3 Judge overrides are an incredibly potent … In November 2013, U.S. Supreme Court Justice Sonia Sotomayor wrote a blistering critique of Alabama’s continued use of judicial override to impose death sentences in a dissent from the Court’s decision to not review the issue. Joined by Justice Breyer, the Justices found serious constitutional defects in both the politics surrounding judge override and the way it undermines the role of the jury. Woodward v. Alabama (2013).
4 it’s not surprising that judge overrides …“The Death Penalty in Alabama,” 5.
5 As peculiar as the practice is … Harris v. Alabama, 513 U.S. 504 (1995); Spaziano v. Florida, 468 U.S. 447 (1984).
6 Mr. Dunkins suffered from intellectual disabilities … See Penry v. Lynaugh, 492 U.S. 302 (1989).
7 Thirteen years later … Atkins v. Virginia, 536 U.S. 304 (2002), explaining that a national consensus had been reached against executing the mentally ill after state legislatures adopted new laws limiting the practice following Penry.
8 They killed him … Peter Applebome, “2 Electric Jolts in Alabama Execution,” New York Times (July 15, 1989), available at www.nytimes.com/1989/07/15/us/2-electric-jolts-in-alabama-execution.html, accessed April 30, 2014; see also “Two Attempts at Execution Kill Dunkins,” Gadsden Times (July 14, 1989), available at http://news.google.com/newspapers?id=02cfAAAAIBAJ&sjid=3NQEAAAAIBAJ&pg=3122%2C1675665, accessed April 30, 2014.
9 The Court decided to bar claims … Rose v. Lundy, 455 U.S. 509 (1982).
10 the Court rejected a constitutional challenge … Stanford v. Kentucky, 492 U.S. 361 (1989); Penry, 492 U.S. at 305; McCleskey v. Kemp, 481 U.S. 279 (1987).
11 “Let’s get on with it”… Bryan Stevenson, “The Hanging Judges,” The Nation (October 14, 1996), 12.
12 “Mr. Stevenson, I’m calling to let you know”… Richardson v. Thigpen, 492 U.S. 934 (1989).
13 I thought about the botched execution … Applebome, “2 Electric Jolts in Alabama Execution.”
CHAPTER FIVE: OF THE COMING OF JOHN
1 Monroe County is a “dry county”… Monroe County is now technically considered “moist.” The city of Monroeville and Frisco have approved laws permitting the sale of some alcoholic beverages.
CHAPTER SIX: SURELY DOOMED
1 Alabama had more juveniles sentenced to death … Victor L. Streib, Death Penalty for Juveniles (Bloomington: Indiana University Press, 1987).
2 While the Supreme Court had upheld … Stanford v. Kentucky, 492 U.S. 361 (1989); Thompson v. Oklahoma, 487 U.S. 815 (1988); Wilkins v. Missouri was consolidated with the Stanford decision.
CHAPTER SEVEN: JUSTICE DENIED
1 We found court records revealing … Giglio v. United States, 405 U.S. 150 (1972); Mooney v. Holohan, 294 U.S. 103 (1935).
2 Some states authorized the family … Peggy M. Tobolowsky, “Victim Participation in the Criminal Justice Process: Fifteen Years after the President’s Task Force on Victims of Crime,” New England Journal on Criminal and Civil Confinement 25 (1999): 21, available at http://heinonline.org/HOL/Page?handle=hein.journals/nejccc25&div=7&g_sent=1&collection=journals, accessed April 30, 2014.
3 Thirty-six states enacted laws … Booth v. Maryland, 482 U.S. 496, 509n12 (1987).
4 The Court agreed … Booth v. Maryland, 482 U.S. 496, 506n8 (“We are troubled by the implication that defendants whose victims were assets to their community are more deserving of punishment than those whose victims are perceived to be less worthy”).
5 The Court’s decision was widely criticized … Payne v. Tennessee, 501 U.S. 808, 827 (1991) (“A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim’s family is relevant to the jury’s decision as to whether or not the death penalty should be imposed”).
6 States found countless ways … Tobolowsky, “Victim Participation,” 48–95.
7 Some states made executions … Michael Lawrence Goodwin, “An Eyeful for an Eye—An Argument Against Allowing the Families of Murder Victims to View Executions,” Brandeis Journal of Family Law 36 (1997): 585, available at http://heinonline.org/HOL/Page?handle=hein.journals/branlaj36&div=38&g_sent=1&collection=journals, accessed April 30, 2014.
8 Megan’s Law, for example … Scott Matson and Roxanne Lieb, “Megan’s Law: A Review of State and Federal Legislation,” Washington State Institute for Public Policy (October 1997), available at www.wsipp.wa.gov/rptfiles/meganslaw.pdf, accessed June 13, 2013.
