Exonerated men still lose decades of their lives

New informatio­n leading to exoneratio­n of inmates sentenced to die shows the risks of a criminal justice system in which innocent could be executed

- Richard Wolf and Kevin Johnson

Second of two parts

Anthony Ray Hinton figures he was within a year, maybe two, of being executed.

Hinton was nearing his 30th year on Alabama’s death row when the Supreme Court, in a little-noticed decision last year, granted him a hearing because of a defense lawyer’s mistakes during his murder trial in 1985.

That led to a new review of ballistics evidence used to convict Hinton of two murders half a lifetime ago, when he was 29. Although prosecutio­n witnesses had testified the bullets came from a gun found in Hinton’s mother’s home, defense experts hired this year found no such connection.

The case fell apart, and in April, Hinton was freed. “Being on death row has taken so much from me as a human being,” he says. “I spent 30 years on death row for something I didn’t do.”

While a dramatic reduction in death sentences has spared hundreds of defendants from the ultimate penalty, the roughly 3,000 people on death row are avoiding the execution chamber largely as a result of legal battles, political backlash, medical and moral debates over execution methods — and new informatio­n that has led to 155 exoneratio­ns.

Hinton became the 152nd death row prisoner exonerated since 1973. Many of them are poster children for the myriad problems cited in June by two Supreme Court justices who questioned the constituti­onality of the death penalty.

Hinton, who is black, was an apparent victim of racial discrimina­tion. He was convicted in a county known for delivering death sentences, making him a victim of geographic disparitie­s. And ultimately, the prosecutio­n admitted it no longer had a case.

“If this court had not ordered that Anthony Ray Hinton receive further hearings in state court, he may well have been executed rather than exonerated,” Justice Stephen Breyer wrote in dissent from the court’s decision upholding a controvers­ial form of lethal injection. Hinton will be welcomed back into his mother’s renovated home during an open house next week.

Of all the arguments against capital punishment, none is as powerful as the risk of executing the innocent. Some research estimates that up to 4% of prisoners sentenced to death are just that.

They’re also locked away for ever longer terms before their innocence is determined. The 12 men exonerated in 2014-15 served a combined 322 years in prison, an average of 27 years.

Some apparently innocent people have been put to death. Among those Breyer cited were two Texas men: Carlos DeLuna, executed in 1989 in the fatal stabbing of a single mother, and Cameron Todd Willingham, executed in 2004 in the death of his three young children in an arson fire.

Hinton’s conviction in 1985 pointed out basic problems in the criminal justice system, particular­ly for poor black men. “He was convicted because he didn’t have the money to get the expert assistance he needed at trial,” says Bryan Stevenson, his new lawyer at the Equal Justice Initiative, an Alabama non-profit group that provides legal aid to indigent defenders and prisoners. INJECTIONS ON TRIAL For those who can’t escape death row, the debate on how to execute them rages still, despite the Supreme Court’s ruling in June upholding a controvers­ial drug used by states.

It’s a bone of contention in places such as Davidson County Chancery Court in Tennessee where, for the better part of a month, lawyers for more than 30 inmates argued that the state’s execution protocol is unconstitu­tional. Their legal challenge — similar to others in Florida, Alabama, Mississipp­i, Montana and elsewhere — illustrate­s the difficulty faced by many states seeking to carry out executions.

Despite the justices’ imprimatur, their 5-4 ruling that “the Constituti­on does not require the avoidance of all risk of pain” was hardly a vote of confidence for lethal injection, the preferred method for all states with an active death penalty — itself a dwindling number.

Oklahoma, whose use of the sedative midazolam was challenged by three death row inmates, declared victory and set execution dates in September and October for Richard Glossip, Benjamin Cole and John Grant.

Glossip, facing death Wednesday, has two sets of lawyers battling on separate fronts, and he continues to assert his innocence in what prosecutor­s and jurors concluded was a murder-for-hire in 1997 at the motel he managed in Oklahoma City. The man who beat motel owner Barry Van Treese to death with a baseball bat, Justin Sneed, avoided the death penalty by fingering Glossip as the mastermind.

Glossip’s contention has won support from the likes of British business executive Richard Branson, actress Susan Sarandon and TV’s “Dr. Phil” McGraw. Friday, former U.S. senator Tom Coburn and former University of Oklahoma head football coach Barry Switzer added their names.

Van Treese’s family issued a statement to the Tulsa World contending that the criminal justice system has run its course. “Execution of Richard Glossip will not bring Barry back or lessen the empty hole left in the lives of those who loved Barry,” the statement said. “What it does provide is a sense that justice has been served.”

