the duties of his office. 

Now, Gascón is defending his seat against 11 challengers, nearly all of whom are running to his right in the March primary. (The top two candidates will head to a November runoff unless someone clears 50 percent of the vote.) Many of his opponents are attacking the very idea that a DA should ever issue categorical policies. In fact, a number of them have contested his approach ever since 2020. The field includes four line prosecutors working in his office, several of whom are highly involved in the union that sued him and one who says she was demoted for questioning his directives; and a former attorney at the firm that filed the lawsuit.

At first glance, blanket policies might seem like an intuitive tool for reform prosecutors because they both embody a clear vision of change and help to enact that vision. “They’re actually very useful, smart policies to implementing what we care about, which is a less racist, more fair system where also we can put more resources into very, very serious cases,” said Jessica Brand, founder of the Wren Collective, a national organization that researches criminal legal policy and helps advise reform prosecutors. 

But Brand said she’s nonetheless hesitant about recommending such policies: “They’re latched onto in these hyper political ways.” Blanket directives like Gascón’s tend to become lightning rods for controversy, especially given that so much of criminal legal policy—and debate around that policy—in the U.S. is defined by the specter of extreme cases. 

One of the most indelible examples of this dynamic in modern American politics happened just across town from the Los Angeles DA’s office.

During a 1988 presidential debate held at UCLA, Democratic nominee Michael Dukakis, a lifelong opponent of the death penalty, was asked if he would change his mind about capital punishment if his own wife, Kitty, were raped and murdered. His immediate answer—that he wouldn’t, given his deeply felt principles on the matter—is widely considered to have harmed his presidential bid; it remains seared in the minds of a generation of political observers, a cautionary tale about the perils of ruling anything out when it comes to criminal punishment.

Michael Dukakis, right, with George H. W. Bush at the 1988 debate in Los Angeles during which he was asked about the death penalty. (Photo by Kirk McKoy/Los Angeles Times, under a CC license.)

Over 30 years later, Gascón ran on the gamble that the politics of crime had changed enough for him to rule out quite a bit more than just the death penalty, and he won in 2020 after making blanket promises as part of his campaign pitch. But the ensuing years only raised the stakes of that gamble, leading the DA to hedge in certain ways and double down in others. As he embarks on a difficult reelection campaign, I wanted to understand what Gascón’s tenure has revealed about the politics of transforming prosecution, especially in a place as vast and complex as Los Angeles. How do you set about making big changes to an entrenched system without sparking so much resistance that your ambitions founder? What does it take, in other words, to dispense with business as usual?


To understand why a reform DA would insist on a blanket policy despite the political risks, you first have to understand the status quo they’re fighting against. “This is an arcane system, and it’s not going to go gently and quietly into the night,” Cynthia Roseberry, acting director for the ACLU’s Justice Division and a former public defender, told me. “We’ve got to be bold in our strokes to change it.”

For reform DAs like Gascón, blanket policies are an effort to disengage from practices that they consider simply unconscionable: outdated, racist, overly harsh, or morally dubious. Gascón cites data showing that the death penalty is riven with errors and racial bias. He points to the fact that young people sent into the adult system can spend decades in prison for a mistake they made as a teenager. And he has underscored that sentencing enhancements, a product of the tough-on-crime era, can add many years of incarceration onto whatever baseline punishment has been determined to fit the underlying crime. “Do we send somebody to prison for way beyond their natural life, or do we send them for a period of time where they may be able to redeem themselves and come back?” Gascón asked me.

Blanket policies can put clear guardrails around a DA’s charging decisions, instead of them telling the public: just trust me. If you believe that the state shouldn’t be in the business of taking a life or that young people’s developing brains leave them fundamentally unable to grasp consequences the way an adult can, there’s no sense in judiciously applying the death penalty or charging juveniles as adults, the thinking goesit simply shouldn’t be done at all. 

“When we think about removing something like enhancements, what we’re also saying is we know that they’ve been used improperly and there’s not a way to correct them in isolation,” said Roseberry. Mona Sahaf, who runs the Vera Institute’s Reshaping Prosecution Initiative, thinks that “it’s a big opportunity to shrink the footprint of the system.” 

Reformers also make the case that prosecutors have had a key role in exacerbating mass incarceration. Discretion is the lifeblood of their trade, but historically, prosecutors have almost always used that freedom to move in one direction—towards harsher punishment, even above and beyond what the law requires. Over and over again, they come down on some people harder than others: 45 percent of people serving a life sentence in California under the Three Strikes law are Black, as Gascón’s enhancements directive noted. Maria Gonzalez, the legal clinic coordinator at Los Angeles’ Youth Justice Coalition, has a loved one doing 100 years on an enhancement case. “That life is done. It’s gone,” she told me flatly. 

Other prosecutors who say that they share Gascon’s opinions about the death penalty, or that sentencing enhancements are broken, still prefer to say they’ll assess each case on its own, rather than draw a clear line in the sand. But to organizers like Melina Abdullah, a leader of Black Lives Matter’s Los Angeles chapter, this is just a way “to not make any commitments.” 

“You can’t just make decisions on a case-by-case basis,” she told me. “You have to have a set of legal principles that you adhere to.”

A rally in Los Angeles during the Black Lives Matter protests in the summer of 2020. Some protesters criticized the policies of Jackie Lacey, who was DA at the time. (Photo from Levi Meir Clancy/Wikimedia Commons)

After all, DAs aren’t running around trying cases themselves—rather, they oversee large offices of deputies responsible for the day-to-day work of prosecution, who can easily ignore vague principles from up top. In fact, given that the professional norms of prosecutors tilt towards punitive sentencing, reform prosecutors have found themselves undermined by staff resistant to carrying out their changes. 

Announcing blanket policies, then, is a way for reform DAs like Gascón to use the power they do have to limit the power of their own office, and to tie the hands of the vast bureaucracies they oversee. Prosecutors don’t have the ability to directly stop police from racially profiling young men of color, or to edit the penal code, or to rectify the socioeconomic inequalities that can lead to gang involvement. What they can do is order their own staff to stop using gang enhancements. 

Or can they? Less than one month after Gascón took office, his line prosecutors took him to court, contending that his enhancements directive was forcing them to break the law. Legislators passed the STEP act, which established sentencing enhancements for gang affiliation, and Californians approved a “three strikes and you’re out” sentencing scheme; the lawsuit argued it simply wasn’t in Gascón’s power to forbid his deputies from using those tools. Gascón replied that voters elected him to upend the status quo, and that his role allowed him to direct his own staff. 

In February 2021, a judge ruled that Gascón did not have the authority to bar his prosecutors from seeking enhancements for prior strikes, or serious felony charges. As long as California’s “three strikes” law was on the books, it wasn’t up to him whether to enforce it. But the judge’s decision did leave him free to bar his prosecutors from seeking other forms of enhancements in new cases. Gascón argues that this ruling wasn’t a major blow to his plans because it only affected a share of enhancement cases.

“Quite frankly, it’s a very small piece, not only of the policy, but of the work,” he told me. At that point in 2021, the bulk of his vision remained intact. 


The backlash to blanket policies is politically and geographically contingent. In red states, even the appearance of one has led to preemption or removal by state officials, meaning that DAs trying to do things differently are often forced to be a bit cagier about their plans, while prosecutors in blue states tend to have more leeway. 

In 2017, Orlando’s prosecutor, Aramis Ayala, was taken off some high-profile murder cases by the Florida governor after she announced she would never seek the death penalty. In San Francisco, meanwhile, former DA Chesa Boudin encountered comparatively tepid criticism for his ban on death penalty cases, in part because two predecessors—Gascón and Kamala Harris—had already paved the way. “It was well within the heartland of San Francisco politics,” Boudin, who now runs UC Berkeley’s Criminal Law and Justice Center, told me. 

In liberal Los Angeles, Gascón’s death penalty ban has also not been seriously contested, even though the county lacks the precedent that San Francisco had; his predecessor, Jackie Lacey, was notorious for her embrace of capital punishment, and helped make LA County one of the nation’s leading counties in handing out death sentences. But Gascón went further. By attempting to address lengthy sentences for people who commit violent crimes, he struck what has long been a third rail in reform debates, even among people who agree that mass incarceration is a problem: questioning very lengthy sentences for people who commit violent crimes. 

The U.S. has often fashioned its approach to punishment in direct reaction to especially heinous or high-profile crimes—California’s ‘three strikes’ law, for instance, was motivated by the abduction and murder of nine-year-old Polly Klaas—and these crimes have animated debates around sentencing policy in a more ambient way, too. We have no shortage of infamous cases to draw from—serial killers, mass murderers, bizarre cases like Charles Manson or the Unabomber—and these people tend to loom very large in the popular imagination, even as they represent a microscopic percentage of Americans who commit crimes. This has meant that extreme outcomes—sentences of decades or even hundreds of years—have become commonplace, far more so than the extreme offender they were initially designed for. 

Today the specter of the “worst of the worst” continues to haunt criminal legal debate, often putting politicians who favor major policy upheavals on the defensive, like Dukakis answering Bernard Shaw’s question in 1988 in front of tens of millions of Americans. This is particularly fraught within the juvenile justice system, where the increasingly popular slogan that we should treat children as children, in accordance with newer research showing that brain development continues into the mid-20s, exists alongside the possibility of truly extreme cases. 

In Sahaf’s time working with reform prosecutors at Vera, she has observed that “it’s very difficult to make an absolute pledge never to charge a child as an adult and then carry through on it, because you see these exceptions happen…children do sometimes commit really atrocious crimes.” And eventually just such a case would land on Gascón’s desk: Hannah Tubbs. 

Tubbs’s case seemed to span the gamut of aggravating factors: here was someone who had sexually assaulted a child in a restaurant bathroom stall less than a year before turning 18, who was 26 by the time she was caught and facing punishment, who had already racked up an extensive criminal record, and who mocked the victim and expressed no remorse. “Nothing is ever unique, but it was as close to unique as you could [get],” Gascón told me. But he added that there were mitigating circumstances, too. His commitment to keeping the case in the juvenile system led to internal clashes, and then public opprobrium after jailhouse recordings of calls between Tubbs and her father were leaked to Fox News. 

“This clearly shows you the dangerous aspect of the blanket policies of George Gascón,” Jonathan Hatami, a prosecutor in the DA’s office and frequent critic who’s now running against him, told the LA Times—which, along with other local media, covered the case extensively. 

Facing the biggest fracas of his tenure, Gascón announced in February 2022 that he would alter his directives on life without parole sentences and charging juveniles as adults: instead of total bans, he was establishing two committees to consider “extraordinary” cases that might merit such special circumstances. Each committee would be staffed by three senior advisors, including one who publicly stated she didn’t agree with his about-face.

This approach, his office said, would “create a different pathway for outlier cases, while simultaneously creating protections to prevent these exceptions from becoming the rule.”

These tweaks may seem minor, since “extraordinary” cases are by definition rare and since Gascón created a structured process to evaluate them. But to some, their vague quality signaled a worrisome retreat from the principles the DA had run and won on. 

For the ACLU’s Roseberry and local advocates like those at the Youth Justice Coalition, even one minor charged as an adult is one too many. “The idea that we would approach them in any respect as irredeemable is a frightening prospect,” said Roseberry. “These children come to us having been shaped by circumstances and environments that are beyond their control.”

Other reform DAs have tried for a similar balance as Gascón: Boudin’s sentencing directive in San Francisco, for instance, created a presumption against enhancements but left room for them in “extraordinary circumstances,” as long as he or a deputy signed off. “From a legal standpoint, we were on stronger ground by writing into the policy discretion to make exceptions,” he told me. (Boudin did maintain a blanket prohibition against charging juveniles as adults throughout his two and a half years in office.) 

Still, Youth Justice Coalition communications director Emilio Zapién stressed that using edge cases to guide criminal legal policy making is destructive to the chances of the young people the Youth Justice Coalition works with. “For every really horrific case, like the one you’re talking about, the Tubbs case, there are 15 to 20 others [that show] transformation,” he told me. 

Zapién added that he found the whole debate around Tubbs to be cynical: “The folks that are arguing for more criminalization and incarceration of young people of color after the mainstream media sensationalizes one case as a political tactic… those folks already had those beliefs before.” 

At the time of the Tubbs case, Gascón had already weathered one recall campaign motivated by aspects of his categorical policies. One of the public faces of the recall was a woman, Desiree Andrade, whose son Julian had been brutally murdered. Under Lacey, his killers faced the death penalty or life without parole; once Gascón took office, those options were off the table. The words “Gascon [sic] REFUSES to prosecute juveniles as adults under any circumstances, even rape, murder or other heinous crimes, even if days shy of turning 18” were front and center on the campaign’s website

That recall attempt imploded after organizers failed to garner enough money or signatures–but they swore they’d be back, and some recall proponents took up the Tubbs case as a rallying cry. The second recall campaign that resulted also fizzled out about a year later. Ironically, it’s been the intensity of the opposition to Gascón, more than anything else, that has vindicated what many of his allies have said all along: prosecution is political.

Now the energy behind those efforts has been channeled into the upcoming election, with a number of Gascón’s loudest critics and recall supporters returning to run against him.

Nathan Hochman, a former Republican candidate for California attorney general, writes on his campaign website that Gascón’s blanket directives “demonstrate distrust in his prosecutors” and promises to restore prosecutorial discretion. His website names the elimination of blanket policies as a crucial component in his “blueprint for justice.” 

Nathan Hochman, a candidate for DA this year, with then-Los Angeles Sheriff Alex Villanueva during Hochman’s 2022 candidacy for attorney general (Hochman for DA/Facebook)

John McKinney, a prosecutor in the DA’s office, said at an October debate that he’d “repeal and replace” every directive Gascón announced on his inauguration day. Hatami, the frequent critic, has said that “blanket policies should all be revoked,” telling Los Angeles Daily News “I believe in discretion.” Eric Siddall, another prosecutor in Gascón’s office and the former vice president of the deputy DA union, has also vowed to make the issues targeted by most of Gascón’s blanket policies subject to a “case-by-case analysis” instead. Maria Ramirez, yet another prosecutor in the office, has used similar language. 

I reached out to the campaigns of a handful of the candidates for their thoughts on blanket policies. None responded by the article’s deadline. Jeff Chemerinsky’s campaign reached out after publication to say that Chemerinsky, a former federal prosecutor, would never seek the death penalty as DA, but that he would eschew other blanket directives.

Siddall, who has also insisted he is not opposed to progressive reform while criticizing Gascón for taking a “defendant-centered approach,” has made the same key concession to Gascón’s model, vowing to forgo the death penalty. Other candidates, meanwhile, have not ruled it out. It may not be to his advantage, but Gascón’s blanket policies set the terms of the debate.


Gascón has made more than a few political calculations of his own over his three years in office. As he approaches his first reelection test in March, he has kept in place some of his initial blanket directives, like his commitment to never seek the death penalty. During the tenure of his predecessor Lacey, 22 people were sentenced to death in LA, all of them people of color, but Gascón has never tried. His administration has also worked to resentence people who are already on death row to life without parole; his office told me it has secured that change for 29 people as of this week.

Meanwhile, the DA has altered some directives to define a process for considering “exceptional” cases, while preserving the central presumption of the policy. He has walked farther back from others, maintaining the goal of avoiding certain enhancements but without clear guidelines. And he’s been barred by the courts from pursuing still others. 

This convoluted landscape reflects Gascón’s concessions to his critics from the right, to be sure. But his case to progressives has also evolved: His record shows, he argues, that blanket policies altered by carve-outs can also accomplish his decarceral goals. “Do I think this has made a difference?” he asked me when we spoke. “I think it’s made a tremendous difference.”

Gascón softened his blanket prohibition against charging minors as adults, for instance, but this has not opened the floodgates to adult prosecutions.

As a result of his original policy, Gascón said that hundreds of teenagers per year who might otherwise have been sent to an adult prison are now being treated in the juvenile system. To Gonzalez, who spends her days in court advocating for young people on behalf of the Youth Justice Coalition, the change has been palpable. 

“LA County has made so much progress on helping our youth,” she said. “I’ve seen young people be under diversion and continue to go to school, graduate from school. Last year, we had two graduates that could have easily just been in a cell.” (Like her colleague Zapien, Gonzalez disagrees with Gascón’s decision to modify this policy).

Since Gascón modified his blanket prohibition in February 2022, the Juvenile Alternative Charging Committee had recommended that ten cases be transferred to adult court, according to the DA’s office. In the first transfer hearing to take place, the judge, J. Christopher Smith, actually overrode the committee, ruling that the teenage defendant wasn’t beyond rehabilitation and noting that he had cognitive deficiencies and a history of childhood abuse. The ruling echoed Gascón’s initial absolute commitment to the possibility of personal transformation even in cases where a young defendant had done something heinous; in doing so, Smith brought into sharper relief Gascón’s decision to retreat from that principle. 