9 Press coverage hyped the personal nature … Chris Greer and Robert Reiner, “Mediated Mayhem: Media, Crime, Criminal Justice,” in The Oxford Handbook of Criminology, ed. Mike Maguire, Rodney Morgan, and Robert Reiner (New York: Oxford University Press, 2002), 245–78.
10 The study conducted for that case … McCleskey v. Kemp, 481 U.S. 279, 286 (1987), citing David C. Baldus et al., “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology 74 (1983): 661.
11 In Alabama, even though 65 percent … American Bar Association, “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Alabama Death Penalty Assessment Report” (June 2006), available at www.americanbar.org/content/dam/aba/migrated/moratorium/assessmentproject/alabama/report.authcheckdam.pdf, accessed June 14, 2013.
12 Black defendant and white victim pairings … McCleskey v. Kemp, 481 U.S. 286–87, citing Baldus et al., “Comparative Review”; U.S. General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities, 1990, GAO/GGD-90-57 (“In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks”).
CHAPTER EIGHT: ALL GOD’S CHILDREN
1 The extraordinarily high rates … The Chester Upland school district has in the past two decades often ranked as the worst in the Commonwealth of Pennsylvania. James T. Harris III, “Success amid Crisis in Chester,” Philly.com (February 16, 2012), available at http://articles.philly.com/2012-02-16/news/31067474_1_school-district-curriculum-parents-and-guardians, accessed April 30, 2014.
2 Close to 46 percent … In 2012, it was estimated by the Census Bureau that 45.6 percent of Chester’s residents under the age of eighteen lived below the federal poverty level. U.S. Census Bureau, 2008–2012 American Community Survey, Chester city, Pennsylvania.
3 Defendants who are deemed incompetent … 50 Pennsylvania Consolidated Statutes § 7402.
4 Pennsylvania sentencing law was inflexible … Until 2012, anyone convicted of first- or second-degree murder automatically received a sentence of life imprisonment without the possibility of parole. 18 Pennsylvania Consolidated Statutes § 1102; 61 Pennsylvania Consolidated Statutes § 6137. Life imprisonment without parole is possible, though no longer mandatory, for juveniles convicted of first- or second-degree murder. 18 Pennsylvania Consolidated Statutes § 1102.1.
5 “This is the saddest case I’ve ever seen”… Liliana Segura, “Throwaway People: Teens Sent to Die in Prison Will Get a Second Chance,” The Nation (May 28, 2012).
6 For a tragic crime committed at fourteen … Segura, “Throwaway People”; Commonwealth v. Garnett, 485 A.2d 821 (Pa. Super. Ct. 1984).
7 It wasn’t until 2008 that most states … The Federal Bureau of Prisons adopted a policy in 2008 that restricts the shackling of pregnant inmates. Federal Bureau of Prisons, “Program Statement: Escorted Trips, No. 5538.05” (October 6, 2008), available at www.bop.gov/policy/progstat/5538_005.pdf, accessed April 30, 2014. Currently twenty-four states have laws or policies that prevent or restrict the shackling of pregnant inmates or inmates giving birth. Dana Sussman, “Bound by Injustice: Challenging the Use of Shackles on Incarcerated Preg
nant Women,” Cardozo Journal of Law and Gender 15 (2009): 477; “State Standards for Pregnancy-Related Health Care and Abortion for Women in Prison,” American Civil Liberties Union, available at www.aclu.org/maps/state-standards-pregnancy-related-health-care-and-abortion-women-prison-map, accessed April 28, 2014.
8 The guard appealed … Garnett v. Kepner, 541 F. Supp. 241 (M.D. Pa. 1982).
9 She is one of nearly five hundred people … Paula Reed Ward, “Pa. Top Court Retains Terms for Juvenile Lifers,” Pittsburgh Post-Gazette (October 30, 2013); “Juvenile Life Without Parole (JLWOP) in Pennsylvania,” Juvenile Law Center, available at http://jlc.org/current-initiatives/promoting-fairness-courts/juvenile-life-without-parole/jlwop-pennsylvania, accessed April 26, 2014.
10 The correctional staff at the prison … Meg Laughlin, “Does Separation Equal Suffering?” Tampa Bay Times (December 17, 2006).
11 Juveniles housed in adult prisons … In enacting the Prison Elimination Act of 2003, Congress found that juveniles in adult facilities are five times more likely to be sexually assaulted. 42 U.S.C. § 15601(4).