From his cell on death row, Glossip remained upbeat last week. “If you’re innocent, you can’t just lay back and let them execute you,” he says. “You’ve got to speak out. You’ve got to raise hell.”

Glossip’s legal battle is not unique. In Florida, more than 400 death row inmates await a state Supreme Court ruling on the pending execution of Jerry Correll, who murdered four women 30 years ago. A lower court recently signed off on the planned drug protocol. In Alabama, seven prisoners challengin­g the state’s lethal injection protocol are battling in federal district court.

Last month, a federal judge in Mississipp­i temporaril­y blocked lethal injections after two of the state’s 48 death row inmates protested it would be “chemical torture.” In Lewis and Clark County, Mont., court proceeding­s continued through the summer in a case that dates back seven years and several lethal injection methods. The state’s death row population: two.

The cross-country battle over lethal injection methods has taken on added importance since last year, when inmates in Ohio, Oklahoma and Arizona gasped, moaned or writhed in pain during the administra­tion of a threedrug cocktail including the sedative midazolam. Other protocols have come under attack as well. “It can be quite a horrendous death,” says Ron Waterman, an attorney challengin­g Montana’s use of the drug pentobarbi­tal.

“The cat is out of the bag on midazolam, regardless of what the Supreme Court says,” says Deborah Denno, a law professor at Fordham University. “The department­s of correction­s recognize that this is a problem drug. ... No one wants to be the next one that has a botched execution.”

The debate over lethal injection has energized legislatur­es as well as courts and correction­s department­s. North Carolina and Arkansas approved laws this year that impose secrecy on the source of lethal injection drugs. Arkansas recently purchased a new supply of drugs and scheduled six executions for this fall.

Some states hedge their bets by establishi­ng backup methods. Last year, Tennessee approved the use of the electric chair if le- thal injection drugs are unavailabl­e — a method Virginia used as recently as 2013. In March, Utah opted for the firing squad. In April, Oklahoma selected nitrogen gas. RETREATS AND REPEALS All the controvers­ies surroundin­g the death penalty have led to clashes in state and federal courts from Connecticu­t to California, and in state legislatur­es from New Hampshire to Montana. The legislativ­e efforts showcase a clear trend in favor of retreat or repeal: No states seek to reinstate the death penalty.

Governors have declared moratorium­s in Pennsylvan­ia, Colorado, Oregon and Washington. In Ohio, all executions have been pushed back at least until next year. State legislator­s who came within a vote of repealing the death penalty this year in Delaware, New Hampshire and Montana are sure to try again.

Last month, Connecticu­t’s highest court struck down the death penalty for prisoners already convicted of their crimes, going beyond the Legislatur­e’s prospectiv­e repeal. On the last day of August, a federal appeals court in California heard oral arguments in a case that might even reach the Supreme Court.

Housing roughly 25% of the nation’s 3,000 death row prisoners, California cannot pay enough defense lawyers or settle on a lethal injection method, even as the population at San Quentin continues to grow. The death penalty was narrowly upheld in a referendum in 2012, but attorneys for convicted murderer Ernest Jones noted that only 13 of more than 900 people sentenced to death since 1978 have been executed. The majority will die in prison or spend decades fighting their conviction­s.

“There has been an extreme malfunctio­n in California’s death penalty process,” Michael Laurence, the lead defense lawyer, told a three-judge panel Aug. 31. “The average time it takes from start to finish in the state courts exceeds 20 years.”

This year, Nebraska became the first “red” state to ban capital punishment. The law faces repeal in 2016 after a petition drive by death penalty proponents to put it on the ballot.

The attention Nebraska received overshadow­ed nearmisses in Delaware, where Democratic state Rep. Sean Lynn says the death penalty is applied in discrimina­tory fashion, and Montana, where Republican state Rep. David Moore says the costs are proving to be unaffordab­le.

In New Hampshire, where the Senate deadlocked 12-12 on a repeal bill in April, Rep. Renny Cushing is an unlikely proponent of abolition. His father and brother-in-law were murdered in separate incidents, 23 years and a thousand miles apart.

“The entire death penalty debate is really offender-centered,” Cushing says. “It makes rock stars out of killers.”

Some apparently innocent people have been put to death. Among those Supreme Court Justice Stephen Breyer cited were two Texas men: Carlos DeLuna, executed in 1989, and Cameron Todd Willingham, executed in 2004.

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