Gascón told me that he actually agreed with the judge’s decision. But he also defended his office’s charging committee, saying they may have been influenced by the gravity of the crime, a double murder, and invoking the value of outsourcing these evaluations to an independent body. “I gave the committees full freedom to decide,” he told me. 

Separately, he called it “affirming” that state law had nearly caught up to his December 2020 blanket policy: In 2022, the California legislature raised the bar to try minors as adults, reflecting the changing consensus on juvenile culpability. (Gascón wrote a letter in support of that effort).  

Similarly, Gascón set up a charging committee tasked with determining whether a case merits a possible sentence of life without parole, and this committee has given prosecutors the go-ahead to seek that sentence some 23 times since February 2022, according to information gathered on the DA’s website. The office has applied a “special circumstances” enhancement, which requires a sentence of life without parole in the event of a conviction, in two recent high-profile and especially gruesome cases: a man who allegedly serially targeted and killed homeless people, and the son of a famous Hollywood agent who is accused of killing and dismembering his wife and her elderly parents. 

Supporters of a campaign to recall Gascón outside the Los Angeles County Registrar in July 2022. (Photo from AP Photo/Ashley Landis)

Gascón may have gotten what he wanted out of these cases: They are being widely covered in local media, but seemingly no one has invoked them in order to criticize the DA for being soft on crime. By opening the door to some life without parole sentence in high-profile instances, the DA had perhaps freed himself up to avoid that sentence in the vast majority of cases with far less scrutiny or blowback.

But just how far can he take this approach? The judge who ruled on the deputy prosecutors’ lawsuit in 2021 gave Gascón carte blanche to maintain his initial blanket policy barring other sorts of new enhancements—special allegations that would add on extra time for gang involvement or the presence of a weapon, for example. The DA’s office says it has maintained a blanket prohibition on gang enhancements. 

But on gun enhancements, Gascón has retreated from his initial categorical policy in a murkier way. In November, he told me that his office had been adding gun enhancements on a case-by-case basis, allowing line prosecutors to seek them if they get management approval.  

“We are selectively using those enhancements but it’s being done, again, much more thoughtfully,” Gascón said. 

I later asked Gascón’s chief of staff, Tiffiny Blacknell, why Gascón retreated from this blanket policy voluntarily. “It’s reasonable that there should be some exceptions to some of these directives, with the exception of the death penalty,” she said, adding that the DA had over time erected a management structure that he trusted to carry out his vision. “We’re using a scalpel, not a sledgehammer.” The office does not have a written policy governing when it’s appropriate for prosecutors to seek these enhancements. Blacknell said bureau directors make the final decision based on factors such as the severity of the crime and past criminal history. 

On this front at least, the DA’s current stance sounds a lot more like the “case-by-case” rhetoric of his challengers. This risks a return to the starting point that local progressives hoped to get away from: just trust me, I’m the one who can use this tool wisely

And that argument, Gonzalez said, wouldn’t slide with the people who elected him in the first place. “The community is bigger than the pushback he’s getting right now,” she told me. “The community is gonna stand up and say, ‘I don’t believe you.’”

Gascón says it’s easy to distinguish his commitment to reform from opponents who only pay lip service to it during campaign season, pointing to his record in office.

For organizers who work closely on policing, prisons, and sentencing in Los Angeles, there is a continuous need to decide whether they buy the DA’s revised case for change. Are his carve-outs a strategically savvy response to the backlash, or are they a retreat to punitive conventions? What’s the line between preserving some space for extraordinary cases and mirroring old paradigms of boundless prosecutorial discretion? In that ongoing assessment, many are balancing their frustration over Gascón’s walkbacks with an awareness of what he’s up against—what it takes to change an intractable system under the ever-present specter of Michael Dukakis. 

“I’m never a fan of a prosecutor because I think the system is fundamentally set up against Black and brown and Indigenous and poor people,” Abdullah told me. But she noted that the DA has pursued goals she sees as critical, including prosecuting law enforcement officers who engage in violence or corruption. “I think what he’s demonstrated is that chipping away at unjust systems can be helpful as we work towards transformation.” Gascón is walking a tightrope, she said: “How do you hold on to the principles that you say you believe in without losing your seat? And how do you balance the two?”

“Someone like me, I don’t believe in life without the possibility of parole. I don’t believe in ever trying a child as an adult,” Abdullah said. “But again, I’m not running for prosecutor.” 


This article has been updated with a response, received after publication, from the campaign of Jeff Chemerinsky on his policy views.

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Louisiana Organizers Brace for Landry https://boltsmag.org/louisiana-organizers-brace-for-landry/ Wed, 10 Jan 2024 20:04:14 +0000 https://boltsmag.org/?p=5695 Facing a hard-right turn on criminal justice with the arrival of a new governor, advocates for criminal justice reform vow to redouble their efforts.

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It surprised everybody, above all the 57 people sitting on Louisiana’s death row: In March of 2023, with less than 10 months left as governor, John Bel Edwards had just revealed his profound opposition to capital punishment. Lawyers working on the cases sprang into motion. In June, they filed a flurry of petitions for clemency, asking the governor to commute 56 of those sentences to life without parole. In a state where only two capital sentences have been commuted in the past half-century, it seemed like a door had been cracked ever so narrowly open. 

And then, just as quickly, it slammed shut: Louisiana’s attorney general and the leading candidate in the race for governor, Jeff Landry, filed a lawsuit against the Board of Pardons and Parole, seeking to disqualify the petitions; he then fired the lawyer the Board hired to represent it in the suit, and instead installed an attorney who has represented him in the past. What followed over the next few months, as Edwards’s days in office dwindled to zero, has amounted to an agonizing bureaucratic back-and-forth: the Board, following Landry’s suit, has repeatedly declined to grant the prisoners full clemency hearings, instead scheduling brief administrative reviews for fewer than half of them. 

One of the prisoners, Henri Broadway, has maintained his innocence in the 1993 murder of police officer Betty Smothers. During his review, his defense team was cut off early, while the opposition received 10 extra minutes to speak. “It’s very, very discouraging,” Broadway’s lawyer, Sarah Ottinger, told Bolts. “Henri Broadway is innocent.” 

“It was headed towards fair and full consideration of these cases,” said Cecelia Kappel, whose organization, the Capital Appeals Project, coordinated the petitions. “It took, I think, a huge effort by Jeff Landry and the DAs association to stop this.” Ultimately, not a single person was granted clemency—or even a full hearing. 

In November, after a dismal voter turnout, Landry won the election. His inauguration as governor earlier this week marked a stark transition for the state.

For the people who fight to change Louisiana’s penal system—historically brutal, harsh, and deadly even compared to the rest of the US—the past eight years under Edwards were a time of cautious optimism. A rare Democratic leader in the Deep South, he worked to pass landmark, bipartisan criminal justice reform legislation in 2017, expanded Medicaid to prisoners, vetoed harsh criminal justice laws passed by the Republican-dominated legislature, and ramped up commutations, especially over the last year. With Edwards as a “backstop,” Promise of Justice Initiative organizer Katie Hunter-Lowrey told Bolts, “it felt for a while that Louisiana had been protected from some of the more extreme actions being taken across the country.”

Landry, meanwhile, has signaled that he will be a very different sort of leader—a return to Louisiana’s harsh status quo on criminal justice, but with a heightened level of bombast. A Trump ally and product of the Tea Party, he embodies the new Republican party’s commitment to the culture war and antipathy toward compromise. He has repeatedly targeted the state’s majority Black cities, supported harsher criminal laws, and indicated his intention to roll back Edwards’ landmark reforms. Empowered with a GOP supermajority in both houses of the legislature, Landry is likely to be able to carry out his agenda without much resistance. “Louisiana will continue to stay at the top of the prison incarceration list, and we will not be any safer or any more prosperous for it,” said Sarah Omojola, the director of Vera Institute of Justice’s New Orleans office.

But advocates are refusing despair, opting instead to view this as a signal to redouble their organizing efforts, especially to communities that aren’t already mobilized but might recoil from the hard-line policies that Landry is poised to enact. “These [low voter] turnouts were a wake up call,” said Reverend Alexis Anderson, the co-founder of the East Baton Rouge Parish Prison Reform Coalition, which works to shed light on the local jail death crisis

Anderson told Bolts she views this moment as an opportunity—nowhere to go but up. “If we don’t, and we basically go hide in a corner somewhere, then we’re ceding something that doesn’t make any sense,” she said. “We are always one election away from changing things.”


A moderate operating amidst a sea of red, outgoing governor Edwards at times moved too carefully for some onlookers, a frustration recently on display after his refusal to use his power to unilaterally direct the Board of Pardons to hold full hearings for the death row petitioners. But his reforms have made a difference: Louisiana may still be the “prison capital of the world,” with the highest per capita rate of incarceration on the entire planet, but its incarcerated population has gone down some 24 percent during Edwards’s time in office. 

These improvements are largely owing to the Justice Reinvestment Initiative, a landmark package of 10 criminal justice bills that Edwards and the legislature worked to pass in 2017. In the six years since its passage, the reforms have reduced the number of people convicted of nonviolent crimes in prison, funded victims’ support and reentry services that reduce recidivism, and shrunk the parole and probation population. But advocates now worry this progress could be undone under the new governor. Last year, Landry supported the creation of a task force on violent crime designed to review the effects of the reform package, as well as another 2016 law that moved 17 year olds back into the juvenile justice system. He has already announced a special legislative session on crime, where it is widely assumed he will support repealing the laws that made up the justice initiative. The special session could convene as soon as February.

Anderson said she’s especially troubled by the thought that Landry might roll back Louisiana’s scant juvenile justice reforms. (Last year, he vigorously supported a bill that would have made teenagers’ criminal records public, but only for teenagers who lived in three of the state’s majority-Black parishes, including East Baton Rouge.) “Primarily African American boys are going to be put into harm’s way in the worst kind of way,” Anderson said. “You just can’t unring that bell, the harm that’s going to be done.” 

Meanwhile, Landry has already assembled a special committee on New Orleans, an unusual move. It’s an indication that he might seek to use his new office to preempt local control and try to ramp up law enforcement presence in the city, both things he also did as Attorney General. 

In response to Landry’s proposals, Omojola told Bolts that Vera will be going back to the coalition that succeeded in winning those landmark 2017 reforms in the first place— “reconvening that dream team of people to figure out, how do we both protect the progress we’ve made and also continue to move forward?” she said. “Those reforms were just a first step. Much, much more needs to be done.” 

While Louisiana’s GOP trifecta and a Republican supermajority in the legislature will make it difficult for organizers to stop new bills from becoming law, they hope that they can get people into the streets and continue to organize on the local level as well. “The race to the bottom isn’t just at the governor’s mansion. It’s in the legislature but it’s also in some of these localized policymakers,” said Anderson, highlighting the need for advocates in Louisiana’s cities to organize with rural populations as well. 

Omojola stressed the importance of national organizations like Vera partnering with local membership groups like Louisiana Survivors for Reform, which Hunter-Lowrey coordinates. The coalition’s work organizing with people who might not already be inclined towards criminal justice transformation could be a useful strategic template. This year, for example, they’ve worked with family members of victims in two of the death row cases. “So often, this tough-on-crime legislation is passed in the name of victims and survivors. But for the past few years, [the Louisiana Survivors for Reform coalition] has showed that there are survivors who are saying, ‘Actually, that’s not for me,’” Hunter-Lowrey told Bolts. “The work that we’re doing to provide a non-judgmental space for survivors and victims’ families where advocacy is explicitly part of our healing—it has made a difference.” 

“It’s going to continue to take some time, but I think that path that we’re laying brick by brick is still the right one,” she added.

Hunter-Lowrey’s colleague at Promise of Justice Initiative, Michael Cahoon, has been organizing with faith leaders across the state for several years, most recently around the campaign to ask for mercy for those on death row. “We activated a lot of folks who hadn’t been active,” he said. “We’re definitely hoping to continue that sense of urgency and that sense of moral imperative in the next year.” 

“As we move forward into a new political reality,” Cahoon went on, “It’s also about presenting an affirmative vision for what safety looks like, beyond our over-reliance on mass incarceration. “And I think that’s going to be the work of the next year, four years, eight years, 10 years.” 

For Anderson, it all comes down to voter mobilization. “There are things that any governor can do that can be problematic,” she told Bolts. “When the voters simply do not show up, do not flood the legislature, do not call, there’s no accountability.” She pointed to the raft of elections coming up this year. In 2024, Louisiana will select a new state supreme court justice and nine intermediate appellate court judges, send six representatives to the U.S. House, and choose a public services commissioner. The state’s three biggest parishes will hold school board elections. Even party elections can make a difference: Norris Henderson, a formerly incarcerated organizer, is running for Democratic State Central Committee. 


The Louisiana Parole Project has a practice of posting to social media each time a client’s sentence is commuted. Most of the photos depict older Black men, smiling broadly, with Angola’s gates blurred in the background. This year, the images have proliferated: despite his reluctance to move on the death row clemency petitions, Edwards did commute the sentences of at least 123 prisoners, the vast majority of them lifers. Though that’s just a small percentage of those serving life sentences in the state, it’s still the highest number of commutations of any governor since the 1980s. “For a lot of those families, the only way they would have seen their loved one was in a box when they sent him home,” Anderson said. 

But if Landry is anything like his Republican predecessor, relief will be scarce in the coming years: Bobby Jindal commuted just three people’s sentences during his entire eight years in office.

Landry’s election has not only dashed hopes of commutation for prisoners on death row or anywhere else—it has also raised the very real possibility that executions will resume in the state. Louisiana last put a man to death in 2010, only after he waived his right to keep fighting his case and asked the state to end his life; there have been no contested executions in the state since 2002. But Landry has long defended capital punishment. In 2018, he criticized Edwards for not doing more to resume executions and argued that the state should consider older methods of execution, like hanging and firing squads.

Cecelia Kappel, the capital defense lawyer, is worried that the new governor might try to do what he can to jumpstart executions. But she’s also motivated by how the clemency battle exposed deep flaws in the way Louisiana doles out death sentences and by how much the public’s support for capital punishment has eroded in recent years. In August, she succeeded in getting one of her clients an entirely new trial. “We’re just going to keep moving forward,” she told Bolts. “And we shall see what the future brings, but I think that we will see more exonerations and we will certainly see more reversals in the next few years.”

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Inside the Urgent Campaign to Commute North Carolina’s Entire Death Row https://boltsmag.org/north-carolina-death-penalty-mass-clemency-roy-cooper/ Mon, 11 Dec 2023 16:48:10 +0000 https://boltsmag.org/?p=5571 This article was produced as a collaboration between Bolts and NC Newsline. Every night one of his neighbors was scheduled to be executed by the state of North Carolina, Glen... Read More

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This article was produced as a collaboration between Bolts and NC Newsline.



Every night one of his neighbors was scheduled to be executed by the state of North Carolina, Glen Edward “Ed” Chapman would look up at the window slit in his cell and say to the black sky, “I’ll see you again.”

Saying goodbye was hard. Chapman and his peers who were also condemned to die formed a small community within the prison system. And whenever the state executed someone, that community would shrink by one member.

“I was close to those guys on death row,” Chapman said. “They were like family.”

One of the people killed while Chapman was on death row was Ernest Basden, sentenced to death in 1993 in a murder-for-hire scheme. After he got to prison, Basden stopped using alcohol and drugs and found God. His family had traveled around the state to build public pressure to convince then-Governor Mike Easley to grant Basden clemency and spare his life.

They failed. One cold winter evening, Basden’s family huddled in the mailroom of Central Prison in Raleigh to say goodbye, able to freely talk with and touch him in the last hours of his life.

“My mom had not hugged him in 10 years,” said Kristin Stapleford, Basden’s niece.

Basden was executed in the early morning of Dec. 6, 2002.

More than 20 years later, Chapman is on the other side of the bars, having been exonerated and released from prison, and is now joining Basden’s family in again urging a North Carolina governor to spare the lives of the men and women sentenced to death.

“We promised him that we would not give up the fight, that we would fight to see the death penalty abolished in North Carolina,” Stapleford said.

Stapleford and Chapman are members of a coalition of more than 20 social and criminal justice organizations and religious leaders calling on Governor Roy Cooper, a Democrat, to commute the sentences of the people on North Carolina’s death row to prison terms before he leaves office at the end of 2024. A Bolts and NC Newsline analysis shows there are currently 136 people on this death row—the fifth-largest number in the U.S.—whose lives would be spared if Cooper were to act. 