12 As he sank deeper into despair … Laughlin, “Does Separation Equal Suffering?”
13 By 2010, Florida had sentenced … Florida had sentenced a total of seventy-seven juveniles to life imprisonment without parole for non-homicide offenses. Brief of Petitioner, Graham v. Florida, U.S. Supreme Court (2009); Paolo G. Annino, David W. Rasmussen, and Chelsea B. Rice, Juvenile Life without Parole for Non-Homicide Offenses: Florida Compared to the Nation (2009), 2, table A.
14 several of whom were thirteen years old … Two thirteen-year-olds in Florida, including Joe Sullivan, had been sentenced to life imprisonment without parole for non-homicide offenses. Annino, Rasmussen, and Rice, Juvenile Life without Parole for Non-Homicide Offenses, chart E (2009).
15 All of the youngest …“Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison,” Equal Justice Initiative (2008), available at http://eji.org/eji/files/Cruel%20and%20Unusual%202008_0.pdf, accessed April 30, 2014.
16 Florida had the largest population … The United States is the only country in the world that sentences juveniles to die in prison for non-homicide offenses, and Florida has sentenced far more such offenders to life without parole than any other state. Annino, Rasmussen, and Rice, Juvenile Life without Parole for Non-Homicide Offenses, chart E.
17 “He was excited to take his picture”… In re Nunez, 173 Cal.App. 4th 709, 720 (2009).
18 He got his hands on a gun … In re Nunez, 173 Cal.App. 4th 709, 720–21 (2009).
19 Many adults convicted of attempted murder …“Violent Crimes,” Florida Department of Corrections, available at www.dc.state.fl.us/pub/timeserv/annual/section2.html, accessed January 9, 2014; Matthew R. Durose and Patrick A. Langan, “Felony Sentences in State Courts, 2004,” Bureau of Justice Statistics (July 2007), available at www.bjs.gov/content/pub/pdf/fssc04.pdf; “State Court Sentencing of Convicted Felons 2004—Statistical Tables,” Bureau of Justice Statistics (2007), available at www.bjs.gov/content/pub/html/scscf04/scscf04mt.cfm, accessed January 10, 2013.
20 For instance, in the infamous … James Goodman, Stories of Scottsboro (New York: Pantheon Books, 1994), 8.
21 Within hours of announcing … David I. Bruck, “Executing Teen Killers Again: The 14-Year-Old Who, in Many Ways, Was Too Small for the Chair,” Washington Post (September 15, 1985).
22 Despite appeals from the NAACP … Bruck, “Executing Teen Killers Again.”
23 Witnesses to the execution … Bruck, “Executing Teen Killers Again.”
24 Recently, an effort has been launched … George Stinney’s family members are now seeking a new trial or exoneration for Stinney through the court system. Hearings were held in a South Carolina court in January 2014. Alan Blinder, “Family of South Carolina Boy Put to Death Seeks Exoneration 70 Years Later,” New York Times (January 22, 2014); Eliott C. McLaughlin, “New Trial Sought for George Stinney, Executed at 14,” CNN.com (January 23, 2014).
25 Influential criminologists predicted …“Super-predator” language was commonly used in conjunction with dire predictions that a vast increase in violent juvenile crime was occurring or about to occur. See Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, “Juvenile Justice: A Century of Change” (1999), 4–5, available at www.ncjrs.gov/pdffiles1/ojjdp/178993.pdf, accessed April 30, 2014. See, for example, Sacha Coupet, “What to Do with the Sheep in Wolf’s Clothing: The Role of Rhetoric and Reality About Youth Offenders in the Constructive Dismantling of the Juvenile Justice System,” University of Pennsylvania Law Review 148 (2000): 1303, 1307; Laura A. Bazelon, “Exploding the Superpredator Myth: Why Infancy Is the Preadolescent’s Best Defense in Juvenile Court,” New York University Law Review 75 (2000): 159. Much of the frightening imagery was racially coded; see, for example, John J. DiIulio, “My Black Crime Problem, and Ours,” City Journal (Spring 1996), available at www.city-journal.org/html/6_2_my_black.html, accessed April 30, 2014 (“270,000 more young predators on the streets than in 1990, coming at us in waves over the next two decades … as many as half of these juvenile super-predators could be young black males”); William J. Bennett, John J. DiIulio Jr., and John P. Walters, Body Count: Moral Poverty—And How to Win America’s War Against Crime and Drugs (New York: Simon and Schuster, 1996), 27–28.
26 Sometimes expressly focusing on black … John J. DiIulio Jr., “The Coming of the Super-Predators,” Weekly Standard (November 27, 1995), 23.
