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“Why do we want to kill all the broken people?”
— Bryan StevensonJust Mercy: A Story of Justice and Redemption (2015)
In April 2017, the state of Arkansas set out to execute eight men in 11 days. This unseemly race to death resulted from the impending expiration of the state’s supply of execution drugs. It started a frenzy of litigation and other legal maneuvering, not only by attorneys representing these men, but also by the pharmaceutical companies who did not wish to see their products used for this purpose (and who claimed the state purchased them under false pretenses). As the clock ran out and the lethal drugs hit their expiration date, four of the eight men had been executed.
I write to talk about all eight men at the heart of this macabre drama. They represent a cross-section of death row inmates around the country. Justice Breyer, who opposes the death penalty, dissented from the denial of an emergency motion to the Supreme Court seeking to stay one of the executions. In his dissent, Justice Breyer wrote about the arbitrariness of how the death penalty is administered in this country.
Looking at these eight men, however, does not reveal arbitrariness. Instead, it reveals a disturbing, but predictable pattern. (1) Racial disparity. Of the eight men, four were black – 50 percent. Arkansas has a black population of about 15 percent. Yet Arkansas’ death row population is about 56 percent black. Nearly all, if not all, of the victims of the crimes involved were white. Yet approximately 50 percent of the homicide victims in this country are black. (2) Failure of the jury to hear mitigation evidence. Some of these men had childhoods of horrific poverty, abuse, and neglect. Some suffer from severe mental illness or impairments. For some, both are true. Yet the juries who heard their cases were not presented evidence of these mitigating factors. (3) Potential innocence. For most of these men, there is overwhelming evidence each committed the crimes for which they were sentenced to die. But this is not true for all of them. Even on the eve of their executions, many years after the crimes were committed, there are substantial questions.
Below are brief summaries of the eight men the state of Arkansas set out to execute this April and the crimes for which they were condemned to death. The crimes are horrific. The men charged were severely damaged human beings. For each of these men and their victims, the legal process has been lengthy and largely unfair.
Don William Davis went into a house in Rogers, Arkansas, 27 years ago to commit a burglary. Jane Daniels was at home that day. Davis shot her in the back of the head, execution style. Davis is white. His victim was also white. Davis admits his guilt, but today expresses remorse. “What I did was an act of cowardice; it was cold blooded; it was evil.” Davis suffers from intellectual disabilities. His trial counsel did not put on mitigation evidence of his mental disabilities. Indeed, Davis was never given a comprehensive mental health evaluation, so the full extent of his impairments may never be known.
Carol Heath was beaten, strangled, and had her throat slit in her home in DeQueen, Arkansas, 23 years ago while her two-year-old and six-year-old children were in the house. Heath was white. Stacey Eugene Johnson, who is black, was convicted of the murder. Johnson maintains his innocence and is seeking DNA testing of relevant evidence. Heath’s boyfriend, who had a history of domestic assault, was never considered a suspect. Heath’s boyfriend was white.
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Bookkeeper Mary Phillips was murdered 22 years ago during a robbery at an accounting office in Bald Knob, Arkansas. Phillips was found naked from the waist down with a cord from a nearby coffee pot tied around her neck. Phillips’ 11-year-old daughter was also assaulted, but she survived.
Jack Harold Jones, Jr. was convicted of the murder and attempted murder. Jones was white, as were the victims. Jones, who was bipolar, said he was not seeking clemency and apologized for what he did. Jones had attempted suicide and had voluntarily committed himself shortly before he murdered Philips. The jury did not hear that he was bipolar, depressed, suicidal, or that he had voluntarily entered a psychiatric hospital in an effort to get treatment. The state of Arkansas executed Jack Jones on April 24, 2017.
Debra Reese was killed 24 years ago in her Jacksonville, Arkansas, home after she was struck 36 times with a tire pressure tool her husband had given to her to use for protection. Ledell Lee, a black neighbor of Reese, who was white, was convicted of the crime. The state of Arkansas executed Ledell Lee on April 21, 2017, after newly-minted Supreme Court Justice Neil Gorsuch broke a tie by siding with the four of his new colleagues who voted against a stay. Lee’s trial counsel was intoxicated and the trial judge was having an affair with the prosecutor. Lee maintained he was innocent of the murder of Debra Reese and had unsuccessfully sought DNA testing of relevant evidence.