Commutation is one form of clemency, a broad power most U.S. governors have to change a person’s criminal conviction or prison sentence, most often due to individual circumstances of a person’s incarceration; whether they were convicted as a youth, for example. Former North Carolina Governor Terry Sanford, who held the office from 1961 to 1965, saw his clemency power as a form of grace.

“It falls to the governor to blend mercy with justice, as best he can, involving human as well as legal considerations, in the light of all circumstances after the passage of time, but before justice is allowed to overrun mercy in the name of the power of the state,” Sanford wrote in 1961, after shortening the sentences of 29 prisoners through executive clemency.

But what Cooper is being asked to do now is much broader.

This coalition of activists is calling on him to commute death sentences as an act of racial justice. In North Carolina—a state where people were legally enslaved for more than 100 years—just over 22 percent of residents are Black, but over half of those on death row are Black or African American, according to figures provided to Bolts and NC Newsline through a public records request. Of the dozen people who have been sentenced to death in North Carolina and later found innocent, 11 are people of color.

Advocates are now hoping Cooper will offer clemency for the 136 people on death row en masse, regardless of the circumstances of the crimes of which they are convicted, because of the injustices of the death penalty and North Carolina’s criminal legal system at large.

Granting clemency would not mean that the people on death row would be released from prison, nor would it mean the abolition of the death penalty going forward. The state constitution only grants the governor discretion to shorten a sentence as he sees fit. Cooper could, for instance, commute the sentences to life without the possibility of parole. Or, he could sentence them to life and leave the possibility of parole open. 

It’s similar to a petition made by advocates in Louisiana, who earlier this year asked Governor John Bel Edwards to commute the sentences of more than 50 people on that state’s death row. So far this mass request has been blocked by the Louisiana Board of Pardons. 

Ed Chapman in Durham, North Carolina. Since being exonerated in 2008, Chapman says he he wants a pardon so he can be paid for the time he was in prison. He just wants to live out the rest of his life with his grandchildren, and maybe one day start a recovery center for women or a food truck. (Justin Cook for Bolts/NC Newsline)

While North Carolina governors frequently granted clemency in the late 1970s until 2000, commutations became rare starting in 2001.

Executions have slowed as well—North Carolina hasn’t executed anyone since 2006, and North Carolina’s district attorneys pursue the death penalty at a much lower rate than in years past. But with Republicans controlling the state supreme court and holding supermajorities in the House and Senate, many anti-death penalty advocates are concerned that they could restart, especially if a Republican moves into the executive mansion.

The death penalty has been raised as a talking point in early debates among Republican gubernatorial candidates and has been an issue in previous elections as well. In 2017, top Republican legislators demanded Cooper and Attorney General Josh Stein, a Democrat now running for governor, resume executions after four prisoners at Pasquotank Correctional Institution were charged with killing four employees in a failed escape attempt. 

Two of those four men have since been sentenced to death.

A new governor couldn’t simply sign a slip of paper and reopen the execution chamber since the courts are the reason for the pause in executions. There are ongoing legal battles over the application of the Racial Justice Act, landmark legislation that gave people an opportunity to get off death row if they could prove racial discrimination had played a role in their death sentence. Democrats passed that bill in 2009, Republicans repealed it in 2013. Then, when Democrats controlled the state supreme court in 2020, it struck down the retroactive repeal of the law, allowing the claims that had already been filed to continue to play out through the present day. 

But conservatives now control the state supreme court, and advocates worry they could revisit that ruling, clearing a path to resume executions. There are also still legal questions about North Carolina’s protocols for using lethal injection drugs to carry out executions, though advocates worry North Carolina Republicans could find a way around that, as they have tried to in South Carolina and Alabama. 

Republican control of the other branches of state government has given those opposed to the death penalty a sense of urgency. At a recent rally, Kristie Puckett, the senior project manager of Forward Justice, told a crowd of around 200 supporters that Cooper was their last hope because of North Carolina’s current political climate.

“We can’t trust our legislature. We can’t trust the courts,” she said. “And so we are forced to rely on Governor Cooper.”

The coalition has staged marches, written letters and met with the governor’s staff. They’ve held film screenings on the “Racist Roots” of North Carolina’s death penalty and handed out postcards so residents can write Cooper directly. Soon, they’ll post billboards and travel to communities across the state to build support for the campaign as it enters its final year before Cooper leaves office.

“Our commutations campaign is very focused on 2024 because we have a sense of urgency that executions could resume, as they did in the federal system,” said Noel Nickle, executive director of the North Carolina Coalition for Alternatives to the Death Penalty. “I am concerned that the political climate of our state has become more entrenched in policies and practices that would lead to executions resuming.”

Cooper, who has had a mixed record on commutations, has been pressured for years by criminal justice reformers, many of whom have gathered outside the governor’s mansion annually calling on him to use his clemency powers. Cooper didn’t grant any commutation until March 2022—two years into his second term—shortening the prison terms of three people who committed crimes when they were children. In December 2022, after three weeks of protests outside his home, Cooper commuted the sentences of six more people.

So far, Cooper has made no public comment on the 136 currently on death row. In 2017, after the murders at the prison in Pasquotank, a spokesperson for the governor said Cooper supported the death penalty and had a “long history of upholding it” during his 16 years as attorney general. The governor’s spokesperson did not answer recent questions from Bolts and NC Newsline on whether he still supports the death penalty or if he was considering commuting North Carolina’s death sentences.

Puckett credited the annual campaign for getting Cooper to issue commutations last year. She doesn’t think he would have exercised clemency otherwise.

“That’s the only reason he’s doing something: because he’s forced to do something,” she said.

A lasting legacy

The North Carolina governor’s office is weak by design but clemency is one area where the executive branch has broad authority to commute prison sentences without approval from a parole board.

“This is a rare policy area where the governor has power, can exercise it, and doesn’t need to ask anyone else for permission,” said Christopher Cooper, a professor of political science at Western Carolina University (who has no relation to the governor).

Even so, it would be novel for a Democratic governor—especially in the South—to use their power to unilaterally empty their state’s death row. Louisiana’s John Bel Edwards, tried to grant the mass clemency request he received before he left office, but he was ultimately thwarted by the state board of pardons.

Cooper has already laid the groundwork for clemency on a systemic level. In June 2020, just after a white Minneapolis police officer murdered George Floyd, the governor established a Task Force for Racial Equity in Criminal Justice that he asked to make recommendations for ending racial disparities in the criminal justice system. One of the subjects they tackled was the death penalty.

Ken Rose, who was a senior attorney at the Durham-based Center for Death Penalty Litigation for 35 years before retiring in 2017, gave a presentation to members of the task force in November 2020 showing two strikingly similar maps of the United States: One showing where Black people were lynched across the nation between 1883 and 1940, an another marking the execution of Black defendants between 1972 and 2020. 

Later that year, the task force published a report noting the death penalty has a “relationship with white supremacy.” They did not recommend abolishing capital punishment, but they did propose ways to narrow its use. 

North Carolina Governor Roy Cooper (Facebook/Governor Roy Cooper)

The task force also identified commutation as a remedy to address injustice, suggesting officials examine commuting sentences of people sentenced to death before July 2001, when North Carolina had a “quasi-mandatory” death penalty law that forced prosecutors to seek a death sentence in capital cases. More than two thirds of the people on the state’s death row are there because of that law, according to Rose.

“You have a lot of people on death row, still on death row, who wouldn’t be there if DAs had a choice for pleading cases to life,” he said.

Following another recommendation of the task force, Cooper created the Juvenile Sentence Review Board in 2021, which reviewed the sentences of people who committed crimes as children and recommended suitable applicants for clemency. Of the nine commutations Cooper granted in 2022, five were based on recommendations from that board. In a press release, his office acknowledged science showing children’s brains are different than adults’, and that state and federal laws treat minors differently in sentencing in criminal cases.

“As people become adults, they can change, turn their lives around, and engage as productive members of society,” Cooper said in a press release.

Kerwin Pittman, one of the members of the task force, thinks Cooper’s own political ambitions could make him reticent to use clemency more broadly. At 66 years old, he is a relatively young politician and could have decades left in public office.

“To just issue a blanket clemency to everybody, or commute everybody, he may not feel that is in his best interest,” Pittman said. “I’m sure he doesn’t want to make a misstep that’s going to come back and bite him.”

But this reluctance is frustrating to advocates who see Cooper as wasting his authority to commute sentences as he sees fit. 

“Why do you work so hard and be so shrewd to get to the top just to piss the power away?” Puckett asked. 

The exonerees

More than 20 organizations from across the state and country are working with the North Carolina Coalition for Alternatives to the Death Penalty to persuade Cooper to use his clemency powers. Members of the European Union also came to Raleigh in November to meet with Cooper and Attorney General Stein to talk about the death penalty.

But it is exonerees like Alfred Rivera and Ed Chapman who are leading the charge—men who intimately know the hopelessness of death row but escaped it once they proved they should have never been convicted. 

Rivera is both a victim of violence and wrongful incarceration. After his father was killed in a robbery when Rivera was a toddler, his mother, left alone with five children to care for, started drinking. She died from cirrhosis of the liver seven years after her husband passed away. 

“This is the toll that it took on her,” Rivera said.

Two decades later, a jury sent Rivera to death row, convicting him for murder. But he was exonerated in two years, after the state supreme court ruled he should get a new trial because jurors hadn’t heard evidence suggesting he’d been framed. 

Portrait of Alfred Rivera. Rivera was wrongfully convicted of murder and spent from 1996-1999 in prison. Portraits made in Winston-Salem, North Carolina, Monday, November 13, 2023 (Justin Cook for Bolts/NC Newsline)

Chapman, meanwhile, spent 14 years on North Carolina’s death row before being exonerated in 2008 after a judge ordered a new trial and a district attorney dropped the charges. He had been sentenced to death for two murders he didn’t commit. There were serious issues with the investigation; police had withheld evidence, and a detective later faced perjury charges for lying on the stand.

Chapman struggled after he came home. He lost a job, isolated himself and used drugs and alcohol to cope. He moved to Florida, staying in a spate of recovery houses before sleeping on the streets for about a year. 

He felt guilty about how he was living, like he was wasting the second chance he’d been given. “I let those people down that fought for me,” he said.

The guilt, shame and remorse compelled Chapman to join the commutation campaign after he moved to Durham in 2022. Now he is fighting for a cause bigger than himself.

“I’m trying to be better than I was before,” he said.

On Aug. 19, 2023, almost 17 years to the day since North Carolina’s last execution, Chapman and the coalition met at Pullen Memorial Baptist Church and marched more than a mile to Central Prison to honor those executed there.

The crowd of roughly 200 held a vigil to remember the 43 people executed by the state since 1984. Dozens of people held signs with the names of those who were killed in the execution chamber within the prison behind them. They also called for an end to death row, chanting at cars driving past them on Western Boulevard.

It was the first time Chapman had been back at the prison since getting off death row. He got chills standing outside, knowing what it was like to live on the other side of the metal doors, behind the barbed wire. But he found strength standing beside death penalty abolition advocates and people like Rivera, those sentenced to death for something they didn’t do.

“I felt that the cause for me being there outweighed my anxiety,” Chapman said.

Innocent people like Chapman and Rivera are easy cases to make to the public. It is harder—and potentially poses a greater political risk—to show grace to those who did their crimes.

Rose has represented many people on death row. He’s found that those individuals can be caring and selfless, thoughtful and resilient. They can also struggle under the weight of the mental illness and the trauma they’ve endured. 

“I look at them differently because I’ve gotten to know them,” Rose said. “I think people can do really terrible things. I think people can do monstrous things. But I do not think that that makes them a monster.”

That is a sentiment shared by Lynda Simmons, another member of the commutations coalition. Simmons’ son Brian was murdered by a teenager named James Moore, in 2004. Simmons struggled for years with relentless waves of grief over Brian’s death. But in time, trying to make sense of a senseless act, she connected with Moore, who wound up serving 15 years for second-degree murder. The two traded letters, helping one another process the trauma and grief they’d both endured. 

As they were communicating through the mail, Simmons was also doing restorative justice work with people on death row. She’d share her story with the men at Central Prison, helping those sentenced to death connect with someone who had lost a loved one to an act of violence. There, working with men like Moore who had gone to prison when they were teenagers, she could see that Moore had done something terrible, but that action didn’t define his entire humanity. 

“Listening to them, I knew that when James murdered my son, that’s what he did,” Simmons said. “I believe with everything in me, that’s not who he was.”

Simmons has always been against the death penalty, but that belief was crystallized when she went to Moore’s sentencing hearing in 2005. When she walked into the courtroom and saw Brian and Moore’s friends and family on opposite sides, she saw the impact of the shooting echoing across generations and familial lines, lives irrevocably changed by a single violent act.

“I knew that they were victims, too,” Simmons said. “They didn’t shoot my son. And I don’t believe that they raised James to shoot my son.”

“I do believe that human beings are able to change,” she continued. “And when we execute people, we rob them of the chance to change.”

Politics vs. reality

Members of the North Carolina Republican Party have long campaigned on their support of the death penalty.

In 2010, the State Republican Party sent out a mailer slamming Majority Leader Hugh Holliman, a Democrat whose teenage daughter was raped and murdered, as a “Criminal Coddler” for helping pass the Racial Justice Act, legislation that offered people a chance to get off death row—but not, as the flier erroneously claimed, out of prison—if they could prove racial discrimination had affected their charging or sentencing. 

The front of the flier read: “Meet your new neighbors. You’re not going to like them very much.”

On the back were mugshots of two men sentenced to death: Wayne Laws and Henry McCollum. 

McCollum did eventually get out of prison, not because of the Racial Justice Act but because he was innocent, like Chapman and Rivera. 

This election mailer, sent by the NC Republican Party in 2010, used Henry McCollum as an example of why people should be kept on death row. McCollum was later found innocent and exonerated. (Courtesy of Kelan Lyons)

Public support for the death penalty has declined since its peak in 1994, when 80 percent of Americans said they were in favor of capital punishment, and has been on the decline ever since. Now, just over half of Americans support the death penalty.

But in 2010, North Carolina’s politicking over capital punishment worked: Holliman lost the election, as did other Democrats targeted for their support of the Racial Justice Act. Rose said it was impossible to determine whether the misleading flier swung the elections, but it doesn’t change the fact that it was a politically salient issue at the time.

“There was a lot of political use of the death penalty for a long, long time, in a way that arguably shaped elections,” said Rose.

Today, the exonerations of people like Rivera, Chapman and McCollum are eroding public support for the death penalty further, said Rose. But that doesn’t mean Republican politicians won’t bring it up when it is to their political benefit. It resurfaced in 2017 because of the prison escapes, and has been mentioned this election cycle. 

During the first Republican gubernatorial debate, one candidate called for resuming executions under the death penalty. Lawyer and businessman Bill Graham polled second in the governor’s race a few weeks after releasing an ad advocating for the death penalty for drug dealers and human traffickers. (He still trailed the Republican frontrunner, Lt. Gov. Mark Robinson, and 42 percent of respondents were undecided, but the director of the Meredith Poll told WRAL the ads seemed to be helping Graham.)

“As a prosecutor, I went after violent criminals,” Graham said in the ad. “As governor, I’ll put ‘em in jail or in the ground.”

The Republican-controlled state supreme court has also shown a willingness to overturn precedents set by previous Democratic majorities. Earlier this year they issued new rulings on partisan gerrymandering and the state’s voter ID law, reversing Supreme Court opinions written in 2022, when Democrats were in control.

“If you were an ordinary court and you were honoring precedent and you were trying to build on that precedent and navigate that precedent, then they have a long, long way to go before they restart executions,” Rose said. “But if what you wanted to do is resume executions and kill the people that are currently on death row, you could do that, but you’d have to ignore the precedent.”

But the politics of the death penalty are often divorced from reality. The most common outcome of a death sentence in North Carolina isn’t an execution, but a long process of appeals that leads to a reversal of a sentence, said Frank Baumgartner, a political science professor at The University of North Carolina at Chapel Hill and a national expert on the death penalty.

“These things are reversed not because somebody put a paperclip on the wrong side of the paper,” Baumgartner said. “They’re reversed because evidence was withheld or because improper instructions were given to the jury, or, you know, something serious.”

Baumgartner maintains an internal database on capital punishment in North Carolina. According to his figures, 411 people have received death sentences since 1976; 190 of them, or 46 percent have been overturned.

