What We Can Learn About the Death Penalty from the Cases of Two People Scheduled to be Executed Today

Posted in: Criminal Law

On July 20, America will add two more names to the list of people on the roster of those it has put to death as a punishment for crime. One, the execution of James Barber in Alabama, has already received a lot of publicity. The other, Oklahoma’s execution of Jemaine Cannon, has attracted less public attention.

But together they illustrate the continuing injustice and cruelty of America’s death penalty system.

The Cannon case highlights the kinds of people who end up on death row and are put to death. It reminds us that we are not executing the “worst of the worst.”

Instead, the people executed in the United States often are of child abuse, violence, neglect, and the kind of trauma that explains why they commit violent crimes. They get death sentences because of the poor quality of the lawyers who represent them.

The Barber case focuses our attention on another part of the death penalty process: how we kill, the execution methods we use, and the ongoing threat that those methods will be botched. This country has never had a foolproof way of executing people, and none is on the horizon.

Let’s start with the Cannon case.

He was convicted in 1996 of the fatal stabbing of a 20-year-old woman named Sharonda Clark. He had been living with Clark after escaping from prison, where he was serving a 15-year sentence for a violent assault on another woman in 1990.

During his trial for Clark’s murder, Cannon admitted that he stabbed her. He contended that he did so in self-defense after she attacked him when he told her he was going to move out of the apartment they were sharing. He said that he “blindly” swung a knife at Clark in an effort to protect himself.

The prosecution offered evidence to undermine Cannon’s self-defense claim, including photos to show that there were no defensive injuries on his body when he was arrested.

As in many death penalty cases, his trial was not trouble-free. For example, Cannon claims that his lawyers did not inform him of his right to testify in his own defense and that he had wanted to do so to offer evidence about why he stabbed Clark.

He also argues that “they wrongly told him that certain damaging evidence would be admitted for impeachment purposes if—and only if—he were to testify” and that because of those errors, “he did not make a knowing and voluntary waiver of his right to testify.”

Cannon’s defense also was hampered, he says, because he was not provided the funding needed to hire investigators, mental health experts, and a crime scene reconstruction expert.

In his recently denied petition for clemency, Cannon noted that “During the first stage [of the trial] (his) counsel called no witnesses, including Jermaine; introduced no exhibits; made sparse use of State’s exhibits; engaged only in limited cross-examination of State’s witnesses; and had no cross for almost one-third of those witnesses… His current counsel read the defense aloud and estimates that the entire first stage defense took less than one hour….”

“The defense lawyers provided,” the petition alleged, “what can charitably be described as a drive-by defense.”

In the penalty phase of his trial, Cannon’s lawyers did offer evidence that he had been abused as a child and argued that this abuse explained his propensity for violence against women. Cannon had been diagnosed with Complex Post Traumatic Stress Disorder about a year before the death of Sharonda Clark.

As Rev. Don Heath, a member of the Oklahoma Coalition Against the Death Penalty, correctly observes, “It is hard for anyone who grew up in middle-class homes with stable and loving parents to imagine the trauma Mr. Cannon suffered as a child and the role it played in his violent life.”

Today Cannon is nearly blind and hard of hearing. He suffers from a severe inflammatory disease, which affects his eyes, lungs, liver, spleen, bones, and skin, and another degenerative condition that affects his vision. He also has a condition that has produced substantial hearing loss.

Moreover, those who have joined in the effort to stop his execution point out that in the twenty-seven years that Cannon has been on death row, he has shown “no suggestion of violence, substance abuse or any action putting others at risk, advocates say. He continues to have a meaningful relationship with his mother, grandmother, and other friends and relatives.”

Cannon is on death row because he was scarred by violence throughout his life. And, on the cusp of his execution, he hardly seems to be a threat to anyone.

Killing him will not do anything to make the public any safer. But that seems not to matter in Oklahoma.

Its attorney general, Gentner Drummond, welcomes Cannon’s execution, someone he calls a “monster who brutally murdered Sharonda Clark and deprived her two young children of their mother. Justice will be served when the death penalty is carried out July 20.”

Later today, after Oklahoma executes Cannon, Alabama is scheduled to kill James Barber.

While supporters contend that the handling of Barber’s death penalty case, like Cannon’s, was marked by ineffective assistance of counsel, it is the fact that he will be the first person executed in Alabama since it carried out a series of botched executions last year that has drawn nationwide attention.

His also will be the first execution since Gov. Kay Ivey paused executions for the state Department of Corrections to review execution procedures. In February, she announced that the review was finished and that the state was ready to get back into the execution business.

But it is unclear whether Alabama has really fixed the problems that, last year, made it the botched execution capital of the United States. As the Atlantic’s Elizabeth Bruenig notes, “The review was a special one in the history of execution protocol reviews. Other states have reviewed their execution processes and procedures….”

“Those states,” Bruenig says, “formed independent commissions to review their execution procedures and processes and issue reports that were eventually made public. In this case, Governor Kay Ivey asked the Department of Corrections to investigate itself and issue its findings to her. So there was nothing independent, there was nothing third party, there was nothing external and there was nothing public about this review.”

From what we now know, Alabama seems to have added new medical personnel and equipment to its execution process, and they have carried out more rehearsals of the execution process. But there is reason to be skeptical about how significant those changes are.

For example, as Bruenig points out, the new equipment Alabama says it will use will consist only of “straps” that have been added to the gurney used in lethal injections.

The most significant change in the procedures in place for Barber’s execution did not come about because of the review that Ivey commissioned. It is an extension in the time that Alabama officials will have to carry out executions.

If things go wrong when they try to put Barber to death, he will not be saved from the kind of suffering Alabama inflicted on the people it tried to kill last year by the expiration of his execution warrant.

As he told an interviewer from NBC this week, “I have a fair amount of trepidation about the process that they obviously haven’t perfected—to be at their hands and be the first one after they didn’t do a true review of the protocol and made no real changes.”

In this moment, Barber is not the only one who should feel ill at ease. Looking at his case as well as the Cannon case should be enough to give all of us “a fair amount of trepidation” about what the government does when it kills in our name.

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