Update: Intellectually Disabled Georgia Man Faces Monday Execution if Supreme Court Does Not Step In

KANSAS CITY, Kan. — The death penalty in Kansas is racist, unconstitutional, and irretrievably broken, said witnesses in a series of hearings challenging the state’s use of capital punishment and the practice of death qualification in jury selection. Over the course of a week in October and concluding today, the American Civil Liberties Union, the ACLU of Kansas, the Kansas Death Penalty Defense Unit, Hogan Lovells, Democracy Forward, and Ali & Lockwood presented expert testimony from historians and legal experts demonstrating that the death penalty in Kansas undermines the principles at the core of our legal system. “The testimony presented throughout these hearings has made it abundantly clear that the death penalty in Kansas is unjust and unconstitutional,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “Every step of the capital process is rife with racism and error, from who gets charged to who sits on capital juries. The expert testimony has conclusively proved what we have long known to be true: If you are charged with capital murder, you are effectively denied your constitutional right to a fair trial.” The case, filed in October, challenges the constitutionality of the death penalty in Kansas as well as death qualification, the practice of jury selection in capital cases which dictates that a prospective juror must be willing to impose the death penalty to serve on a capital jury. By systemically excluding groups that are more likely to oppose capital punishment, this practice disproportionately discriminates against Black people, women, and people of faith. Monsignor Stuart Swetland, president of Donnelly College, testified about the discriminatory impacts of death qualification because of his faith. “The death penalty is a direct attack on human dignity—something no one can lose, no matter what crime they’ve committed,” said Monsignor Swetland. “As Catholics, we’re called to respect and protect that dignity, which is why we work to abolish the death penalty worldwide. But here in death penalty trials across the country, people like me are excluded from serving on capital juries simply because of our faith. This exclusion undermines the principle of a jury as the conscience of the community and silences a large segment of the population in critical decisions about life and death.” Professor Scott Sundby presented overwhelming evidence that death qualification results in juries that are more likely to convict than other juries, ultimately creating an unfair trial for capital defendants. Local studies in Sedgwick and Wyandotte Counties, conducted and presented by Mona Lynch, reinforce what national studies of death qualification repeatedly show: Black prospective jurors are significantly more likely to oppose the death penalty and distrust the criminal justice system, and more likely to be excluded for opposition to the death penalty as part of the death qualification. Professor Elisabeth Semel presented evidence about the discriminatory use of peremptory strikes, which compounds the discriminatory effects of death qualification. Professors Shawn Alexander and Brent M. S. Campney testified about the legacy of racism in Kansas, drawing connections between the state’s history of societal exclusion, racial terror, and police violence and its application of the death penalty today. “Kansas has a long and troubling history of racist violence against Black communities,” said Campney. “Racial violence in the state has taken many forms over the years, from mob lynchings in the 1800s to police violence in the 20th century, but the goal has always been the same: to exert control over Black communities. This legacy of racial terror continues to cast a long shadow over the state’s criminal legal system today.” Professor and expert on police practices, Charles Epp, presented a study that shows a modern-day variation of these themes, wherein Black residents of Wyandotte County described mistreatment by police leading to a profound distrust of law enforcement, a fact which itself contributes to their exclusion by the death qualification process. Three scholars conducted statistical analyses across Kansas that revealed one uniform truth: Capital charging decisions are impermissibly influenced by race. Professor Frank Baumgartner presented a statewide study that showed that death sentences are sought more often when the victim is white or female, and particularly when the victim is both white and female. Law professor and criminologist Jeff Fagan presented a second study, in Sedgwick County, indicating the same. Finally, Professor Brent Never of the University of Missouri, Kansas City, examined capital charging decisions in the Wyandotte County District Attorney’s Other historians and legal experts testified about the fundamental flaws with the death penalty. Brittany Street, economics professor at University of Missouri, testified about the enormous costs associated with the death penalty, highlighting how these tax dollars could be better spent on crime prevention and community programs. In addition to sharing results of his Sedgwick County charging study, Professor Fagan presented evidence that the death penalty has no deterrent effect on homicides. Executive director of the Midwest Innocence Project, Tricia Bushnell, and law professor, Carol Steiker, testified about the myriad unconstitutional aspects of capital punishment, including the well-documented failure to protect the innocent. “Researchers have tried to extrapolate from the known number of people who have been exonerated off of death row to the likely rate of mistakes in capital cases, and they say their conservative estimate, is 4 percent, or one in 25,” said Steiker. “If someone said one in 25 airplanes will crash, no one would fly. And yet we accept the fact that one in 25 people convicted of a capital crime are innocent. It is clear that the American death penalty is irretrievably broken; it cannot be fixed.”