Nationally, more than 8,500 people have been sentenced to death since 1972, Baumgartner said, wondering, “What are the odds that every one of them is guilty as charged?”

On death row, community

To live on North Carolina’s death row is to be constantly reminded of one’s mortality. The men housed on death row in Central Prison in Raleigh, can spend years, decades, entire generations together in their communal pod. Most of the people on death row have been there for 20 or 30 years. They grow old together; sometimes they die of natural causes. (There are two women on death row, incarcerated at a different prison.)

“Our memories of the dead become death row lore, significant to us, living on in our hearts and minds and dreams. We live together, die together, mourn together, and remember,” said Lyle May, who has been on death row since 1999.

That quote is included in “Bone Orchard: Reflections on Life Under Sentence of Death,” a book written by one of May’s peers, George Wilkerson, who was sentenced to death in 2006. The book, co-written with Robert Johnson, a professor of justice, law and criminology at American University, is a firsthand account of life on North Carolina’s death row. 

Most states keep those on death row in segregation, meaning the incarcerated are locked in their cells most of their days, for decades, until they win their appeals, die or are executed. But North Carolina’s death row is unusual in that it houses condemned people together. The consistent group setting makes people with death sentences in the state particularly suitable for commutation, Johnson argued, saying they have had time to develop social and emotional skills since they spend so much time out of their cells.

“You don’t get the feeling of a pressure cooker on North Carolina’s death row,” Johnson told Bolts and Newsline. “There’s the overshadowing threat of death, but there’s a lot of community.”

Alfred Rivera’s dhikr prayer beads and a ring that says Allah in Arabic. Rivera was wrongfully convicted of murder and spent from 1996-1999 in prison. Portraits made in Winston-Salem, North Carolina, Monday, November 13, 2023 (Justin Cook for Bolts/NC Newsline)

There are risks to the incarcerated if their death sentences are commuted. Breaking up the community established on death row, for one. There are also implications for their appeals. People on death row in North Carolina are entitled to attorneys in appellate proceedings. Plus, Johnson said he thinks people facing death sentences typically get more attention on their cases from criminal justice reformers and the media, compared to people serving life. 

“That is definitely a valid concern, them losing legal remedies if granted a commutation,” said Pittman, a member of the racial equity task force. “They could lose access to having automatic counsel in the appellate courts, as well as if somebody is on the row and somebody is innocent, they could lose access to their freedom through the court system.” 

Even still, Johnson said those on death row stand to gain much from clemency. They could have better access to rehabilitative programming.“We’d been told many times point-blank, ‘You are not here to be rehabilitated,’” Wilkerson writes in “Bone Orchard.”

Receiving clemency would also allow more opportunities for them to see their loved ones because of a less restrictive visitation policy, Johnson added.

And obviously, they won’t have a death sentence hanging over their heads. Only about 20 people have been added to death row since the last execution in the summer of 2006, according to the state’s roster. One of those is Wilkerson, who has been a part of the community since Dec. 20, 2006.

“We live shoulder-to-shoulder for ten, fifteen, twenty, thirty years,” he wrote in the book, “and gradually this me versus them mentality I’d walked in with, melted away, leaving only us.”

Two miles from Wilkerson’s cell, on a warm, wet December afternoon, members of the clemency campaign met in a parking lot across the street from the governor’s mansion. They sang, chanted and chatted about their support for emptying death row. Nickle said the theme of the day was “community, compassion and commutation.” 

Cooper has yet to say publicly whether he will commute the death sentences, or if he is even considering such a broad use of his clemency powers. He will leave office at the end of 2024, giving advocates about a year to build support for emptying North Carolina’s death row.

Death penalty opponents hope to persuade Democratic Governor Roy Cooper to grant mass clemency before he leaves office next year, worried that a Republican takeover could restart executions.
About 200 demonstrators marched in front of the governor’s mansion on Dec. 2, asking Gov. Cooper to commute the death sentences of those on death row. (Kelan Lyons)

Chapman and Rivera stood in a corner laughing amongst themselves as two people sang “We Shall Overcome” to the crowd. After a few minutes, the exonerees went separate ways. Rivera stepped onto the sidewalk, glancing at the signs that listed the birth date and day of execution of 43 people killed by the State of North Carolina. 

The rallies are a surreal experience for Rivera. The names on the signs aren’t just words to him. When he sees or hears the names of people still facing a death sentence, those who haven’t yet been executed, he can still see their faces, and he wonders how they’ve changed in the 24 years he has been free.

“I knew these guys personally,” Rivera said. 

He feels a sense of survivor’s guilt for having gotten off death row. He still thinks about what it was like living there, “the horrible conditions,” having to reckon with “how I went from that to this,” as he gestures at the wide open parking lot, the community of supporters. 

“Is it fair that people are still suffering under those conditions?” he asked. “I think about that, me being free and at these events.”

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Western Pennsylvania Prosecutor Makes His County an Epicenter for the Death Penalty https://boltsmag.org/washington-county-pennsylvania-death-penalty/ Fri, 06 Oct 2023 16:48:35 +0000 https://boltsmag.org/?p=5318 Washington County accounts for about a quarter of the state’s active death penalty cases under Jason Walsh, who became DA in 2021 and is seeking a full term this month.

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In February 2021, two men wearing masks entered a convenience store in Donora, Pennsylvania, and shot the clerk, Nicholas Tarpley, six times. Months later, police arrested Sidney McLean and Devell Christian, and charged them with murder. Washington County District Attorney Jason Walsh announced that he would seek the death penalty against them should they be convicted. 

Then that December, police arrested a third suspect, Jah Sutton. Video did not show her at the scene of the crime but investigators connected her to the killing by claiming she was dating McLean and saying they discovered her DNA on a bullet casing found at the store. Walsh announced that he would prosecute Sutton for capital murder and also seek the death penalty against her.

In a preliminary hearing, a state trooper admitted there was no additional evidence against Sutton, testifying that he had not found anything on her cell phone tying her to the killing of Tarpley. Sutton’s lawyer, Timothy Dawson, has insisted there was no connection, pointing out that Sutton was not in fact McLean’s girlfriend; she had previously admitted to an investigator that she knew him by a different name and that police had only seen her with him because she was a sex worker. “The location of DNA on a shell casing does not establish anything other than at some unknown point in time, this Defendant handled or touched that casing. Nothing more,” Dawson wrote in a court filing. 

In an interview, Dawson said that he thought Walsh had overstepped, telling Bolts, “There’s not sufficient evidence to even prosecute a murder charge against her, let alone a capital case.” 

Ryan James, a lawyer for Christian, Sutton’s co-defendant, filed a motion in May arguing that Walsh should be disqualified from prosecuting the case because “there is more than just suspicion that the death penalty is being sought by this [DA] for political gain.” In his motion, James alleged that Walsh chose to seek the death penalty against Sutton to pressure her into giving information about her co-defendants. “[M]onths before being charged, Ms. Sutton was detained, badgered, and threatened by law enforcement,” James wrote, claiming police told her that if she didn’t cooperate she would lose custody of her child and go to jail, where she’d be brutally killed by a drug gang.

Since taking office in 2021, Walsh has made a name for himself because of how frequently he decides to pursue the death penalty. In his first year, he sought the death penalty in five out of nine of the county’s murder cases. To date, his office is responsible for 12 capital cases that have yet to go to trial, making up approximately a quarter of the total pending death penalty cases in Pennsylvania. Washington County only makes up approximately two percent of Pennsylvania’s population. 

Walsh, a Republican who is seeking a full term on Nov. 7, has defended how often he seeks the death penalty, including in the case against Sutton. Last year he told KDKA News, “I’m very consistent and will seek the highest form of punishment for the most heinous crimes.” Walsh did not respond to multiple requests for comment for this story, but this week his office filed a motion for a gag order to bar lawyers on the Christian case from speaking about it as well as another motion seeking to punish them with sanctions over their attempt to remove him from the case. His motions also cite the inquiries he received from Bolts.

At the same time, Pennsylvania has been moving away from the death penalty over concerns about the cost of capital cases, racial biases, and its overall ineffectiveness in reducing crime. There’s been a moratorium on executions in the state since 2015, meaning that anyone sent to death row won’t be executed until it’s lifted. Earlier this year, Governor Josh Shapiro called on the Pennsylvania legislature to abolish the death penalty. 

Marc Bookman, executive director of the Atlantic Center for Capital Representation, an organization that works on death penalty issues, said that Walsh is “abusing his discretion by seeking the death penalty in every case he can,” and his use of the death penalty is straining Washington County’s resources. “Washington County doesn’t have qualified lawyers for these capital cases, and it’s terribly expensive to taxpayers,” he said.

The death penalty has emerged as a key issue in the local DA race this year as Walsh faces Christina DeMarco-Breeden, a prosecutor in nearby Somerset County who is from Washington County. DeMarco-Breeden says the death penalty should be used for the worst crimes and criticized Walsh for overusing the punishment for his own political gain while depleting taxpayer dollars to fund prosecutions. “It is my position that he’s politicizing the death penalty,” she told Bolts

Walsh took over as Washington County’s DA in 2021 after the death of his predecessor, Eugene Vittone. During Vittone’s nine years in office, he sought the death penalty just five times. Prior to Walsh’s role in the DA’s office, Walsh worked in private practice representing clients in criminal cases, DUIs, and white collar crime.

Walsh’s capital cases are primarily focused on infants who died under a variety of circumstances, with seven people facing the death penalty for such charges. In December 2022, he said he would pursue the death penalty against a couple after their baby died from fentanyl ingestion; one of their lawyers said that the poisoning was accidental, which would have disqualified them for the death penalty because the punishment requires the killing to be intentional. Another of Walsh’s death penalty cases involves a couple who were found to have hidden their baby in a wall after he died; they say he died naturally and hid him because they could not afford to bury him. Walsh is also prosecuting a man who said his baby died after he fell on top of him; child welfare investigators said that was likely not the case and that his injuries denoted physical abuse. 

As deputy DA in Somerset County, DeMarco-Breeden is currently seeking the death penalty against one defendant, Paul Kendrick, who is accused of killing a prison guard. DeMarco-Breeden said that she thinks the case warrants the death penalty because there’s strong evidence of the brutal killing. “I believe it’s the first degree case, it’s actually on, it’s on surveillance video. I think the jury is going to have a really hard time watching it,” she said. 

If elected Washington County DA, DeMarco-Breeden said she would review each capital case to see if the evidence is sufficient for a death sentence. “Ethically, I have to,” she said. “I think you know, as prosecutors we are bound by the law, we are bound by only proceeding on charges that we believe we can prove beyond a reasonable doubt.”

Washington County is located on Pennsylvania’s western border and is home to roughly 209,000 people, about one fifth the size of Allegheny County, which is home to Pittsburgh. Yet Walsh has sought the death penalty much more aggressively than his counterpart there; Allegheny County has just five pending death penalty cases, despite having a higher murder rate.

Critics have said that Walsh’s decisions to seek the death penalty will be costly to Washington County taxpayers. It costs much more to prosecute death penalty cases than other murder cases that are non-capital. Researchers haven’t studied how much death penalty prosecutions in Pennsylvania are but in Kansas, for example, it costs an average of $395,800 to take a death penalty case to trial and appeal, as opposed to $99,000 for non-death penalty cases. Indiana death penalty trials cost an average of $789,000, while the average cost of a life without parole case is $185,000, according to researchers. 

Compounding the problem, Pennsylvania is the only state in the country that doesn’t provide state funding for indigent defense. Instead, each county is responsible for budgeting for public defenders, and because the majority of capital defendants are indigent, or too poor to afford their own attorney, they rely on public defenders to represent them. There are 12 pending capital cases but only 10 lawyers in Washington County who are qualified to work on death penalty cases, a database tracking qualifications shows. 

Historically, Pennsylvania death sentences haven’t held up in appeals. More than half of the 408 people sentenced to death since the beginning of the modern death penalty era in 1976 have had their sentences reduced on appeal and six people have been exonerated.

New death sentences have declined over the years. Since 2015, just nine people have been sentenced to death. Of the 100 people currently on Pennsylvania’s death row, just one is from  Washington County. 

Bookman with the Atlantic Center says Walsh’s use of the death penalty will spark long and costly litigation. “It’s likely these cases will end up being reversed and retried years from now, opening up old wounds for the victims and costing even more money to the taxpayers.”

Pennsylvania Votes

Bolts is closely covering the ramifications of Pennsylvania‘s 2023 elections for voting rights and criminal justice.

Explore our coverage of the elections.

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Alabama Failed to Carry Out Its Last Two Executions. It’s Trying Again This Week. https://boltsmag.org/alabama-executions/ Tue, 18 Jul 2023 16:41:40 +0000 https://boltsmag.org/?p=4941 This story was supported by a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights, in conjunction with Arnold Ventures. Caution: This story describes... Read More

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This story was supported by a grant from Columbia University’s Ira A. Lipman Center for Journalism and Civil and Human Rights, in conjunction with Arnold Ventures.

Caution: This story describes executions and includes an image from an autopsy. 


Under Alabama’s execution protocols, the warden of the Holman Correctional Facility, which houses death row in the state, is supposed to tell condemned prisoners when their execution has been scheduled “prior to any announcement by news media.” But in late May, James Edward Barber found out about his impending execution when the news broke on TV.

Barber’s lethal injection, which is scheduled for Thursday, is set to be the first in the state since a series of long and bloody executions led to a moratorium and review of the state’s protocols for putting people to death. His lawyers, who say Alabama officials didn’t inform him of his execution date until a day after it was announced on the news, argue it showed the state can’t follow its own rules and has done little to fix the problems highlighted by last year’s executions. 

“Defendants simply cannot, or will not, carry out their own [lethal injection protocol],” they wrote in a motion last month attempting to stop his execution.

The Alabama Department of Corrections (ADOC), which conducted the recent review of its own death penalty protocols, says it found “no deficiencies” in its execution methods. But the agency has not released its full assessment. The state has also adopted some new protocols, but those rules are shrouded in secrecy.

As the state prepares to resume executions this week, advocates say the new rules, to the extent the state has disclosed them, also appear to increase the likelihood that prisoners will endure torturous executions. 

“What we’re concerned about is Alabama’s capacity to carry out these executions in a humane and constitutional manner,” said Angie Setzer, a senior attorney for the Equal Justice Initiative, a nonprofit organization that advocates on behalf of death row prisoners. “Given what we’ve seen, I think there’s real reason for the public to not have that confidence [and] to be concerned about what the state is doing.”


Executioners in Alabama have long struggled with inserting IVs to deliver lethal drugs. In 2018, executioners punctured Doyle Lee Hamm with needles for two-and-a-half hours before calling the execution off because they could not access a vein. His attorneys had warned that the state would encounter problems because Hamm’s veins were compromised from cancer. 

Photographs of Hamm taken afterward showed needle wounds all over his body, including six on his groin, which was badly bruised where executioners had attempted to access a central vein. The area leaked blood so heavily during the execution that it soaked through the sterile draping and it had to be changed, according to a legal filing recounting Hamm’s experience.

It took executioners more than three hours to execute Joe Nathan James Jr. last July. By the time the curtain to the death chamber’s witness room opened, he was already on the gurney with his eyes closed and did not move or speak, according to media witnesses. John Hamm, the ADOC Commissioner, told reporters that “nothing out of the ordinary” happened, but a spokesperson for the department said the next day that the delay was due to problems setting the IV line. Doctor Shante Hill, the state pathologist who conducted the official autopsy, reported needle puncture marks in his elbow, wrists, and hands.

Photographs showed what appear to be two horizontal cuts on the inside of James’ elbow. Hill described those marks as “superficial abrasions” but Doctor David Pigott, a professor in the Department of Emergency Medicine at the University of Alabama School of Medicine in Birmingham, who submitted an affidavit on behalf of Barber, said they were more likely evidence of executioners’ departure from traditional IV access strategies and showed an attempt to perform a cutdown procedure on James. The procedure, which is not authorized under Alabama’s protocol, involves cutting deeply into the skin to find a vein and is typically performed by a surgeon during life-threatening emergencies when other attempts to gain IV access have failed, Pigott told Bolts. He said that he agreed with Hill’s assessment but thought that the cuts were so shallow because of the inexperience of the people trying to perform a cutdown.

“They looked like hesitation marks, like somebody was going to cut it and then they decided against it, because there’s clearly cuts there that are very superficial, like barely through the skin,” Pigott said. ADOC has not attributed those marks to another source, such as James’ movements on the gurney, and has maintained that executioners did not perform a cutdown procedure. 

