American Civil Liberties Union

(Also posted on Daily Kos.)

Last week, South Carolina pardoned two great-uncles of radio personality Tom Joyner, both executed in 1913 for a murder they did not commit. The two African-American men had been falsely accused and wrongfully convicted of killing a white Confederate Army veteran. Historical records demonstrate that the authorities probably declined to prosecute the most likely suspects to avoid revealing that the victim was having an affair with a young black woman in the community.

Despite a recent Untied States Supreme Court decision protecting the rights of indigent death-row inmates seeking executive clemency, Texas has continued to execute people without pausing to give effect to the high court's ruling. As a result, Texas has executed two men — Michael Rosales and Derrick Johnson — who had made strong factual showings of mental retardation but were either not afforded a lawyer or were not allowed a full hearing on their claims.

On April 1, 2009, April Fool's Day, the United States Supreme Court issued its opinion in Harbison v. Bell (PDF), deciding that federal law entitles indigent state death-row prisoners access to clemency counsel — a lawyer appointed by a federal district court to represent prisoners during executive clemency proceedings. The Supreme Court observed that clemency is the last "fail safe" where the judicial process has failed to prevent a "miscarriage of justice." The "fail safe" of clemency in Texas is of critical importance given that the appeals of death-row inmates too often are dismissed based on procedural problems — a defense lawyer filing an appeal late, for example — that are outside prisoners' control.

Harbison overruled various lower federal court decisions, including a 2002 decision that denied the right to appointed clemency counsel to Texas death-row inmates. Since 2002, Texas has executed 180 people denied the right the right to counsel the Harbison decision found was mandated by federal law. What's worse, Rosales and Johnson were executed after the Harbison decision, but without being afforded the protections the decision requires.

(Originally posted on Daily Kos.)

Last night, I saw a grown man cry like a baby. He was kin to Kenneth Wayne Morris, executed by the State of Texas yesterday on his 38th birthday. I was on my way from a capital hearing near Dallas to Texas's death row in Livingston to visit clients. On my way I stopped in Huntsville, where Texas conducts its executions. I had two thoughts when I saw Morris's relative, crying in grief while standing among a crowd of people protesting Morris's death outside the walls of the Huntsville unit, the prison that contains Texas' death chamber.

My first thought was of a story renowned death-penalty lawyer Bryan Stevenson often tells, and my second was of a recent Pew Study concerning prison spending.

I have often heard Stevenson tell about the kind treatment experienced by a client on the day leading up to his execution. In sum, every hour or so, a guard or warden approached the client asking if he needed something: "What would you like for your breakfast today? What would you like for your lunch, dinner, dessert? Would you like to speak with the chaplain? Would you like a telephone call home? Would you like a room where you can meet in private with your family?"

The inauguration of Barack Obama, one day after Martin Luther King Jr. Day, has prompted a healthy discussion in the nation about racial and socioeconomic inequality.

As part of that discussion it is important to point out that, just like the divisions in the Jim Crow south, the death penalty continues to divide us by race and socioeconomic status.

In 1976, when the Supreme Court approved the modern death penalty statutes that were supposed to ensure that death sentences were no longer arbitrary and discriminatory, the Court stated that "capital punishment is an expression of society's moral outrage at particularly offensive conduct . . ."