RALEIGH, NC – The American Civil Liberties Union, the Legal Defense Fund, the Center for Death Penalty Litigation, and attorney Jay Ferguson praised North Carolina Gov. Roy Cooper for commuting the death sentences of 15 people, including Hasson Bacote, who brought the lead case challenging the death penalty under North Carolina’s Racial Justice Act (RJA). Today’s commutations, the first of this scale in North Carolina, are a step towards addressing the harms and racial disparities of the death penalty in North Carolina, which has the fifth largest death row in the country. Hasson Bacote, a Black man sentenced to death in 2009, first filed litigation in 2010 challenging his sentence on the grounds that race played an impermissible role in jury selection in his case, and in all death penalty cases across North Carolina. “We are thrilled for Mr. Bacote and the other 14 people on death row who had their sentences commuted by Governor Cooper today,” said Cassandra Stubbs, director of the ACLU’s Capital Punishment Project. “This decision is a historic step towards ending the death penalty in North Carolina, but the fight for justice does not end here. We remain hopeful that the court will issue a ruling under the state’s Racial Justice Act in Mr. Bacote’s case that we can leverage for relief for the many others that still remain on death row.” The RJA was a novel piece of legislation passed in 2009 that allowed people to challenge their death sentences if they could show race played a role in their trials. Though the state legislature repealed the statute in 2013, the legal team brought a challenge in the North Carolina Supreme Court, which ruled in 2020 that those who had already filed claims under the RJA were entitled to hearings. “The RJA hearing demonstrated that racial bias infiltrates all death penalty cases in North Carolina, not just Mr. Bacote’s and those in Johnston County,” said Ashley Burrell, senior counsel at the Legal Defense Fund. “Today’s decision is one step closer towards redressing the death penalty’s long history of racialized, systemic violence.” During the hearings in Hasson Bacote’s case, prominent historians, statisticians, and other researchers who gave expert testimony, put forth an unprecedented showing of discrimination against Black defendants by prosecutors in jury selections across North Carolina, as well as by juries in Johnston County. Bacote’s attorneys also presented evidence linking modern death sentences to the state’s history of racial terror and violence. Superior Court Judge Wayland J. Sermons, Jr. presided over the hearing. “Mr. Bacote brought forth unequivocal evidence, unlike any that’s ever been presented in a North Carolina courtroom, that the death penalty is racist,” said Shelagh Kenney, deputy director of the Center for Death Penalty Litigation. “Through years of investigation and the examination of thousands of pages of documents, his case revealed a deep entanglement between the death penalty and North Carolina’s history of segregation and racial terror. We are happy Mr. Bacote got the relief he deserves, and we hope Governor Cooper’s action will be a step toward ending North Carolina’s racist and error-prone death penalty for good.” The judge has yet to rule in Bacote’s case, which has the potential to affect the cases of everyone else on death row. Although Bacote has now been awarded relief from death row by the governor, counsel expect that the judge will still issue a ruling because of the widespread public interest in the case and the relevance of the evidence for death row prisoners statewide. Bacote is represented by the American Civil Liberties Union's Capital Punishment Project, the ACLU of North Carolina, the Legal Defense Fund, the Center for Death Penalty Litigation, and Durham attorney Jay H. Ferguson.

WASHINGTON – The American Civil Liberties Union celebrates President Biden’s historic action in commuting 37 federal death sentences. In making this decision, President Biden has taken an unequivocal stand against one of the most flawed and inhumane mechanisms of the U.S. criminal legal system. Biden’s groundbreaking action comes after hundreds of organizations across the political and faith spectrums, including more than 130 civil and human rights organizations, faith leaders, exonerees, family members of victims, and law enforcement officials called on the President to commute federal death row. Anthony D. Romero, executive director of the ACLU, released the following statement: “President Biden took a historic and courageous step in addressing the failed death penalty in the United States – bringing us much closer to outlawing the barbaric practice once again. By commuting the sentences of 37 individuals on death row, President Biden has taken the most consequential step of any president in our history to address the immoral and unconstitutional harms of capital punishment. With a stroke of his pen, the President locks in his legacy as a leader who stands for racial justice, humanity, and morality. This will undoubtedly be one of the seminal achievements of the Biden presidency. “President Biden has reaffirmed the power of redemption over retribution and reminds us that state-sanctioned killing does not make us safer. The ACLU has long advocated against the death penalty and shed light on its fundamental flaws: it is error prone, racially biased, and a drain on public resources. And although we had hoped President Biden would commute all federal death sentences for those reasons, today's milestone brings us much closer to our goal of outlawing the death penalty once and for all. “President Biden has shown our country – and the rest of the world – that the brutal and inhumane policies of our past do not belong in our future. By commuting 37 federal death row sentences, he has paved the way for other elected officials to build on his legacy of racial justice, humanity and morality by commuting state death rows and passing legislation to abolish capital punishment. “President Biden’s actions also remove 37 individuals out of harm’s way – as President-elect Trump has a proven penchant and track record of conducting rushed executions. In the last six months of his first term, President Trump executed 13 individuals – more than any administration in 120 years. “The ACLU is proud to join countless advocates and civil and human rights organizations in thanking President Biden for his leadership and commitment to the highest principles of justice and humanity.” In 2020, President Biden made history as the first president to openly oppose the death penalty. Under his leadership, the Department of Justice acknowledged the death penalty’s disparate impact on people of color as well as the 200 people who have been sentenced to death and subsequently exonerated over the past five decades. Martin Luther King III, Sister Simone Campbell, Rev. Ralph McCloud, and exoneree Herman Lindsey – all prominent advocates for ending capital punishment – shared a video thanking President Biden here. The ACLU is ready on day one of the incoming Trump administration to challenge any unconstitutional expansion of the death penalty and any attempts to return to regressive killing methods. At the state-level, the ACLU will build on work against the death penalty, including ongoing litigation in states like Kansas and North Carolina, to invalidate capital punishment based on its racist administration, including in the selection of jury members. The letter sent to President Biden from 134 civil and human rights organizations is here. More on ACLU’s work to end capital punishment is here.