In court, the state has cited the affidavit of Doctor Boris Datnow, a pathologist who was hired by human rights group Reprieve to conduct a private autopsy of James. He determined there was “no evidence that a cutdown procedure was performed or attempted on Mr. James.” Datnow, who said he has performed cutdowns himself in addition to autopsies on people who had undergone the procedure, told Bolts that the marks were merely “simple superficial scratches” and said reports that they were evidence of a cutdown are “absolute rubbish.” But asked about Pigott’s claim that there were hesitation marks, Datnow said he was not familiar with the term. “What mark? I’ve never heard the term hesitation,” he said. Pigott, however, wrote in an email to Bolts that the term is frequently used in forensics and emergency medicine. When asked whether pathologists should know what hesitation marks are, Pigott responded, “I would think so.”

Horizontal cuts shown in photos taken after the execution of Joe Nathan James Jr., which Pigott says indicates the execution team attempted a cutdown procedure. (Image from legal filings)

 Two months after James’ execution, Alabama unsuccessfully attempted to execute Alan Eugene Miller. According to Miller, who detailed his execution in legal filings, two men wearing scrubs stuck Miller in his right elbow, then right hand, left elbow, right foot, right inner forearm, and his right and left arm. Miller said his entire body shook when the needle was inserted into his right foot. It “caused sudden and severe pain,” and “It felt like I had been electrocuted in this foot,” he said. At one point, one of the men used the flashlight application on a smartphone in an attempt to find a vein. After none of those attempts worked, the executioners left the room and ADOC staff adjusted the gurney from a horizontal to vertical position, leaving Miller, who was strapped in and weighed 350 pounds, hanging in the air for 20 minutes. 

“No one explained to me why I was being raised into a vertical position or why the men in scrubs had left the room,” said Miller, who felt “nauseous, disoriented, confused, and fearful” as state employees stared at him from the observation room. More than 90 minutes after attempts to set the IV lines began, the execution was canceled. 

Two months later, on Nov. 17, 2022, ADOC failed to execute Kenneth Eugene Smith, again because executioners could not establish IV access. The team spent two hours sticking needles all over his body before resorting to trying to insert a thick needle underneath his collarbone, which also was unsuccessful. In an affidavit, Smith said that the multiple punctures “caused me severe physical pain and emotional trauma.”


Days after Smith’s failed execution, Alabama Governor Kay Ivey ordered a moratorium on executions and a “top-to-bottom” review. “I will commit all necessary support and resources to the Department to ensure those guilty of perpetrating the most heinous crimes in our society receive their just punishment,” she wrote in a press release at the time. “I simply cannot, in good conscience, bring another victim’s family to Holman looking for justice and closure, until I am confident that we can carry out the legal sentence.”

But unlike other states, which have ordered independent inquiries after executions in which something appeared to have gone wrong, Alabama officials opted for an internal review by corrections officials. Tennessee officials tapped an outside law firm, whose inquiry spanned seven months and 26 witnesses and resulted in a damning 178-page report that showed the state repeatedly failed to follow its own execution protocols, which eventually led to the firing of two top corrections officials. Alabama’s review, by contrast, lasted just over three months, was conducted by the same department responsible for last year’s executions, and the findings have yet to be made public.

“In those states, we saw a real genuine commitment to getting it right to avoiding sort of a spectacle of prolonged suffering and failure,” said Setzer with EJI. “And Alabama really didn’t do anything. There’s no transparency, no record of what was done. No independent third party review, no outside evaluation, no identification of any problems or proposed remedies.”

Former Alabama Governor Robert Bentley, who oversaw eight executions during his tenure from 2011 to 2017, doubts that an investigation ever even took place. “It’s just my belief that they have not done what they should do because it does not take that long to have an investigation on something like that,” Bentley, who is a Republican like Ivey, told Bolts

Governor Ivey’s office, Attorney General Steve Marshall, and ADOC officials did not respond to a list of questions from Bolts. The state has denied that team members made errors in the executions that preceded the moratorium and that the protocol review enables it to resume carrying out smooth executions. 

“There were certainly two executions in the fall of 2022, in which the state wasn’t able to gain IV access,” an assistant attorney general said during a court hearing on Monday. “But those two can’t be looked at as excluding all the rest of history, because history shows that that’s an aberration and not the rule.”

Alabama has made several changes to the state’s execution protocols since last year, including a new rule that shifts responsibility to the governor for scheduling executions and setting the “time frame” during which they take place. For Barber, who was sentenced to death for the 2001 murder of Dorothy Epps, Ivey has selected a 30-hour period between 12:00 am on July 20 and 6 am on July 21. Previously, that window was narrower, expiring at midnight on the day for which a death warrant was issued. 

“This change will make it harder for inmates to ‘run out the clock’ with last-minute appeals and requests for stays of execution,” wrote Hamm, the ADOC commissioner, in a one-and-a-half page letter to Ivey explaining the results of his department’s review.

Alabama Governor Kay Ivey (Facebook.com/KayIveyAL)

Advocates for death row inmates say the rule change increases the danger that their clients will experience lengthy periods of torture.

The state was forced to stop past executions during which IV team members could not find a vein because of the deadline. “They only stopped in those cases, because they were obeying the law, and they weren’t going to carry out the execution after midnight. Now that back control is completely removed,” said Brian Stull, a senior staff attorney with the ACLU’s Capital Punishment Project.

“Now that that time period is extended, and they don’t have to complete it by midnight, who knows how long a person could be tortured in the state of Alabama before they’re finally executed?” 

Another change involved expanding the state’s “pool of available medical personnel for executions” and obtaining new medical equipment, according to Hamm. As part of the revised protocol, ADOC now requires that IV team members be “currently certified or licensed within the United States.” Yet, the state does not elaborate on what certifications or licenses are mandated. 

In court, Barber’s legal team has uncovered more information about Alabama’s plans for their client. While state officials did not initially disclose the new equipment ADOC is planning on using, lawyers have since learned that it only plans to add more straps to restrain prisoners. But medical professionals say that other equipment, such as an ultrasound machine, is typically used for finding veins in tricky situations. 

“In my experience, if a nurse was unable to set an IV line in a patient after 15 minutes and three needle sticks, that nurse would need to find a better experienced person to set the line, and/or employ enhanced equipment such as ultrasound,” wrote Lisa St. Charles, a surgical nurse who has set more than 1,000 IV lines, in an affidavit.

In June, Terry Raybon, the warden at Holman who oversaw the previous three executions, submitted an affidavit saying that he had participated in interviewing and selecting new members for the IV team “with extensive and current experience setting IV lines.” 

“As part of the interview process, candidates were asked about their relevant experiences, licenses, and certifications,” Raybon wrote, saying that none of the current personnel had participated in James, Miller, or Smith’s executions. The selected team appears to consist of  paramedics, advanced EMTs, and a nurse with a Florida license, according to documents produced by ADOC as part of ongoing litigation. Presented with their licenses and certification in a hearing earlier this month, Lynn Hadaway, a Georgia nurse who has worked on hospital IV teams, testified that none of the documents alone are proof that they are trained in setting an IV line. “Certification does not—and licensure does not equal competency,” she said during the hearing. 

Notably, ADOC has not released the certifications and licenses of the previous IV team members, so it’s unclear whether the current team’s differ. The department did not reply to questions from Bolts about their qualifications.

Barber’s lawyers say they still have reason to question the qualifications of the execution team. They learned the identity of one member because her name was visible under a piece of white paper produced as part of discovery in the case, and found she had been arrested for fraud related incidents. “If she has been arrested for fraud-related instances, it suggests that maybe her credentials are not necessarily what they are or what she represents them to be,” argued Stephen Spector, one of Barber’s lawyers, in an evidentiary hearing on July 5. “And if she has not necessarily exercised judgment because that person has been arrested for fraud-related instances, I don’t think you could necessarily give that person the benefit of the doubt when it comes to carrying out such an important task.” Barber’s team has not revealed the woman’s identity.


To avoid the risks of a painful lethal injection, Barber has requested to be executed by nitrogen hypoxia, or suffocation by nitrogen gas, a method that has never been used in an execution. Prison officials have said they’ve been preparing for executions with nitrogen since the Alabama legislature authorized the method in 2018, but the state has not released any protocols for using it in executions. Last September, a lawyer in Attorney General Steve Marshall’s office said it was “very likely” the state would be able to execute Alan Eugene Miller that month and had even asked Miller to be fitted with a gas mask, but backtracked shortly after, saying the state was not ready. Then in February, Hamm said ADOC was “close” to finishing protocols around using nitrogen in executions, saying they should be completed by the end of this year. 

The state of Alabama has requested to execute Barber with nitrogen should a judge rule that it cannot use lethal injection. However, during an evidentiary hearing earlier this month, a state attorney told a federal district court judge that Alabama was still not ready for executions with nitrogen. The judge ultimately rejected Barber’s request to stop his lethal injection, pointing to the changes in execution protocols since last year. “These intervening actions cut off the emerging pattern of past practices that could have elevated Barber’s claims from purely speculative to actionable,” the judge wrote. 

Barber’s team appealed the decision and on Monday, argued in front of the 11th U.S. Circuit Court of Appeals that appointing a new IV team without releasing more details on their experience provided little reason to think their client’s execution would be different than the previous three. 

“All the people the state chooses to staff the IV team are fungible and the same,” said one of his lawyers. “It’s like picking up a different can of soda off the shelf from a factory that isn’t passing safety inspections. The state used the same standards of quality control and they’re going to get the same product.”

The judges are expected to make their ruling later this week. Barring intervention from the courts or Ivey, who has the authority to grant Barber clemency, Alabama will move forward with the execution at 6 p.m. on Thursday. 

In testimony, Barber has said that because of his faith, he’s not afraid to die. “A little over two decades ago, I was made a promise, and through that promise I have no fear of death,” he said during an evidentiary hearing. “God promised that I would receive eternal life, so death is just a transition for me.”  

In the months since learning of Alabama’s plans to execute him on the news, Barber has kept in close contact with his family. Teresa Krulicki, his cousin, and Denise Kisiel, his niece, told Bolts that they talk about everything ranging from updates on his appeals to step-by-step instructions on how to make his red sauce, which she is planning to make in the week following the execution. Neither of them were able to make the trip to Atmore, where Holman is located, because of a scheduling conflict but said they will be together, watching the news closely on Thursday.

“It’s kind of a numbing feeling right now, the whole week feels really numb to me,” said Kisiel. “Talking to him, obviously he’s at peace with it and he comforts me but it’s very numbing, you almost don’t know how to feel.”

Krulicki added, “We’re so sorry for any pain that has been caused to the Epps family, and we are definitely suffering. You know, maybe not as much as them, I can’t say that. But we are suffering too. You know, two lives have been lost.”

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The Death Penalty on Trial in Louisiana https://boltsmag.org/the-death-penalty-on-trial-in-louisiana/ Mon, 17 Jul 2023 20:02:00 +0000 https://boltsmag.org/?p=4931 LaDerrick Campbell has an IQ in the 60s. His defense counsel described him as “the most profoundly mentally ill client” they had ever encountered. Daniel Blank’s confession was coerced; one... Read More

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LaDerrick Campbell has an IQ in the 60s. His defense counsel described him as “the most profoundly mentally ill client” they had ever encountered. Daniel Blank’s confession was coerced; one of the people he was convicted of assaulting explicitly stated that Blank was not his attacker. Jeremiah Manning suffers from a profound intellectual disability, and one of the sons of the woman he killed has testified to the state legislature that executing him will not bring his family solace. Jarrell Neal’s uncle killed two men as he waited unaware in the backseat of the car, then testified against him in exchange for a lesser sentence.

Each of these men await execution in Louisiana. A few weeks ago, 56 out of the 57 people currently on the state’s death row —including Campbell, Blank, Manning, and Neal—asked Democratic Governor John Bel Edwards to spare their lives by commuting their sentences to life without parole. Edwards, who is Catholic, recently announced he cannot square the death penalty with his pro-life views. It is one of the biggest mass clemency requests in American history, in a state where only two death sentences have been commuted in the past 50 years.

Clemency is often conceived of as a discrete and individual mercy—as an exception, the opposite of policy. On death row, we picture it as an eleventh-hour decision to spare a person’s life following efforts by advocates to highlight the tragic or unjust circumstances of their case. But here, the petitioners say that in highlighting people’s stories, they’re not trying to persuade public officials to handpick which of the 57 is most deserving of mercy. 

Instead, they’re hoping to showcase the systemic disparities that undergird each of their cases. What if clemency were a form of policy, they ask—not an individual act, but a collective response to the barrage of injustices that have made the state’s death row a cross-section of its poorest and most marginalized groups?

The U.S. Supreme Court has declared that executing someone with an intellectual disability is unconstitutional, a criterion that fits 40 percent of the people on Louisiana’s death row. Thirty-nine of the 57 have been diagnosed with brain damage or serious mental illness. Three quarters are people of color, the vast majority of them Black. Many allege prosecutorial misconduct and sorely deficient legal support.We are executing the most vulnerable people in our population,” said Calvin Duncan, an exoneree who served as a jailhouse lawyer to many on death row for about 19 of the 28 years he spent wrongfully locked up. 

Time is running out. Edwards leaves office in early January, and the frontrunner to succeed him staunchly supports the death penalty. The next few months will determine whether Edwards translates his philosophical opposition to capital punishment into action by trying to speed up the process and by commuting every death sentence he can before his term is up. 

The petitioners must first convince the Louisiana Board of Pardons, which must recommend cases to the governor before he can grant clemency and has already signaled the process may be lengthy, though Edwards, who has appointed the board’s five current members, can ask the board to consider capital cases in a meeting. His office did not respond to a direct question about whether he would do so

Not only is this a last-ditch effort to forestall the state executions of these 57 people—it’s also a call for Louisiana to end the use of the death penalty once and for all, in keeping with the growing number of states that have abandoned the practice. In the last six years, five state legislative attempts to repeal capital punishment have failed.

“It’s an indictment on the system,” said Cecelia Kappel, an attorney for the Capital Appeals Project, the firm that organized the petitions. “This entire system is broken, and I would want to see the death penalty in Louisiana be on trial, as opposed to our individual clients and their individual circumstances.” 


Much of the debate around capital punishment focuses on wrongful convictions. Louisiana’s death row has a long history of exonerations, where people’s convictions are reversed after new evidence comes to light suggesting they did not commit the crime for which they were sentenced to die. But these clemency petitions argue that, whether the petitioner maintains their innocence or not, the underlying factors present in each case mean they should not be put to death.

Louisiana’s application of capital punishment is deeply rooted in racial bias, going all the way back to its origins: Enslaved people comprised thirteen of the first sixteen executions on Louisiana soil. The state historically consigned a high number of people to death, but there hasn’t been an official killing since 2010, when a death row prisoner waived his right to appeal his case. “We are moving away from the death penalty as a country, and Louisiana is no exception,” Robin Maher, executive director of the Death Penalty Information Center, told Bolts. In the two parishes that historically imposed the death penalty most often—including East Baton Rouge, once called Louisiana’s “official slaughterhouse” because all state executions took place there—there has been no new death sentence handed down since 2015. 

Prosecutors in Louisiana have great discretion on whether to seek the death penalty, and only do so in a tiny fraction of eligible cases. Take the case of Jarrell Neal, one of Kappel’s clients, who rode along with his uncle and brother while they went to settle a drug-related dispute. According to Neal’s clemency petition, he was waiting in the car unaware while his uncle shot two people to death. But as they drove away, his uncle handed him a gun and told him to shoot at the officers pursuing them, and Neal complied.

Neal’s uncle agreed to testify against him, pled guilty to manslaughter and is now out of prison. His brother was ultimately prosecuted for second-degree murder. But for Neal himself, prosecutors sought the death penalty, even though he did not hit or injure the officers he shot at. “He was represented by one lawyer, no investigator, no co-counsel, no paralegal,” Kappel told Bolts. Neal’s defense presented no evidence, and a jury sentenced him to death after deliberating for less than two hours. “I feel tremendous guilt that my brother has had to take the fall for my uncle and me,” Neal’s brother wrote in a 2018 affidavit. 

Louisiana governor John Bel Edwards has expressed opposition to the death penalty based on his values. (Facebook/Gov. John Bel Edwards)

A 2015 study on racial discrepancies in Louisiana’s death penalty cases by the political scientist Frank Baumgartner found a strong connection between the race of the victim and the likelihood of a capital sentence. For instance, although Black male victims accounted for 61 percent of all homicides between 1976, the year the Supreme Court reinstated the death penalty, and 2015, only three people—none of them white—have been executed for killing a Black man during that time. Meanwhile, a person of any race was 48 times more likely to be put to death for killing a white woman than for killing a black man. The last time a white person was executed for killing a Black person was in 1752, over a half century before the Louisiana Purchase.

