The views expressed in this blog are not necessarily those of TCP, its committees, or boards. 

La fecha de ejecución de Ramiro Hernández está programada para hoy, 9 de abril, en Texas. Fue hallado culpable de un homicidio cometido en 1997.

El caso de señor Hernández está relacionado con un principio fundamental de justica: la igualdad ante la ley. La suspensión de su ejecución debe ser concedida debido a que varios tirbunales determinaron, sin considerar criterios clinicos, que no tenía discapacidad intelectual (retraso mental) y, por lo tanto, podría ser condenado muerte.... Read More

Ramiro Hernandez is scheduled for execution on April 9 in Texas for a homicide committed in 1997. Mr. Hernandez’s case involves the hallmark principle of justice that we are all equal under the law and a reprieve should be granted in his case in light of the failure of the courts to address the serious question of whether he is even eligible for the death penalty because he is a person with intellectual disability (mental retardation).

For compelling reasons, execution of individuals with intellectual disability is prohibited by the Eighth Amendment of the U.S. Constitution. Intellectual disability affects moral blameworthiness. As the United States Supreme Court found in its decision in Atkins v. Virginia in 2002, people with intellectual disability are unable to fully appreciate the consequences of their actions. For that reason, they are inherently lacking in the moral blameworthiness that might warrant a death sentence. In making those findings, the Supreme Court acknowledged a national consensus that people with intellectual disability must be categorically exempt from the death penalty, and held that execution of those with intellectually disability is accordingly unconstitutional.... Read More

The Senate Intelligence Committee just took a courageous and critical step towards making sure that an awful chapter of our history won’t repeat itself. In a bipartisan vote of 11-3, the committee decided to send for declassification the 480-page executive summary and 20 findings and conclusions of its more than 6,000 page report on the CIA’s post-9/11 rendition, detention and interrogation (RDI) program. The ball is now squarely in President Obama’s court.

On March 12, the President said that he is “absolutely committed to declassifying the report” in order to help the American people better understand what its government did in their name, and to ensure that we learn from terrible mistakes. Here’s how he can meaningfully fulfill that promise:... Read More

Public support of the death penalty has significantly waned, just in the past two years alone, according to a new poll from the Pew Research Center. The Pew data shows that 55% of American adults supported the death penalty in 2013, a six-percent drop from 2011. Over the same two years, the opponents to the death penalty increased by the same amount, from 31% to 37%.

Not only has public support decreased, but so has the frequency at which people are executed in U.S. The number of executions has decreased dramatically since its peak in 1999 and is, in fact, practiced in only a handful of states and counties within those states. A great graphic from the Pew Research Center illustrates the highly concentrated nature of the administration of the death penalty.... Read More

In late January, Missouri executed Hebert Smulls for the 1991 killing of a jewelry storeowner during a robbery. This alone is unremarkable, except that Smulls wanted Missouri to tell him exactly how he was to die—that is, he wanted to know which drugs would Missouri use to kill him and where it would get them. Smulls argued that Missouri’s drug cocktail—pentobarbital—was not pure and could induce severe pain and suffering in violation of the Eighth Amendment; Missouri refused to tell him where they procured the drug, calling such information a “state secret.” Yet no court stopped the execution, despite new calls for death row inmates to know how they will die.

As more and more states face shortages of drugs for executions because manufacturers balk at supplying them, the states are turning to compounding pharmacies to procure the necessary drug cocktails. But compounding pharmacies, which combine other drugs and compounds to create the needed pharmaceutical product, are not regulated by the Food and Drug Administration (FDA), nor are they subject to the numerous safeguards and safety protocols of traditional drug manufacturers. New legislation attempts to broaden the FDA’s authority, but it remains to be seen exactly how this regime will play out. Thus, what states end up with may be nothing close to the original drug—and may not work as planned, leading to severe pain and suffering. ... Read More

The views expressed in this blog are not necessarily those of TCP, its committees, or boards.

Arizona opened a Pandora’s Box on February 27 when its Republican-controlled legislature passed a “religious freedom” bill (on largely party-line votes) that would allow any individual or business with a sincerely held religious belief from serving gays and lesbians. Opponents of the bill decried it as a license to discriminate against gays, lesbians, bisexuals, and transgendered (LGBT) individuals—though the legislation’s plain text allowed for discrimination against anyone, including those of other faiths, for religious reasons. Proponents of the bill saw it as a shield to protect individuals and businesses with traditional religious viewpoints from lawsuits as more states legalize same-sex marriage.