Twenty-one years ago, Johnny Melbourne Jr., a 15-year-old white teenager, was beaten and tortured at a house in Harrison, Arkansas, by several people. He was then taken by his attackers to a farmhouse in Omaha, Arkansas, where he was beaten further and killed. Jason Ferrell McGehee, whom his co-defendants said was the ringleader and did most of the beating, was convicted. McGehee is bipolar. He had a difficult and violent childhood. Neuropsychological testing shows he may have brain damage, with impairments in his frontal lobe. His mother drank alcohol during her pregnancy. McGehee started inhaling gasoline when he was only three years old and became an alcoholic by the sixth grade. During his childhood, he was forced to watch as his father, a Vietnam War veteran with post-traumatic stress disorder who became an alcoholic, killed two of his pets. He also watched his stepfather beat another pet, which died from its injuries. His mother would force him to sleep outside for days, denying him access to a bathroom or food. The Arkansas Parole Board recommended that Arkansas Gov. Asa Hutchinson grant clemency. McGehee is white.
Rebecca Lynn Doss was 18 when her dead body was found in the men’s room of the gas station and convenience store where she worked in Little Rock, 28 years ago. Doss was white. Bruce Ward, who is also white, was seen leaving the men’s room shortly before her body was found. He was convicted of sexually assaulting Doss and murdering her. Ward has been diagnosed as a paranoid schizophrenic. Ward says that Satan is after him and he has regularly had to wrestle demons. At one point, Ward believed a dog had entered his body and had lived inside him for many years. According to a psychiatrist who has examined him, Ward believes his conviction of Doss’ murder is “the product of a conspiracy to harass him so he will accept a life sentence so demonic sources can continue to feed on his soul. He does not believe God will allow the execution to occur.”
Stacy Errickson was a young mother 23 years ago when she was abducted after stopping for gas in Jacksonville, Arkansas. She was taken to various ATMs and forced to make withdrawals totaling $350. Her beaten and bound body was found in a park two weeks later. Errickson, who was white, had been raped and then suffocated. Marcel Wayne Williams later confessed. Williams was black. He was convicted after about 30 minutes of deliberations. After a federal habeas hearing, the district court judge vacated his sentence, summarizing the mitigation evidence never heard by the jury: “Marcel Wayne Williams was subject to every category of traumatic experience that is generally used to describe childhood trauma. He was sexually abused by multiple perpetrators. He was physically abused by his mother and stepfather, who were his primary care[givers]. He was psychologically abused by both of his primary care[givers]. He was subjected to gross neglect in all categories of neglect: medical, nutritional, educational. He was a witness to violence in the home and in his neighborhood throughout his childhood. As an adolescent, he was violently gang-raped in prison.” The Eighth Circuit reversed, holding that, for procedural reasons, Williams was not entitled to an evidentiary hearing on habeas. The state of Arkansas executed Marcel Williams on April 24, 2017.
Kenneth Dewayne Williams, who was black, escaped from prison 18 years ago. He had just started serving a life sentence for the 1998 murder of Dominique “Nikki” Hurd, a white 19-year-old University of Arkansas at Pine Bluff cheerleader. One Sunday morning Williams made his way into the prison kitchen and stowed away in a vat of garbage that was about to be hauled away to be used as pig slop. The vat was carried out without anyone knowing Williams was in it and placed in a Department of Corrections garbage truck. Once the truck was away from the prison, Williams jumped out into a ditch in the town of Grady, Arkansas. After his escape, he shot and killed Cecil Boren, a white man standing in his yard, and took his jewelry. After killing Boren, Williams drove to Missouri, where he was spotted the next day by police. During a high-speed chase, Williams rammed into a water delivery truck. The driver, 24-year-old Michael Greenwood, was killed. Williams was captured, tried, and sentenced to death. He later confessed that the same day he had killed Hurd, he had also killed another man, making him responsible for a total of four deaths. Williams had a full scale IQ of 70. The state of Arkansas executed him on April 27, 2017.
Each of these stories is heart-wrenching. People were brutally murdered. They left behind family members and friends who will forever feel an inescapable void in their lives. These murders resulted in eight men on death row. The death sentences were imposed in cases where the victims were disproportionately white, and the men convicted disproportionately black. Four of the men, three of them black, have been executed. Another of the men, who is white, received a recommendation for commutation. The other three men remain in the queue to be executed, but without the state presently having a means to carry out their sentence. All eight of the men who were convicted and sentenced to die appeared to be mentally ill or mentally impaired, came from horrific childhoods, or both. Yet the juries who condemned them to death did so knowing little of this. Moreover, it is not even clear that all of these men committed the crimes for which they were sentenced to be executed.
I believe Justice Breyer is correct in opposing the death penalty. But for me, it is not the arbitrariness of the death penalty that is most troubling. It is the depressing predictability of it all.
Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.