For every harrowing statistic you can throw out about death penalty disparities in Louisiana, Calvin Duncan witnessed it personified in the men he knew on the row. “It’s not textbook stuff to me,” he told Bolts. “I worked with those guys for 19 years…I got to see them grow up. I watched them grow old. I saw the vulnerable side of them and they all wanted something better in life.” 

Working as a jailhouse lawyer at Angola State Prison after his conviction in 1985, Duncan pored over their legal files and saw evidence of innocence, abuse, poverty, trauma, disability, and insanity. He saw coerced confessions. He saw just how young many of the men had been when the state sentenced them to death. Though Duncan was never on death row, there was a lot of overlap with his own case—Duncan is Black, and he was only 20 when he was arrested for a murder he didn’t commit. He ultimately lost 28 years, five months, and two days to prison before being freed in 2011 and fully exonerated in 2021. 

And for many on death row, it seemed like Duncan was the first person who had really looked closely at their legal case. “Nobody on our death row came from a family that had any money to get adequate representation,” he told Bolts

Louisiana death row prisoners secured the right to have lawyers represent them in their post-conviction appeals in 1999, and access to pro bono legal services has also expanded significantly in the last few decades. The fact that qualified and well-resourced lawyers are now scrutinizing these cases has led to an astonishing 82 percent of convictions being overturned on appeal and at least 9 exonerations since 1999. All of this costs a lot—over $15 million a year, according to a 2019 report by Bill Quigley, an emeritus professor at Loyola Law School. The money for death penalty representation stems largely from the state’s public defender fund, hoovering up nearly 10 percent of its budget for just 11 cases in 2018 and 2019, local news site WDSU found. Capital cases “threaten the solvency of the entire Louisiana statewide public defense system,” Remy Starns, then the head of the Louisiana Public Defender Board, told the site.

“Money is the blood flow of the legal system,” Quigley, who also worked on pro bono capital appeals in the 1980s and 1990s, when none of the current infrastructure yet existed, told Bolts. “Louisiana executed quite a number of people” back then, he said, and “those people were represented in the most pathetic way possible.”

But even with access to representation, people on death row often fail to get courts to give their case a second look—even when they evince traits that should make them ineligible for execution. “There are very strict procedural requirements for when you need to raise a claim—and many of these individuals are simply unable to get back into court to present evidence of their intellectual disability,” said Maher. 

Clemency is the chance to right past wrongs when every other avenue has failed. “Clemency power dates back hundreds of years, to a time when an all-powerful monarch possessed the absolute power to punish or pardon,” Maher told Bolts. “It is an act of grace, an act of mercy, but it can also be an act of justice.”

At first, many on Louisiana’s death row felt strongly ambivalent about the prospect of a mass clemency request. Clemency can reduce the consequences of a conviction, but it doesn’t change the conviction itself. Some want a new trial and a chance for release. Settling for life without parole is a bitter pill to swallow when you have evidence that you didn’t even do the crime for which you were sentenced to death. “This is not justice for them. These people have been wronged from beginning to end,” Kappel said.


As hard as it has been to conceptualize the prospect of life without parole as a win for people who never got a fair trial to begin with, Kappel said it was important to recognize the “unique opportunity” that Edwards’ admission has afforded those currently living on death row.

Clemency is generally understood as a case-by-case practice, but there is some precedent for a mass request: notably, Illinois in 2003, when the outgoing governor, Republican George Ryan, commuted the sentences of 167 people. 

That process in Illinois started with a request very similar to the one lawyers made on behalf of those condemned to die in Louisiana. Lawrence Marshall, a professor at Stanford’s law school who at the time was the legal director of Northwestern University’s Center for Wrongful Convictions, recalled in an interview with Bolts the conundrum he and his colleagues faced in the lead-up to the request: “Did we go in and ask for a blanket clemency? Or did we instead cherry-pick a few particularly sympathetic cases, with the hope that those would get some real attention in ways that a blanket commutation might not?” 

They ended up choosing a blanket clemency request, and Marshall’s reason echoes those of the Louisiana advocates. “It felt like a once-in-a-lifetime opportunity,” he said.

Marshall and his fellow lawyers went all out. They staged a thirty-mile relay from a prison to the governor’s mansion where 31 men who had been wrongfully convicted, sentenced to death, and later exonerated each walked a mile, carrying a piece of parchment addressed to Ryan. It garnered national press attention. Later that night, they put on a production of the play The Exonerated, which features A-list actors telling the story of wrongfully convicted people. “There was only one person watching the play, and that was the governor,” he said. “The 150 other people were watching the governor watching the play, looking for any signs into what he was thinking.” 

Ryan eventually granted clemency to all 167 people on death row, even bestowing a full pardon on four. “My concern basically was if I had left office and didn’t do anything about it and woke up one morning and found some innocent person had died, I would have to live with that the rest of my life,” he said later.

Marshall acknowledged how focusing on wrongfully convicted people can scan as an “implicit endorsement” of capital punishment for the many people on death row who are guilty of the crimes for which they were convicted. Here, though, it proved strategic. “Wrongful convictions was definitely the road into his thinking. But once we got in there then we convinced him, I think, that if the system can’t get it right, as to who did it,” he said, “just the pure objective fact of who did it—How can we trust that system?” 

Like Ryan in 2003, Edwards is in the final months of his gubernatorial tenure and has expressed qualms about the death penalty. But it’s hard to know whether he will take similar action for the 57 people currently on death row. Edwards, of course, is not the all-powerful monarch of yore—in fact, he lacks even the outright power that Ryan had to commute capital sentences in Illinois. The Louisiana state constitution says that the governor can only grant clemency “upon favorable recommendation of the Board of Pardons.” Even if Edwards is inclined to grant blanket clemency, he lacks the legal authority to do so to everyone who applied, Quigley said, though he could endorse a blanket approach once people’s petitions make it to his desk.

This means each person who petitioned would need to pass an initial review, undergo a Division of Probation and Parole investigation, and then attend an individual pardon board hearing before the five-member board, most likely with victims’ family members in attendance. This process can generally take as long as a year, according to the board’s executive director. The board includes two longtime state corrections employees, a former district attorney, a public defender-turned-judge, and the official victims’ advocate. If a majority of members vote to recommend commutation, Edwards can still decide not to grant it, but the reverse is not true: Edwards is barred from pardoning anyone who the board declines to endorse. 

Chair and Vice Chair of the Louisiana Board of Pardons with Louisiana Department of Corrections Secretary James Leblanc (Facebook/Louisiana Board of Pardon & Committee on Parole)

Meanwhile, at least one local prosecutor has spoken out against the mass request for being too hurried. In a letter to the pardons board, East Baton Rouge DA Hillar Moore said that the process is not allowing enough time for prosecutors to prepare opposing arguments for any pardon board hearings that may take place. He also argued that the news of the clemency applications has “caused significant confusion” for several victims’ families.

But groups like Louisiana Survivors for Reform will be trying to counter the narrative that all crime victims want vengeance for the violence perpetrated against them or their loved ones. “The death penalty feels like one of the greatest lies that is told to victims, in terms of transparency around finality, in terms of ‘closure,’” said Katie Hunter-Lowrey, an organizer with the Promise of Justice Initiative who coordinates the Louisiana Survivors for Reform coalition. She noted that capital appeals can stretch on for decades, forcing families to relive the trauma of their loved one’s murder over and over in court. “So many of the survivors that I interact with and victims’ loved ones want what happened to them to never happen to anyone else again, and the death penalty is not a deterrent. And it’s not violence prevention.” 

At least two close relatives of victims oppose the execution of the person sentenced to death for their loved one’s murder; others strongly support it. 

Edwards, who leaves office on Jan. 8, hasn’t yet issued any official statement on the 56 clemency petitions. According to the board’s policy for capital cases, the governor can schedule hearings and set a case on the agenda; Edwards’ office responded to Bolts’ request for comment but did not answer whether the governor would use this authority to expedite cases. On June 14, he said at a Rotary Club meeting that he would not try to influence the pardon board’s decision-making process: “I think they have to exercise their own judgment.” 

Louisiana Attorney General Jeff Landry, a Republican who styles himself as tough on crime and supports the death penalty, is currently the leading candidate in the race to succeed Edwards. He has indicated that the attorney general’s office will oppose any and all clemency applications. But his gubernatorial run could also temper his hand. Kappel pointed out that Landry’s strongest opponent, Democrat Shawn Wilson, has already come out against capital punishment. 

“I think that we are moving away from the death penalty, and it is not the winning campaign issue that perhaps in the past it was,” she said. 

Duncan, for one, is hopeful that the increased attention to these cases that the parole hearings will bring may contribute to a shift in Lousianans’ consciousness about capital punishment—and that the board itself will recognize what he already knows to be true about the men on death row.

“I think if the public knew, if the outside world knew that these are the people that we consider fit to execute—I think they would really change their minds.”

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Exonerees Sound the Alarm on New Florida Law Allowing Death Sentences by Split Juries https://boltsmag.org/florida-death-row-exonerations-unanimous-juries/ Wed, 26 Apr 2023 16:24:08 +0000 https://boltsmag.org/?p=4588 Herman Lindsey braced himself for news that he would be sentenced to death as he sat inside a courtroom in Broward County, Florida in 2006. A jury had convicted Lindsey... Read More

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Herman Lindsey braced himself for news that he would be sentenced to death as he sat inside a courtroom in Broward County, Florida in 2006. A jury had convicted Lindsey of capital murder for the 1994 killing of a Fort Lauderdale pawn shop employee, despite Lindsey maintaining his innocence and the lack of evidence linking him to the crime. Now, jurors were contemplating whether to spare his life or send him to death row. 

“I was kind of numb,” Lindsey told Bolts. “I still couldn’t believe that I was convicted and facing death.”

At the time, a death sentence only required a recommendation from a majority of jurors. When the foreman read out the jury’s vote on Lindsey’s fate, it was 8–4. The judge then sentenced him to death. 

Three years later, in 2009, the Florida Supreme Court unanimously concluded that the evidence was “insufficient to support Lindsey’s conviction” and was “equally consistent with a reasonable hypothesis of innocence,” vacating his conviction. He was exonerated and freed from death row. 

Though Linsdey now travels the country speaking about his experiences with the death penalty, he still feels the lingering effects of death row and prefers to spend his time at home alone in his room, away from friends and family. “It was traumatizing,” said Lindsey, who is now the executive director of Witness to Innocence, an organization that advocates for ending the death penalty and is led by death row exonerees. 

After Lindsey’s exoneration, Florida revamped its sentencing scheme to require that jurors unanimously vote for capital punishment in order for judges to impose death sentences. But after a jury voted 9–3 to spare Parkland shooter Nikolas Cruz’s life in 2022, some legislators responded by introducing a bill that removed mandatory unanimity. Instead, only an 8–4 majority would be required for death. 

Last week, Florida Governor Ron DeSantis signed the bill into law, creating the lowest standard among the 24 states that allow the death penalty. “Once a defendant in a capital case is found guilty by a unanimous jury, one juror should not be able to veto a capital sentence,” DeSantis said in a statement. “I’m proud to sign legislation that will prevent families from having to endure what the Parkland families have and ensure proper justice will be served in the state of Florida.”

Opponents, however, say that the legislation will contribute to more wrongful death sentences in the state. Florida’s death sentences are the most unreliable in the country: It is the state with the highest number of death row exonerations, with 30 people since 1973, the majority of whom were sentenced to death by non-unanimous juries. 

“It makes Florida the extreme death penalty state in this country,” said Maria DeLiberato, a capital litigation attorney and executive director of Floridians for Alternatives to the Death Penalty. “We know that non-unanimity leads with less deliberation, less thoughtfulness, is rooted in racism and is designed to silence Black and Brown voices on a jury.”


In 2016, the U.S. Supreme Court ruled that Florida’s capital sentencing scheme violated the Constitution. In that case, Hurst v. Florida, the court ruled 8–1 that the way the state decided whether to sentence someone to death violated the Sixth Amendment, the constitutional right to a jury trial, because the judge, not the jury, was responsible for considering the facts necessary for the imposition of a death sentence. 

Following Hurst, the Florida Supreme Court found that the jury must unanimously agree to impose a death sentence. Lawmakers moved to amend the statute, enacting a jury unanimity requirement in 2017. The change brought Florida in line with the sentencing standards of all other death penalty states, where juries must unanimously agree on a death sentence, with the exception of Alabama, which calls for a 10–2 majority.

As part of the overhaul, approximately 200 of 400 Florida prisoners who were sentenced to death under the old scheme became eligible for resentencing. One study found that the jury had failed to unanimously agree on a death sentence in roughly two-thirds of those cases. As of 2020, 34 prisoners were resentenced to life in prison, four were resentenced to death, and two were exonerated. 

Then in 2020, the Florida Supreme Court reversed course. Three of the seven justices reached retirement age and DeSantis filled those seats with conservative judges from the Federalist Society who pushed the court further to the right. As a result, it concluded in the case State v. Poole that juries didn’t have to unanimously agree on a death sentence after all, and the previous court “got it wrong.” While the decision didn’t change Florida’s capital sentencing law, it signaled to the legislature that if they were to pass a law dismantling jury unanimity, the court wouldn’t get in its way. 

Gov. DeSantis with Florida lawmakers last week after signing the bill allowing non-unanimous jury decisions for death sentences. (Facebook/Governor Ron DeSantis)

After the jury in Cruz’s case reached a verdict of life without parole, DeSantis urged tougher sentencing. 

“We need to do some reforms to be better serving victims of crimes and the families of victims of crimes and not always bend over backwards to do everything we need to for the perpetrators of crimes,” he said at the time, according to the Associated Press. 

The case led state Representative Berny Jacques, a Republican from Pinellas County, to sponsor a bill permitting the death penalty without all jurors agreeing. Under the recently signed law, the jury must unanimously find at least one aggravating factor from a list of 16—such as the crime being “especially heinous, atrocious, or cruel”—in order to consider the death penalty. 

If fewer than eight of the 12 jury members vote for the death penalty, the person will be sentenced to life in prison without the possibility of parole, according to the bill. If at least eight jurors choose death, the judge still has the authority to override their recommendation and hand down a life sentence—and then must explain their decision in writing. 

In pushing the legislation, Jacques, who did not return requests for comment for this story, also pointed to the case of a man convicted of killing a police officer in his county who was spared the death penalty after two jurors voted for a life sentence. “This law will correct a wrong in our statutes, a statute that was based on a flawed Supreme Court ruling that was overturned three years ago,” Jacques told a Florida TV station. He cheered the governor’s signing of the legislation last week in an update to constituents that he posted on social media, saying, “No more in the state of Florida will a small handful of jurors be able to stop the most heinous of criminals from receiving the death penalty.” 


Robert Dunham, former executive director of the Death Penalty Information Center and an adjunct professor of death penalty law at the Temple University Beasley School of Law, cautioned that Florida’s new law will impact people wrongfully facing death more than mass shooters. 

“The effect…will be that people like Herman Lindsey are going to be sentenced to death,” he told Bolts.  “The effect is going to be most pronounced not in the tiny number of mass shooting cases that actually ever make it to trial. The effect will be in the large number of marginal death penalty cases.”

The imposition of non-unanimous jury decisions can be traced back to the Jim Crow era, when laws were created to ensure that white jurors, who reliably made up the majority of jurors in courtrooms across the South throughout the first half of the 20th century, won their desired verdict. In Florida, researchers have found that juries today are still disproportionately made up of white people. A 2021 study conducted by the ACLU of capital cases in Duval County, which is home to Jacksonville, found that Black people were excluded from serving on the jury at rates more than twice of white jurors. A 2010 report by the Equal Justice Initiative found the courts have invalidated more than 33 criminal convictions throughout the state because prosecutors unlawfully struck jurors because of their race. 

“That means that, the jury that is ultimately empaneled in Florida will on average have fewer jurors of color than one-third of the jury,” said Dunham. “And that means that in a jury non-unanimity system, in which you need more than one-third of the jury to ensure a life sentence, that you’ve just disenfranchised the minority community. The other jurors don’t have to listen to them because they don’t have to reach a unanimous verdict.”

In capital cases, the racial makeup of the jury can significantly impact case outcomes. One study published in 2004 found that white jurors were four times more likely to recommend the death penalty during sentencing compared to Black jurors. Jury unanimity has also been shown to impact the integrity of convictions: a 2020 Death Penalty Information Center study found that in the three states that had allowed death sentences by non-unanimous juries—Florida, Alabama, and Delaware (which abandoned the death penalty in 2016)—at least one juror had voted for life without parole in 93 percent of exonerations. 