27 Panic over the impending crime … Bennett, DiIulio, and Walters, Body Count, 27. See also Office of Juvenile Justice and Delinquency Prevention, “Juvenile Justice.”
28 The juvenile population in America increased … See, for example, Elizabeth Becker, “As Ex-Theorist on Young ‘Superpredators,’ Bush Aide Has Regrets,” New York Times (February 9, 2001), A19.
29 In 2001, the surgeon general … U.S. Surgeon General, Youth Violence: A Report of the Surgeon General (2001), ch. 1, available at www.ncbi.nlm.nih.gov/books/NBK44297/#A12312, accessed April 30, 2014; see also U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention, “Challenging the Myths” (2001), 5, available at www.ncjrs.gov/pdffiles1/ojjdp/178995.pdf, accessed April 30, 2014 (“[A]nalysis of juvenile homicide arrests also leads to the conclusion that juvenile superpredators are more myth than reality”).
30 We decided to publish a report …“Cruel and Unusual.”
Chapter NINE: I’M HERE
1 “Me, I can simply look”… McMillian v. Alabama, CC-87-682.60, Testimony of Ralph Myers During Rule 32 Hearing, April 16, 1992.
CHAPTER TEN: MITIGATION
1 In the 1960s and 1970s … In these decades, legislative and judicial reforms tightened the procedures by which individuals where subject to involuntary commitment. Stanley S. Herr, Stephen Arons, and Richard E. Wallace Jr., Legal Rights and Mental Health Care (Lexington, MA: Lexington Books, 1983). In 1978, the United States Supreme Court raised the burden on states seeking to have individuals involuntarily committed to mental health hospitals from the low “preponderance of the evidence” standard to a more difficult “clear and convincing evidence” standard. Addington v. Texas, 441 U.S. 418 (1978).
2 Today, over 50 percent of prison … Doris J. James and Lauren E. Glaze, “Mental Health Problems of Prison and Jail Inmates,” Special Report, Bureau of Justice Statistics (September 2006), available at http://bjs.gov/content/pub/pdf/mhppji.pdf, accessed July 2, 2013. This number breaks down to 56 percent percent of state prisoners, 45 percent of federal prisoners, and 64 percent of local jail prisoners. In total, that accounts for an estimated 1,264,300 inmates. This study is the most comprehensive recent study available and yet was conducted in 2005, so numbers may have changed in more recent years. However, c
urrent sources (2012–13) still cite this study, so I feel comfortable concluding that it is still the most comprehensive and up-to-date source on the subject.
3 Nearly one in five prison … The category of “serious mental illness” includes schizophrenia, schizophrenia spectrum disorder, schizoaffective disorder, bipolar disorder, brief psychotic disorder, delusional disorder, and psychotic disorders not otherwise specified. This is distinguished from the more general category of “mental illness,” which encompasses serious mental illness as well as other forms of mental illness. E. Fuller Torrey, Aaron D. Kennard, Don Eslinger, Richard Lamb, and James Pavle, “More Mentally Ill Persons Are in Jails and Prisons Than Hospitals: A Survey of the States,” Treatment Advocacy Center (May 2010), available at www.treatmentadvocacycenter.org/storage/documents/final_jails_v_hospitals_study.pdf, accessed July 2, 2013.
4 In fact, there are more than three … Torrey et al., “More Mentally Ill Persons,” 1.
5 They began squabbling with each other … The dispute is discussed in George’s subsequent appeals. Daniel v. State, 459 So. 2d 944 (Ala. Crim. App. 1984); Daniel v. Thigpen, 742 F. Supp. 1535 (M.D. Ala. 1990).
6 George was convicted … Daniel v. State, 459 So. 2d 944 (Ala. Crim. App. 1984).
7 We eventually won a favorable ruling … Daniel v. Thigpen, 742 F. Supp. 1535 (M.D. Ala. 1990).
8 Confederate Memorial Day was declared a state holiday … Confederate Memorial Day was first celebrated in Alabama in 1901. See The World Almanac and Encyclopedia 1901 (New York: Press Publishing Co., 1901), 29; “Confederate Memorial Day,” Encyclopedia of Alabama, available at www.encyclopediaofalabama.org/face/Article.jsp?id=h-1663, accessed April 28, 2014. The holiday remains in the state code today. Ala. Code § 1-3-8.
9 When black veterans returned … The 1948 platform of the Dixiecrat party stated, in part: “We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one’s associates; to accept private employment without governmental interference, and to earn one’s living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program.” “Platform of the States Rights Democratic Party, August 14, 1948,” The American Presidency Project, available at www.presidency.ucsb.edu/ws/index.php?pid=25851#axzz1iGn93BZz, accessed April 28, 2014.