By Leila Katibah
During the week of Nov.17, four men across the U.S. are scheduled to be executed, highlighting the current trends in state executions and the continued deployment of the death penalty against vulnerable communities.
The prisoners scheduled to be executed have faced numerous challenges and, according to lawyers and supporters, injustices in their encounters with the criminal legal system, including prosecutorial and police misconduct, ineffective assistance of counsel, discrimination against Black jurors, judicial override of jury decision making, debilitating mental illness and brain damage.
Stephen Barbee (Texas) and Murray Hooper (Arizona) are scheduled for execution Nov.16, and Richard Fairchild (Oklahoma) and Kenneth Smith (Alabama) Nov. 17.
The general pace for state executions in 2022 and their close proximity resembles the execution trends in the recent pre-pandemic years.
The cases of the four men facing execution later this week are examples of the abilities of the judicial system to correct constitutional errors, the execution of vulnerable men and the importance of chance and timing in deciding who gets to live and die, defense lawyers and anti-death penalty proponents charge.
Barbee, for instance, filed for a preliminary injunction that would have stayed his execution on behalf of religious freedom, but it was refused by the Fifth Circuit Court of Appeals on Nov.14.
Additionally, Barbee argues his conviction should be overturned because his original lawyers unconstitutionally conceded his guilt at trial against his wishes. Newly discovered evidence was presented by Barbee’s new lawyers to prove his conviction relied on a false forensic testimony by a coroner who was suspended from his job due to repeated errors and negligence.
Hooper was convicted and sentenced to death in a 1981 trial based on the testimony of a witness who was paid off in money and favors by the police, claim Hooper’s lawyers, who explained this police misconduct was concealed until after the trial. Once revealed, several of Hooper’s co-defendants were relieved of their charges, but Hooper remained on death row.
Hooper also argues his execution should be overturned because of discriminatory jury selection, and because his trial attorneys did not present mitigating evidence in his sentencing hearing.
Throughout his capital proceedings, Hooper has asserted his innocence, although the courts have consistently denied his challenges to inconsistent cross-racial eyewitness identification as well as DNA and fingerprint testing of items from the scene of the crime.
Fairchild’s attorneys have argued his trial counsel was incompetent because of a failure to present evidence of Fairchild’s severe childhood abuse and repeated traumatic brain injuries.
John Albert, Fairchild’s trial attorney, was eventually suspended from practicing law due to substance abuse, and two of the capital defendants he represented were granted relief due to his incompetence.
But Fairchild, despite expert statements about the debilitating state of his mental illness and brain damage, was not granted post-conviction relief nor clemency.
Smith’s case was originally overturned because the prosecutor deliberately struck Black jurors because of their race. But, in 1996, Smith was retried and resentenced to death when his trial judge overrode the jury’s near-unanimous recommendation for a life sentence.
This occurred in Alabama, which at the time was one of only three states permitting a judge to override a jury’s vote for a life sentence and instead impose the death penalty.
By 2017, Alabama legislature repealed this portion from its death penalty statute, the last state to finally ban this practice. In 2021, a federal appeals court wrote “If Smith’s trial had occurred today, he would not be eligible for execution.”
Despite the issues of prosecutorial and police misconduct, incompetent trial counsel, racial discrimination in jury selection, judicial override of jury decisions, and issues of mental illness and abuse, these four men from four separate states are scheduled to be executed this week.
This is not the first time in recent years that several executions have been scheduled in a single week – it was quite common in pre-pandemic times.
In 2020, during the week of Jan.13, seven execution dates were scheduled by three different states and the federal government. Some of these execution dates were stayed because of issues with litigation and execution protocols, and one person was instead sentenced to life without parole.
In Dec.2019, six executions were scheduled by two states within the same week, and six executions scheduled within a week in October 2017. And during Arkansas’ execution spree in April, 2017, four executions took place in the span of a week.