In Ralph “Ron” Wright’s case, for example, five jurors voted to spare his life. An Air Force veteran and former police officer, he was exonerated in 2017 after spending three years on Florida’s death row. Like Lindsey, there was no evidence linking him to the crime. Wright remembered looking through his window to watch hearses rolling away with prisoners’ bodies on execution days. “You’re thinking ‘Is that day going to come for me?’”

Wright denounced the new law, telling Bolts, “It just makes it easier for someone to be sentenced to death.” 

Clemente Aguirre-Jarquin spent a decade on Florida’s death row even though not all of his jurors voted for life without parole. He was exonerated in 2018 after DNA evidence cleared him and someone else confessed to the crime. 

“It is taking the power from the people. Your vote should be respected. I guarantee you that there will be many, many more wrongful convictions,” he told Bolts.

Ed Brodsky, a state attorney and president of the Florida Prosecuting Attorneys Association, defended the law, telling Bolts that under the previous unanimity requirement, weighing whether to seek the death penalty was a “much more onerous process.”

“So from 2017 to today, we were following this unanimous jury verdict procedure, which I think made it much more difficult, and I think certainly heightened our requirements, and our feelings that certain defendants would be out—you know, would we be able to satisfy that very high burden?” he said. 

Herman Lindsey testifies against the death penalty bill during a March legislative hearing. (Screenshot/myfloridahouse.gov)

Under the new law, jurors would still be required to unanimously convict, and the emergence of new technology and forensics such as DNA testing should safeguard against wrongful convictions, Brodsky said. “We’re talking about such a wealth of information that is now available to be presented to a jury so that when we go forward with one of these cases, and a jury makes a determination of life or death, I really feel that they are being given such an overwhelming amount of scientific evidence, forensic evidence, witness testimony.”

After DeSantis signed the bill last week, the law became effective immediately. DeLiberato of Floridians for Alternatives to the Death Penalty said that the sudden enactment leaves many questions about how it will be applied to past, current, and future cases, or how it will affect the approximately 60 prisoners awaiting resentencing under the Hurst decision. Decisions about the application of the law will play out in courts across Florida. For her part, DeLiberato said she will argue that jury unanimity is required and the latest amendment is unconstitutional. 

“While the Parkland tragedy was unimaginable and horrific, we cannot and should not make important legislative decisions based on one case,” she said. 

For Lindsey, 17 years have passed since he was sentenced to death. He said that instead of enacting laws that eviscerate protections for capital defendants, legislators should focus on passing reforms to ensure more people aren’t wrongfully sent to death row.  

“Passing this bill, yes it will create more innocent people going to death row,” he told lawmakers when testifying against it at a legislative hearing in March. “My vote count was 8-4, and we don’t even understand how the jury reached the verdict of guilty, but the jury got it wrong.” 

“When the jury got it wrong in my case, and the Florida Supreme Court ruled unanimously that I shouldn’t have been convicted, there was no bill on this desk to compensate me or get me my rights back,” Lindsey added. “The jury got it wrong then, and I don’t think it’s fair that we change the law now. I think what we need to do is find a way to fix our system, not to continue to break it.” 

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In Pennsylvania’s 2023 DA Races, There’s Already a Winner: Unopposed Prosecutors https://boltsmag.org/pennsylvania-da-races-2023/ Wed, 22 Mar 2023 18:53:49 +0000 https://boltsmag.org/?p=4448 This is the first installment of Bolts’ primers on 2023 prosecutor elections. Explore our guides to DA races in New York and across the South in Kentucky, Mississippi, and Virginia. Tom Marino,... Read More

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This is the first installment of Bolts’ primers on 2023 prosecutor elections. Explore our guides to DA races in New York and across the South in Kentucky, Mississippi, and Virginia.

Tom Marino, a former member of Congress, is running this spring for a job he held more than two decades ago: district attorney of Lycoming County, in Central Pennsylvania. On his website, he vows to “prosecute offenders to the fullest extent of the law,” and in the brief list of issues he says he’d tackle with a “tough-on-crime approach,” he includes the fact that “drugs are making their way into our neighborhoods.”

Lycoming County has been hit hard by the opioid crisis, overwhelming local officials with a surge in overdoses. But Marino’s campaign posture today sticks out given the accusations he faced just five years ago that he worsened this trend.

In late 2017, Marino’s nomination to be then-President Donald Trump’s drug czar derailed after The Washington Post and 60 Minutes reported that he pushed legislation that made opioids more readily available. The investigation revealed that Marino collaborated with the pharmaceutical industry to draft language that gutted the Drug Enforcement Administration’s authority to go after large drug companies suspected of fueling the crisis, all while receiving big donations. Besides sinking Marino’s appointment, the news sparked a national reckoning over his law and, back home in Lycoming, condemnation as well as fresh reporting on overdoses.

But any debate over Marino’s record and how it fits with his new campaign’s rhetoric ended before it even began: No one filed to run against him. 

Pennsylvania’s deadline to run for DA as a major-party candidate passed on March 7 with no other contender entering the race, leaving Marino highly likely to win the job and complete his comeback with little additional scrutiny. Marino, who also survived a residency challenge last week, did not reply to Bolts’s requests for comment over his legacy and platform on drugs.

The same scene repeated itself throughout the state this month. Upon compiling the list of candidates in the 49 Pennsylvania counties with DA elections this year, I found that only 14—less than a third of the total—drew multiple candidates, with a few of those races seeming to offer voters a stark choice. 

Thirty-five counties, meanwhile, drew only one candidate by the deadline.

Missed windows for democracy

That’s 35 candidates—typically incumbents, but in six cases nonincumbents like Marino—who are poised to waltz into office without facing much scrutiny into their policies. In Dauphin County, where PennLive recently reported on mounting jail deaths and local officials offering little information or accountability, DA Frank Chardo faces no opposition, just like the last time he ran in 2019. The same is true for DA Brian Sinnett in neighboring Adams County, where the DA’s office faced allegations that it is not taking rape complaints seriously. In Lehigh, which saw sustained activism after prosecutors decided to not charge police officers in a publicized use-of-force case, the DA is retiring and his chief deputy is the only candidate who filed to replace him.

The strangest saga is unfolding in Northumberland, where DA Tony Matulewicz filed his petition too late by a matter of minutes and was denied a ballot spot. He is suing to be reinstated but, for now, challenger Mike O’Donnell remains the sole qualified candidate. O’Donnell, who is a Republican like Matulewicz, works as a defense attorney and said upon entering the race that “he wanted to fix a broken system,” but did not reply to questions about what that means.

Independents may still file to run later, but it’s very rare for candidates outside of the two major parties to win. In 2019, when each of these 49 counties held their last DA race, all 49 winners had filed as a Democrat or Republican. Newcomers could also mount uphill write-in campaigns.

It’s common across the country for DAs to run unopposed. For one, it’s hard for attorneys to challenge a sitting prosecutor without fearing professional repercussions should they lose, especially in smaller communities. Still, the number of Pennsylvania counties hosting contested elections plummeted this year compared to 2019. At the time, 24 of the 49 counties drew multiple major-party candidates, compared to 14 counties this year. 

The pattern is also not confined to the state’s smallest jurisdictions. There are 12 DA elections in counties with at least 250,000 residents, and only four drew multiple contenders; in Montgomery County, for instance, a county of more than 800,000 residents, incumbent DA Kevin Steele will be running for re-election unopposed for the second straight cycle.

“Many people just don’t know all of the power that district attorneys actually possess,” says Danitra Sherman, the deputy advocacy and policy director at the ACLU of Pennsylvania. “As voters, we often get excited about presidential elections, but not so much about local races, or state races at times, when those that hold positions at these levels have more say on and decision making power over the day-to-day life.” The state ACLU launched a voter education drive on the role of DAs in 2017, and in 2019 they sent out questionnaires to candidates, asking for their views on matters ranging from sentencing to bail, but many did not reply. Sherman says they recently sent out questionnaires to some candidates again this year.

In counties with contested DA races, this year is voters’ first opportunity to weigh in directly on criminal justice since the Black Lives Matter protests of 2020 and the latest round of GOP attacks over crime, which has put issues surrounding policing and public safety squarely in Pennsylvania’s political spotlight. Yet even when there’s a contested race, candidates often downplay the huge amounts of policy discretion that comes with the role. 

My own review of Pennsylvania’s 14 contested DA races found that many of the people who filed this year are running as status-quo candidates (such chief deputy prosecutors bidding to replace their retiring boss), competing largely over who has the most professional experience as a prosecutor, and eschewing sharing their thoughts on issues—all standard fare in DA races. 

In addition, some candidates have little to no campaign presence at this stage and did not answer requests for comment. That includes the sole challenger in Delaware County, one of the most populous counties with a contested race.

Our full database of DA candidates in Pennsylvania is available here.

Primaries in Pennsylvania are on May 16, and general elections are in November. State voters also weigh in on many local and state elections this year, including a seat on the state supreme court, county sheriffs, and Philadelphia’s mayor.

Still, a few DA elections are presenting voters with some contrasting paths on criminal justice policy.

What to still watch for

The year’s marquee race is the DA election in Allegheny County, home to Pittsburgh, where longtime incumbent Stephen Zappala faces the county’s chief public defender, Matt Dugan. 

Over his nearly 25 years in the DA’s office, Zappala has embraced a reputation for harsh prosecutions—other than in cases of police shootings—and sternly opposed advocates who have pushed for decarceration, accusing them of disregarding victims. “I don’t agree with their philosophy on a lot of things,” he said during his most recent campaign, explaining why he was “done with socialists and ACLU forums” and skipping some candidate events. Investigations have revealed significant racial disparities in prosecutions under Zappala’s watch but he has routinely dismissed addressing systemic inequalities as beyond the purview of his job. “I’m not running for public defender,” he quipped four years ago.

Now a public defender is running against him, adding to a wave of outsiders, including civil rights attorneys, who have run for DA nationwide in recent years. Dugan is pressing a basic disagreement over whether the DA’s office should even be tackling the root causes of crime and tracking class and racial disparities. “I do see a place for the district attorney to think more about crime prevention and to address the issues that are really driving people into the criminal justice system in the first place,” he told the Pittsburgh City Paper.

Hundreds of miles away, in Monroe County, the retirement of a local DA—Republican David Christine—has sparked an intriguing three-way race. In the Republican corner is Alex Marek, an assistant DA in a neighboring county who is pledging to bring a “tough on crime” approach. 

Democratic candidate Donald Leeth takes exception to that moniker. “Unfortunately being tough on crime is always locking up more people for a longer period of time, and I think the evidence has shown that that doesn’t work, that doesn’t make us a safer community, that doesn’t address the underlying issues within our society and our criminal justice system,” he told me. 

Leeth used to work as an assistant DA but says he became more aware of disparities in prosecution as a defense attorney. He faulted racial disparities in the county’s court system and an overreliance on police officers as “first responders for everything.” But he also remained largely cautious when it came to specifying reform he’d implement, for instance saying he’d want to recommend cash bail in fewer cases, but also that it has its role in the court system.

Leeth also said he “would not be open” to seeking death sentences if he was elected DA, and called on the death penalty to be repealed.

Also in the running is Democrat Mike Mancuso, who currently works as the county’s chief deputy prosecutor, and who did not reply to a request for comment on the death penalty and other issues. (The winner of the Democratic primary between Leeth and Mancuso will face Marek in November.)

Monroe is one of the ten counties in Pennsylvania that has sentenced someone to death over the last decade, according to data gathered by the Death Penalty Information Center. Pennsylvania’s Democratic governors have imposed a moratorium on executions but the death penalty remains available and state prosecutors regularly seek it.

Washington County is also on that list. Republican DA Jason Walsh came into office in late 2021 after his predecessor’s death and he has since pursued death sentences aggressively; the county had eight capital cases as of August, and more since. Walsh now faces Democrat Christina Demarco-Breeden, an assistant DA in a neighboring county. When I asked Demarco-Breeden if there are aspects of the DA’s office that she wishes to change, she zeroed in on Walsh’s use of the death penalty. She is concerned that it just keeps growing and that the county’s defense resources are at a breaking point. But she also said that, if she became DA, she herself would remain open to applying the death penalty “to the most brutal homicides.”

Some Democratic lawmakers are championing legislation this session to abolish the death penalty. “My job is to make sure that’s not even an option,” said State Representative Chris Rabb when I asked how he hopes DAs handle capital cases in the meantime. The money “could be much better spent on any number of things, most notably violence prevention so that we don’t have as many people committing the murders that get people on death row to begin with.” 

Rabb, who represents Philadelphia, was a vocal defender of  Philadelphia DA Larry Krasner, a figurehead for so-called progressive prosecutors, against state Republican efforts to remove the DA from office last year; Krasner, who easily won re-election in 2021, is not up again until 2025. 

Rabb says the GOP attacks on Krasner and other tough-on-crime messaging backfired—Democrats won a high-profile U.S. Senate race and flipped the state House—because most Pennsylvanians believe in reforming the criminal legal system. “They believe in second chances, and having parole and probation reform so that people are not surveilled for decades,” Rabb told me.

“Spending so much time denigrating Larry Krasner did nothing else than energize Philadelphia in saying, ‘You folks who don’t live in Philly claim to care about us, but what are you doing for us other than demeaning someone who we voted for twice?’” Rabb added. Krasner, unlike most of his peers, has faced opponents in every primary and general election.

Democrats’ takeover of the state House in the midterms changed the political dynamics around criminal justice reform by ushering progressive leaders into power. But Liz Randol, legislative director of the state ACLU, says one thing that hasn’t changed in Harrisburg is the role of the Pennsylvania DA Association, the influential group that lobbies on behalf of state DAs and has helped shape state laws to be more punitive. Randol is watching whether 2023 chips away at state prosecutors’ typical role as chief antagonists to reform legislation.

“The prosecutorial mindset runs through the entire criminal legal system, from legislating to charging, to sentencing,” said Randol. “Because the system is largely driven by the prosecutorial side of the equation, it’s going to take a lot to change it. But I certainly think you can poke holes in that veneer.”

Pennsylvania Votes

Bolts is closely covering the ramifications of Pennsylvania‘s 2023 elections for voting rights and criminal justice.

Explore our coverage of the elections in the run-up to the May 16 primaries.

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Landmark Push for Clemency in Oregon and Nevada Show Split Paths on Death Penalty https://boltsmag.org/death-penalty-and-clemency-oregon-nevada/ Tue, 20 Dec 2022 18:23:51 +0000 https://boltsmag.org/?p=4212 When Oregon Governor Kate Brown announced last week that she was commuting the death sentences of everyone on her state’s death row to life in prison without the possibility of... Read More

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When Oregon Governor Kate Brown announced last week that she was commuting the death sentences of everyone on her state’s death row to life in prison without the possibility of parole, it was a landmark moment for the use of clemency in America. 

Her decision was the largest gubernatorial act of commuting people’s death sentences since 2003. Seventeen people who began the week under a sentence of death no longer face the prospect of the state killing them. 

“It’s certainly unacceptable to me that I would leave office without taking one final action to ensure that none of these individuals will be executed by the state,” Brown told NPR. Brown had, even before this step, established a legacy for her “historic use” of her clemency powers.

Over the years since the U.S. Supreme Court reauthorized the use of capital punishment in 1976 after a brief moratorium, only a handful of governors have taken similarly sweeping steps—most notably, Illinois Governor George Ryan, a Republican who in 2003 commuted the sentences of the 167 people on death row there. 

Brown’s mass clemency comes at a time where new death sentences and executions are at low levels nationwide. As the Death Penalty Information Center wrote in its year-end report, released this week, 2022 was the “[e]ighth consecutive year with fewer than 30 executions and 50 new death sentences.” There are 2,400 people on the nation’s death rows today, however, with blue California and red Florida leading the way.

But her actions also highlighted the stark partisan divide on the death penalty today, with two Americas drifting apart in their leaders’ willingness to carry out or block executions.

On the day Brown granted her clemency, Mississippi was preparing for the final execution in the United States this year. The state executed Thomas Loden Jr. on Wednesday, despite ongoing litigation against its lethal injection protocol. In all, 18 people were executed in the country this year, with Texas and Oklahoma carrying out five executions each. Arizona carried out three executions, Missouri and Alabama two each, and the final one in Mississippi. 

All six states that carried out executions this year are currently led by Republican governors.