Governor Jan Brewer, a Republican, vetoed the bill, a foregone conclusion as both Arizona Senators (both of whom are Republicans), the business community at large, and even former Republican presidential candidate Mitt Romney urged her to veto it. The NFL, hosting the Super Bowl next year in Glendale, AZ, began exploring alternate venues—an economic catastrophe if ever there was one. Even three Republican state senators reneged on their yes votes (though mainly due to the bill’s backlash by Arizona businesses, rather than any policy disagreement). Still, this tug of war between religious rights and public accommodations laws is far from over. Arizona, the first to pass a “religious freedom” bill, is not alone considering such laws: Kansas, Idaho, Missouri, Georgia, and other states are in various stages of enacting similar legislation. Governor Brewer’s veto obviates a costly lawsuit, draining vital state resources, and the widespread backlash seems to have spooked other state legislatures from enacting the legislation anytime soon. Yet try and try the proponents will.... Read More

On March 3, the U.S. Supreme Court heard oral arguments in Hall v. Florida concerning whether Florida law sufficiently guards against the execution of people with “mental retardation” (intellectual disability), as is required under its 2002 decision in Atkins v. Virginia. Florida’s current means of determining that a person is mentally disabled—and, hence, ineligible for execution—is if he or she scores 70 or below on a standard IQ test. However, it is universally accepted that all IQ tests must be interpreted taking into account their inherent standard error of measurement. Hall’s counsel argued that the state must consider the five percent margin of error included in IQ tests, much as it does in other instances when mental disability is measured, such as in the educational and vocational contexts. Hall took nine different IQ tests between 1968 and 2008, with an average score of less than 73.

Florida is one of only five states that use a rigid IQ test score cutoff of 70 or below for determining mental retardation, while barring consideration of the standard error of measurement. Further, Florida fails to consider the “adaptive functioning” of a person (i.e., his or her ability to deal with social situations and other real-world challenges), or if mental retardation was present prior to adulthood (a Florida court recognized Mr. Hall as being “mentally retarded his entire life”).... Read More

It is no secret that our criminal justice system has become increasingly more punitive within the last few decades. The longer, harsher sentences currently being administered are not always proportional to the severity of the crime (or, if already imprisoned, the infraction) committed. One such form of punishment is solitary confinement which, as of late, has garnered greater attention and has raised questions about the morality and legality of some aspects of our criminal justice system.

On February 25, the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights held a hearing entitled “Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences” to address the use of solitary confinement in U.S. prisons, specifically for juveniles, pregnant women and the severely mentally ill. The hearing, presided over by Subcommittee Chairman Dick Durbin (D-IL), included testimony from those who have first-hand experience with the practice of solitary confinement, including prisoners who had been subjected to solitary confinement, and prison officials responsible for implementing the practice. Both sides agreed that there are significant flaws in how, and to whom, solitary confinement is administered.... Read More

Here at The Constitution Project, we often talk of the role that state actors – particularly law enforcement, defense lawyers, and the courts – must play in order to prevent miscarriages of justice such as wrongful convictions. We believe that in too many cases, forces external to our justice system act as a failsafe. Time and time again, for example, journalists have rung the alarm, revealing mishandled, withheld, or fabricated evidence, or incompetent or overwhelmed defense lawyers. It is well-known that the journalism students at Northwestern were responsible for shedding light on the systemic error in capital cases in Illinois that led then-Governor George Ryan to eventually commute over 150 death sentences in that state. A journalist at The New Yorker exposed the serious doubts about the guilt of Cameron Todd Willingham, who was executed by Texas in 2004. And a Louisville Courier-Journal Reporter appears to be the only source of information in Kentucky concerning the misconduct of prosecutors, judges, and defense counsel in the case of Gregory Wilson, who remains on Kentucky’s death row. In short, the media are often credited with righting wrongs in our system of justice and raising important questions that must be answered by those in positions of power.... Read More

The Constitution Project frecuentemente analiza el papel que deben tener los actores estatales -particularmente los agentes de procuración de justicia, abogados defensores y tribunales- para evitar errores, como son las convicciones penales equivocadas. En un buen número de casos, fuerzas externas al sistema de justicia actúan para detener estas fallas. En más de una ocasión, los periodistas han sonado las alarmas sacando a la luz malos manejos, ocultación o fabricación de pruebas o la incompetencia y las cargas abrumadoras de trabajo de los abogados defensores. Así, estudiantes de periodismo de Northwestern University pusieron los reflectores en los sistemáticos errores en la impartición de la pena de muerte en Illinois, lo que llevó al entonces gobernador George Ryan a conmutar cerca de 150 condenas en ese estado. Un peridodista del New Yorker expuso las serias dudas sobre la culpabilidad de Cameron Todd Willingham, ejecutado en Texas en 2004. Igualmente un reportero del Louisville Courier-Journal fue la única fuente de información en Kentucky que ventilo las irregularidades de fiscales, jueces y abogados defensores en el caso de Gregory Wilson, quien continúa en el pabellón de la muerte. En suma, a menudo los medios corrigen errores en el sistema de justicia al presentar importantes problemas que deben enderezar quienes detentan el poder. ... Read More

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