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Closing Argument

A Chaotic Moment For The Death Penalty

Political and legal opinions are shifting on mental illness and capital punishment, but those on death row may be left behind.

A window shows the visiting room of a prison unit, with two yellow phones hanging from the left and right wall dividers.
The Allan B. Polunsky Unit in Livingston, Texas, where men on death row are held in solitary confinement.

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On Monday, federal appellate Judge Jerry E. Smith published an opinion that would have allowed Texas to execute Jedidiah Murphy. Convicted of murder in 2001, Murphy’s execution had been paused by a lower court over questions about access to DNA testing.

There wasn’t anything especially remarkable about Smith’s opinion — it’s common for federal judges to make rulings that halt executions, or that allow them to proceed. What was extraordinary was, that the document was not the court’s true majority opinion. Smith was in the minority of a three-judge panel, and the majority had already published its decision. Rather than put his disagreements in a dissenting opinion, as it’s typically done, Smith published the opinion “that should have been issued,” as he put it.

The distinction between a dissent and a document that appears as if it was the real decision may seem minor. But as legal analyst and blogger Chris Geidner noted in a commentary: “There’s now a document out there, formatted like an opinion of the Fifth Circuit, that is undoubtedly going to be incorrectly cited” in legal cases.

Attorneys for Texas cited the Smith document several times in challenging the majority decision to the Supreme Court — although they did not, as Geidner worried, mistake the “fake” opinion for a real one. In a 6-3 decision, the Supreme Court ultimately sided with Texas and Smith. Murphy was put to death on Oct. 10 — a day that, decades ago, advocates dubbed “World Day Against the Death Penalty.”

Murphy admitted to the killing he was convicted of — the fatal shooting of an 80-year-old woman during a carjacking — but also said the shooting was an accident that occurred while he was having a dissociative blackout. As The Marshall Project alumna Keri Blakinger wrote for the Los Angeles Times this week, it’s very possible that, were Murphy to be sentenced again today, he would not have received the death penalty. Murphy experienced childhood abuse and showed clear signs of severe mental illness at the time of the murder, factors that courts and juries consider in sentencing decisions much more often today than in the early 2000s — near the height of capital punishment in the U.S.

The legal ground where mental illness meets the death penalty is uncertain territory. As Mia Armstrong-López wrote for Slate this week, the Supreme Court has ruled that it’s unconstitutional to execute someone who is “insane” and that it can be unconstitutional to execute someone with severe mental illness. But the justices have not provided clear definitions for either mental state. In those cases, the court was more interested in whether the person facing death could understand the punishment than if mental illness contributed to the crime.

In either case, Armstrong-López concluded, “If the state wants to kill someone with mental illness, it can often find a way to do so.” She cited the case of Texas death row prisoner Andre Thomas, a man so mentally ill he has gouged out both his eyes in separate incidents. In the coming months, a pair of experts will examine his competency for execution, Armstrong-López reports. Another man on the state’s death row, Scott Panetti was ruled incompetent for execution late last month, after a U.S. district judge found that he lacked the ability to connect his actions to his sentence.

Alongside mental illness and other mitigating factors, death penalty opponents are also motivated by concerns for wrongful convictions and botched executions. This week in Oklahoma, those concerns led a legislative panel to propose a moratorium on executions in the state, which is second only to Texas in the number of executions since the 1970s. The panel was largely driven by the case of Richard Glossip. Evidence of his innocence is so compelling that the state’s pro-death penalty Republican attorney general asked to throw out the conviction earlier this year.

A handful of Republicans have supported efforts to reconsider the death penalty in Oklahoma. By contrast, in Louisiana, death penalty opponents are working against the clock ahead of a probable shift in the state’s partisan landscape. Earlier this year, Democratic Gov. John Bel Edwards began a process to speed up sentencing revisions for 55 of the state's 56 death row prisoners. The effort could commute their sentences to life in prison. The state’s Republican Attorney General Jeff Landry — who is currently the frontrunner in today’s primary election to replace Edwards — successfully maneuvered to block the effort.

An October settlement between the Louisiana pardon board and a group of prosecutors appears to have ended the historic mass-clemency effort, with the pardon board agreeing to consider just five clemency applications, all of which were denied yesterday.

One of the men who received a denial is Clifford Deruise, who was convicted of fatally shooting an infant during a 1995 carjacking. The child’s mother, Danna Nachampassak, told Baton Rouge station WBRZ that's what she was hoping for. “There's not a second chance for my son. I don't see why Clifford Deruise gets a second chance,” she said.

But as my colleague Maurice Chammah noted last year, families of violent crime victims don’t always feel the same. In Jedidiah Murphy’s case, his victim’s daughter was not in favor of execution.

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Jamiles Lartey Twitter Email is a New Orleans-based staff writer for The Marshall Project. Previously, he worked as a reporter for the Guardian covering issues of criminal justice, race and policing. Jamiles was a member of the team behind the award-winning online database “The Counted,” tracking police violence in 2015 and 2016. In 2016, he was named “Michael J. Feeney Emerging Journalist of the Year” by the National Association of Black Journalists.