Democratic executives have largely blocked executions. No sitting Democratic governor has overseen one; the last to do so was Virginia’s then-Governor Terry McAuliffe, who oversaw what became the state’s final execution, of William Morva, in 2017. McAuliffe later announced his opposition to the death penalty, and Democrats abolished it in 2021 shortly after taking control of the state government. In 2020, Governor Jared Polis, a Democrat, commuted the sentences of the three people on Colorado’s death row while signing a bill abolishing the death penalty.

With Brown’s latest act of clemency, there are now 24 states that have no one on death row. 

That number came close to inching up to 25 on Tuesday. At the urging of Nevada’s Democratic Governor Steve Sisolak, the state’s Board of Pardons was set to consider a motion at its quarterly meeting to commute the death sentences of everyone on Nevada’s death row.

But Carson City Judge Jim Wilson on Monday blocked that item from the meeting’s agenda, ruling that the state had not given enough notice to victims’ families. Sisolak is set to be replaced in January by Republican Joe Lombardo, a sheriff who pledged to “reverse Sisolak’s soft-on-crime policies.”  

Sisolak acknowledged during Tuesday’s board meeting that there would be no vote on his proposal. “Placing this matter on the agenda was done as an act of grace, and with the understanding that the death penalty is fundamentally broken,” he said. “The administration of the death penalty is not fair and not equitable and cannot be corrected.”

District attorneys had rushed to ask courts to stop the commutations after Sisolak’s proposal. Wilson, the judge, is himself a former DA in Elko County. Nevada prosecutors have a lot of clout: Last year, state Democrats failed to repeal the death penalty despite running the legislature after a bill derailed in the state Senate, where multiple Democratic leaders have day jobs as prosecutors in Clark County, where the DA’s office is prone to seeking death sentences. Sisolak’s comments at the time also helped stall the bill. 

“The fact that prosecutors in Nevada once again took steps to ensure the government is able to execute people is of little surprise since they continue to use the threat of execution as a means of coercion in criminal prosecutions,” Athar Haseebullah, the executive director of the ACLU of Nevada, told Bolts.

“I am glad the governor made this most recent push for commutations, but the last four years provided Nevada leaders, including the vaunted Democratic trifecta, multiple opportunities to address this issue and we walk away on this issue four years later in the same predicament we were in four years ago,” Haseebullahhe added. 

The partisan divide is similarly complex in other states.

Some Republican governors have been far more aggressive than others in carrying out executions. And Democratic Party leaders have also been split on how much they should do to bring capital punishment to an end. And major tests loom in 2023 for Democratic officials—in Arizona, as well as in the White House.


Brown’s announcement in Oregon could put more pressure on her Democratic peers, starting with President Joe Biden.

Biden campaigned on a promise to “eliminate the death penalty” and Attorney General Merrick Garland put a moratorium on executions in 2021. But Garland’s Justice Department is continuing to support ongoing capital cases and his administration on Dec. 15 cast a vote against a United Nations resolution calling for a global death penalty moratorium. In a memorandum explaining its vote, the United States Mission to the United Nations stated, in part, that “the U.S. does not understand the lawful use of this form of punishment as contravening respect for human rights.” 

Of particular importance on the federal level is the fate of the more than 40 people on federal death row now. Former president Donald Trump launched an execution spree after more than 15 years of no federal executions, ultimately resulting in 13 federal executions under his watch. Since Biden took office, many opponents of the death penalty have urged him to use his clemency power to commute sentences and prevent a later president from carrying out a similar spree. Thus far, Biden has taken no action. 

The failure of the Nevada Board of Pardons to commute death sentences before the end of Sisolak’s term leaves the door open to executions since Nevada has 57 people on death row. Nevada has not executed anyone since 2006, but prosecutors this year tried to secure an execution date before a supply of lethal drugs expired.

Nevada Governor Steve Sisolak delivers comments during the meeting of the Board of Pardons on Tuesday (Nevada Supreme Court/YouTube).

Apart from the federal government and Nevada, the other jurisdictions with people on death row and Democratic executives at this time are California, Kentucky, Kansas, Louisiana, North Carolina, and Pennsylvania. None have held an execution in over a decade, many much longer.

In California and Pennsylvania, Democratic governors have imposed moratoriums but have not pushed for mass clemency. Governor Gavin Newsom retained his office last month in California; in Pennsylvania, Governor Tom Wolf, who set up the moratorium in 2015, will soon be replaced by Governor-Elect Josh Shapiro, the outgoing attorney general. Shapiro, who had a mixed record with criminal justice progressives as attorney general, said this year that he agreed with Wolf’s approach and that he would not sign a death warrant while governor. 

But an incoming Democratic governor will soon be under scrutiny in Arizona, a state that carried out multiple executions last year, and test the party’s consistency in blocking executions.

In November, Katie Hobbs became the first Democrat since 2006 to win the gubernatorial race and she already faces decisions—including her appointment to a vacancy on the state’s Board of Executive Clemency, a body that must recommend clemency to the governor—that will shape Arizona’s criminal justice future.

A Hobbs spokesperson did not respond to questions about her plans for addressing the death penalty and executions in her state. 

Arizona’s outlook is complicated by the fact that it is not yet clear whether Hobbs will be working with a Democrat or Republican attorney general come January. The November race was so close—Democrat Kris Mayes led by 510 votes in the initial tally—that an automatic recount is underway. Outgoing Attorney General Mark Brnovich, a Republican, fought in court to restart executions in Arizona after a several-years halt following the botched execution of Joseph Wood in 2014. The state executed three people in 2022, and Brnovich has asked the Arizona Supreme Court to set an execution date for Aaron Gunches.


Oklahoma stands out among the states led by Republicans. Recently re-elected Governor Kevin Stitt is on a killing spree, the state set 25 executions over a two and a half year period, through the end of 2024, although two of the planned executions (Richard Glossip and John Hanson) have already not gone ahead. 

Earlier this year, Stitt pressured the chair of Oklahoma’s pardon board to resign due to his support for clemency petitions. The board had repeatedly urged Stitt to commute the death sentence of Julius Jones, a man who had maintained that he was innocent for decades; Stitt did eventually agree, breaking with Attorney General John O’Connor, a Stitt appointee who has supported his execution spree and clashed with the board in pushing for Jones’s execution

O’Connor, however, lost his re-election bid in the Republican primary this year to Gentner Drummond, who ran as what The Oklahoman described “an attorney general who would be independent of the governor’s office,” and the approach that Drummond will strike on capital punishment-related issues is a big question heading into 2023.

Texas, like Oklahoma, continued apace with five executions, lower than it has in past years (except for 2020 and 2021, when the pandemic even led Texas to halt executions for some time), but still the most in the nation this year. The state largely re-elected its leaders last month.

For all his bluster in fighting prosecutors who oppose the death penalty, Florida Governor Ron DeSantis, with the second largest death row in the country behind California, has not carried out an execution since his first year in office, when he oversaw two executions. But the supreme court that he reshaped has made it considerably harder to challenge death sentences. 

Botched executions and ongoing litigation over the availability of lethal drugs stalled the death penalty in a number of GOP-led states. DPIC dubbed 2022 “The Year of the Botched Execution,” finding seven of the 20 execution attempts were visibly problematic as a result of executioner incompetence, failures to follow protocols, or defects in the protocols themselves. 

Ohio Governor Mike DeWine is going to finish his first term in office having not carried out a single execution despite more than 100 people facing death sentences in Ohio. The governor has issued multiple reprieves as pharmaceutical companies continue to refuse to sell lethal drugs. In Tennessee, similarly, after questions arose about the state’s preparation of execution drugs for a scheduled execution in April, Governor Bill Lee issued a reprieve to stop that day’s scheduled execution. Soon thereafter, he went further and orderied a review of the state’s execution process and a halt to executions for the year. 

In Alabama, however, Governor Kay Ivey chose to stay with the more aggressive group of governors — until there was, effectively, no other option than a pause. After one horribly botched, three-hour ordeal in executing Joe Nathan James Jr., the state proceeded to attempt two other executions that were both halted before lethal drugs were administered. Only then, on Nov. 21, did Ivey order a “top-to-bottom review” of the state’s clearly failing execution process and request that no execution dates be set during the review. 


The news out of Oregon didn’t change the state’s day-to-day reality: Oregon had not carried out an execution in 25 years. Still, opponents of capital punishment celebrated Brown’s commutations as a critical move, stressing that a future governor who supports the death penalty could have lifted the moratorium on executions currently in effect in the state.

“Our state still has the death penalty. Two out of three candidates for governor in last month’s election were committed to resuming executions,” Bobbin Singh, executive director of the Oregon Justice Resource Center, told Bolts. “While the winner, Tina Kotek, said she would continue the moratorium, it’s a reminder there’s no guarantee that Oregon will be free of executions while we have people under death sentences.”

Despite Brown’s clemency, the state retains the death penalty on the books. State Democrats passed a law in 2019 that very significantly restricted its use, but repealing it altogether would demand a constitutional amendment and referendum. (Oregonians last voted on the death penalty, inscribing it in the state constitution, in 1984.)

“Voters would have to overturn it at the ballot,” Singh said, “but we shouldn’t underestimate how influential Brown’s leadership will be in moving us toward abolition.”

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Utah Prosecutor Tests GOP Appetite for Opposing the Death Penalty https://boltsmag.org/utah-county-da-opposes-death-penalty/ Tue, 14 Jun 2022 18:16:53 +0000 https://boltsmag.org/?p=3185 At first, Utah County Attorney David Leavitt wanted to seek the death penalty for Jerrod Baum, who had been accused of violently murdering two teenagers, Riley Powell and Brelynne Otteson,... Read More

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At first, Utah County Attorney David Leavitt wanted to seek the death penalty for Jerrod Baum, who had been accused of violently murdering two teenagers, Riley Powell and Brelynne Otteson, and throwing their bodies down a mine in 2017. 

The use of the death penalty in Utah County, a majority Republican county that’s the second most populous in Utah, had been rare when Leavitt took office in 2019, two years after the Baum murders. The last time a Utah County attorney had sought the death penalty was in 1984, when prosecutors pushed for the exections of Ron and Dan Lafferty, who had been charged with capital murder for the killings of their sister-in-law Brenda Lafferty and her 15-month old daughter, Erica. (Dan was sentenced to life in prison, where he remains, while Ron died of natural causes on death row.)

As the Baum prosecution got underway, Leavitt, a Republican, assigned four full-time prosecutors to the case. But then he quickly saw how they detracted from other prosecutions. At the start of the Baum case, Leavitt said his office was handling 17 homicide prosecutions and around 230 cases involving sex crimes. Typically, Leavitt said, each prosecutor in his office would work more than 100 cases. 

Leavitt eventually decided that seeking death was no longer worth it, announcing last September, that he would take the death penalty off the table in Baum’s case and never again seek the ultimate punishment, saying it deterred him from his ultimate goal of public safety. 

“My commitment to you when I took office was to focus our efforts on community protection rather than on methods of the past that have long since proven ineffective,” Leavitt said in a statement at the time. “Focusing on ALL victims by no longer seeking the death penalty advances that commitment.” In April, a jury convicted Baum of aggravated murder. Leavitt’s office argued for four consecutive life sentences without the possibility of parole, and a jury agreed during Baum’s sentencing last week. By not seeking the death penalty, Leavitt says his office only had to assign two lawyers to the case instead of four, and estimated the trial was shortened by about three months. 

“The doctrine of limited government is that government acts only to the extent necessary to get the job done,” Leavitt told Bolts in an interview. “But what is the job? The job in this case is protecting society. And we can protect society far better with life in prison without parole than we can with the death penalty.” 

In recent years, conservative politicians across the country have joined in Leavitt’s thinking, shifting from once zealous proponents of capital punishment to supporters of limiting and ending the practice. Leavitt, however, may be the only known conservative prosecutor to have done so. He has been lauded as a trailblazer among the nation’s conservative groups fighting to end the death penalty, who typically frame their stance as pro-life, fiscally responsible, and in line with limited government. 

But at home, his move sparked a heated political battle: the county’s commissioners have voted in favor of abolishing the death penalty, while the Fraternal Order of the Police and a group of former prosecutors issued a vote of no confidence in Leavitt. 

Leavitt’s pivot away from the death penalty might now cost him his job in Utah County. He faces tough competition to keep his seat in Utah’s June 28 Republican primary, up against an opponent who cites his stance on the death penalty and the Baum case in pushing the narrative that Leavitt is soft on crime.

“I think it’s a violation of his oath not to pursue the death penalty in appropriate cases,” Jeff Gray, who is an assistant Utah solicitor general, told the Daily Herald in January. Adam Pomeroy, who currently works under Leavitt as a deputy county attorney and who dropped out of the primary in early June to endorse Gray, told Bolts that Leavitt has “become a rogue prosecutor who simply refuses to follow what the law is.” Pomeroy also called it “completely inappropriate for a county attorney to unilaterally decide, disregard the will of the people and nullify a law he personally disagrees with that usurps the legislative function.”

The execution chamber inside Utah State Prison, with a platform for lethal injection and a metal chair for executions by firing squad. (Wikimedia commons)

Before becoming Utah County attorney, Leavitt served as top prosecutor for Juab County from 1995 to 2003. After he lost the 2002 election, he started working in Ukraine and Moldova to reform their criminal justice systems. “In 2018,” Leavitt said, he “realized that I really had very little business traveling 7,000 miles to try and reform someone else’s criminal justice system when my own was falling apart around me.”

After taking office, he first introduced a pre-filing diversion program that would allow people accused of low-level crimes to avoid conviction and prison time by participating in classes, community service, and treatment programs. He also aimed to reduce incarceration for non-violent offenses, and change the office’s charging practices. 

Leavitt was presented with the Baum case his first year in office. Initially, he remembered thinking, “If there was ever a crime that in my estimation warranted the death penalty it is that one.” But the resources and time devoted to the case at the expense of others made him rethink his position. Leavitt said that he also considered that even if the jury sentenced Baum to death, it would be decades before he would be executed, if ever. (The last person Utah executed, Ronnie Lee Gardner, spent nearly 25 years on death row between his conviction and execution, and Utah has not carried out an execution in 12 years.) Leavitt said he also had problems with coercive plea bargaining in capital murder cases and the possibility that an innocent person could be executed at the government’s hands. 

“My evolution with the death penalty really came down to the fact that I realized that the only person that really benefits from seeking the death penalty is me as the elected prosecutor because it makes me look tough on crime,” Leavitt told Bolts. “But at the same time, the prosecutor is spending all the government resources, we’re diminishing the effectiveness of all the other cases in the office.”

He added, “In my mind, the choice was clear. I’m not here to get and stay elected. I’m here to reform the criminal justice system.”

The families of Baum’s victims have criticized Leavitt’s decision to drop the death penalty. “There is no reform for this man. There is no rebuilding,” Amanda Davis, Otteson’s aunt, said of Baum during an interview with local news outlet KSL. “Taking the death penalty off the table makes it, like, he won. He got what he wanted.” 

Leavitt isn’t the only prosecutor in Utah to move away from the death penalty. Shortly after his announcement in September, he was joined by three others, two Democrats and one independent, in an open letter urging the state legislature and Governor Spencer Cox to repeal the state’s death penalty statute. Instead, they favored the introduction of a 45 years-to-life sentence to replace the death penalty, along with the existing punishments for aggravated murder of life without parole and 25 years-to-life. 

Leavitt is part of a growing movement of Republican politicans who are increasingly fueling efforts to end the death penalty. In January, two Republican Utah lawmakers who had formerly supported capital punishment introduced legislation that would prohibit prosecutors from seeking death; the bill failed in committee by a 6–5 vote. In Kentucky, a conservative lawmaker introduced a bill that was signed into law in April that would prevent people with certain mental illnesses from being sentenced to death. Missouri’s legislature is now considering a Republican-sponsored bill that would abolish the death penalty on the grounds that the government cannot be trusted with administering the ultimate punishment. And a bill to end the death penalty in Ohio, which has a Republican governor and legislature, is gaining traction, having gone further than others before it. 

Utah’s conservative activists have not responded positively, though. Pomeroy led with 46 percent of the vote in April’s county GOP convention, a gathering which grassroots activists usually dominate, while Gray had nearly 44 percent. Leavitt won just 10 percent but will appear on the June ballot because of the signatures he collected. 

Regardless of the outcome, Leavitt has already helped change the debate on capital punishment among conservatives, says Demetrius Minor, national manager for Conservatives Concerned About the Death Penalty. “I believe that because of David Leavitt, that could possibly open up the gateway for for other prosecutors to come forward in opposition to the death penalty,” Minor told Bolts. “There’s definitely a shift happening. It’s not a matter of if it’s a matter of when.”

The story has been updated to note that one of the primary candidates dropped out in early June.

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