Editor’s Note: Jessica Brand is the legal director for the Fair Punishment Project, a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, The Accountable Justice Collaborative (at Tides Foundation), and The Bronx Defenders. Formerly she worked at the Texas Defender Service and in the appellate division of the Public Defender Service for the District of Columbia. The views expressed in this commentary are solely those of the author.
Jessica Brand: Arkansas is a microcosm of what occurs in the very few remaining places that still utilize the death penalty
The state's execution rush highlights failure of Supreme Court's efforts to limit the use of capital punishment, Brand writes
When the Supreme Court reinstated the death penalty 40 years ago, it imposed an important limitation on its use. Because an execution is “unique in its severity and irrevocability,” it must be reserved for the worst of the worst – society’s most morally blameworthy defendants.
Over the years, the court has periodically provided guidance on the type of person who cannot “be classified among the worst offenders.” The court has barred the death penalty for the intellectually disabled and juvenile defendants, finding that because of their impairments limiting judgment and control, they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Justice Anthony Kennedy has written that killing those with reduced moral culpability “violates his or her inherent dignity as a human being.”
After decades, however, it’s clear the court’s attempts to regulate the death penalty have failed, and the eight cases Arkansas Gov. Asa Hutchinson set for rapid execution this month show it. These men are not society’s worst of the worst; rather, they are among our most vulnerable and impaired. Three of the men set to die before the state’s supply of a drug used for lethal injection expires – Jack Jones, Marcell Williams, and Ledell Lee – have already been put to death.
Arkansas is a microcosm of what occurs in the very few remaining places that still utilize the death penalty.
Three men, including Lee, are (or were) at least borderline intellectually disabled. One, Kenneth Williams, has an IQ of 70. Another, Bruce Ward, is likely legally insane; he thinks there are “little resurrected dogs” running around the prison and that “evil or demonic forces” are harassing him. Several of these men have (or in the case of Jack Jones, had) a debilitating mental illness, such as paranoid schizophrenia or bipolar disorder; others have brain damage.
As children, these men were raped and had parents who violently abused them. One poured boiling water on her son, another tar. Jason McGehee’s father slit the throats of two pet dogs for sport. McGehee eventually got another dog, “Dusty,” who he made his constant companion. He dressed the dog up, put the dog’s birthday on his calendar, and had the dog sleep on his bed nightly. His stepfather kicked it to death, forcing McGehee to watch. Marcel Williams, executed earlier this week, had a mother who pimped him out for food stamps and lodging starting when he was 9. Like intellectual impairments or severe mental illness, this kind of childhood trauma has profound effects on brain development, functioning and judgment.
If it “violates” “inherent dignity” to execute men who suffer from an intellectual disability or are juveniles, as Kennedy has said, the same must be true of the searing childhood trauma, intellectual impairments, and mental illnesses these men endured, which undermined their capacity for reasoning and judgment just as severely as an intellectual disability could.
With impairments this severe, how did these men end up on death row in the first place? The answer is simple: Most had lawyers who failed to uncover or present this powerful evidence at trial. Court and clemency filings by at least five of the defendants – all the executed men, along with Jason McGehee and Don Davis – make this clear. Lee, who Arkansas executed Thursday night, provides the most striking example.
According to state and federal court pleadings that Lee’s lawyers filed just before his execution, Lee’s trial lawyers begged the trial judge – who at the time was having an affair with the trial prosecutor – to let them off the case over a conflict. So did Lee himself. The judge denied their requests. These lawyers conducted no investigation into Lee’s life. His state post-conviction attorney abused substances during the hearing and literally uttered the words “blah blah blah” in court.
Eventually, a federal district court suggested that Lee receive a new attorney and a new appeal, and the Arkansas Supreme Court obliged. But his new lawyers fared no better. They missed a filing deadline and had two briefs returned for failure to comport with court rules. The Arkansas Supreme Court referred one attorney to the Committee on Professional Conduct. Lee’s federal post-conviction team initially included the drunk lawyer, and later, a man who last year surrendered his law license to “prevent possible harm to clients” because he suffered from bipolar disorder with psychotic features.
What no jury or court ever heard is that Lee likely had an intellectual disability, fetal alcohol syndrome, and significant brain damage. Lawyers first discovered this devastating information this month, just before Lee’s execution, when the American Civil Liberties Union intervened and finally looked into Lee’s life history.
But Lee is hardly the only defendant who received inadequate representation at trial. A lawyer for the recently executed Marcel Williams described his case as “the first capital murder case I’d ever been involved in.” The defense team did not even look for mitigating evidence – life history stories about trauma, mental illness and developmental impairments. “We had no idea what that meant.”
Even as sentences fall to an all-time low, with juries sentencing just 30 people to death in 2016, lawyers continue to fail their clients in breathtaking fashion. Our reporting shows that lawyers abound who almost never visit their clients (and therefore never learn their life story), conduct little to no additional investigation, and file almost no motions. And across the country, according to the Death Penalty Information Center, at least 60% of those executed in 2016 had a significant mental impairment, including mental illness, brain impairments, and low intellectual functioning.
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If the justices of the Supreme Court were previously unaware of the state of the American death penalty, they can no longer claim ignorance. In Oklahoma, after a yearlong review of the state’s death penalty system, the Oklahoma Death Penalty Review Commission recognized that the state failed to execute only “the worst of the worst” and on Tuesday recommended a continued moratorium in the state.
Ledell Lee’s case – and the others in Arkansas still set for execution this month – laid bare all that is rotten in America’s long dance with death. This continued failure to intervene on behalf of the most vulnerable and least represented erodes the legitimacy of the court itself.