Death penalty opponent Joyce Engle holds a sign as she sits on the stairs of St. Francis Xavier College Church during a vigil hours before the scheduled execution of Missouri death row inmate Russell Bucklew on Tuesday, May 20, 2014, in St. Louis.
Jeff Roberson / AP
Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.
As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.
When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.
In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.
The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind. It has a $1 million budget and six full-time staff members this year. It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News. The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.
As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.
Hill first started defending prisoners on death row back in the 1990s. Smith left his job as a tenure-track professor at the University of North Carolina Chapel Hill School of Law to join the project.
The first goal of the 8th Amendment Project is to solidify the foundation for a Supreme Court challenge to the constitutionality of the death penalty. It will do so, Hill explained, by focusing on providing evidence relating to three main areas: The death penalty is being imposed and implemented less and less often; the few counties that do so highlight fundamental problems with system itself; and the people who end up on death row are not “the worst of the worst” but are, instead, “the weakest of the weak.”
The 8th Amendment Project’s “ultimate mission,” though, is to support lawyers who actually bring cases to the Supreme Court that are aimed at ending the death penalty. This second goal, moreover, is already underway. The project is providing support in potential cases out of Louisiana and Texas, BuzzFeed News has learned.
"The criminal court system happens in the dark, and most people are just not aware of it."
As Hill put it, “That's who we are: We illuminate what the death penalty looks like when you look at the system up close, and we provide support to our partners and friends who seek to end the death penalty through a victory at the Supreme Court.”
Hill and Smith come at the issue from different worlds — and with subtly different aims — but their visions come together at the singular goal of getting a Supreme Court decision, within the next few years, that ends the death penalty.
“I think there’s a lot of optimism and confidence that the court’s close to declaring the death penalty unconstitutional,” Hill said. “And, I think that excitement helps to generate support for a [project] to coordinate efforts and to support efforts that are strategic and might help things along.”
Hill doesn’t take credit for getting the movement where it is — or even for what is happening now.
“It’s a diverse community, of dozens and dozens of organizations, that have been around and in the fight for 30 years that the attention is appropriately focused on,” he said. “I’m not representing a single client — and that’s the first time I’ve been able to say that in 35 years,” adding that he credits today's focus on race and the criminal justice system to the lawyers on the ground, people working in state legislatures, and researchers who have been doing the work.
Talking at length, though, with Hill and Smith provides a good picture of an aggressive arm of the abolition movement that sees the potential to end to the death penalty in America in the near future. After toiling for decades, this group believes, the effort is reaching its moment of truth.
As David Menschel, a prominent funder of and lawyer within the movement, said, “It’s time for the movement to be thinking about how it might bring a case to the Supreme Court — to hear what Breyer was saying.”
This is the story of how the death penalty abolition movement got here, and how — from Hill and Smith’s vantage point — they plan to win.
Henderson Hill in court in a capital case in 2008 in Atlanta.
John Spink / AP Photo
THE PAST: “I was 15, 16 years old, I was thrown to the ground spread-eagle by a cop in a criminal investigation. I’m in a suit and tie,” said Hill, in a light sweater and jacket, over dinner in September. “If it wasn’t for some white lady that came out and said, ‘This kid had nothing to do with anything,’ I’d have a mugshot.”
It was a series of decisions — before law school, after law school, all the way back to that day when he was a teenager, thrown on the ground — that transformed Hill into one of the leading advocates fighting against the death penalty.
He became a public defender in Washington, D.C., after graduating from Harvard Law School in 1981 — taking the path of defending clients who couldn't afford a lawyer because, as he said, he had seen the “the abuse of the criminal justice system, how it’s visited on folks of color.” But he didn’t take on the crusader role he’s since assumed. Hill was just another young lawyer working in D.C. “I was not one of those public defenders who went down South to take on a habeas while I was working on my caseload. That was not me. I wrote checks, small checks.”
About 10 years into his career, though, something changed. He had watched friends, like prominent NAACP Capital Litigation Project lawyer George Kendall, wage a battle against the death penalty. In 1976, the Supreme Court had restored capital punishment in the United States in Gregg v. Georgia, following legislative changes implemented after the court ruled in 1972 that the death penalty was unconstitutional.
“I thought I was as good a trial lawyer as there was — and if it was a shortage of qualified trial lawyers that were adding to our death row, that was something I was in a position to do,” Hill said. “And the need that I saw was the need that I’d been avoiding for 10 years.”
He moved to North Carolina in 1990 when he was named director of the North Carolina Resource Center, a project funded by the federal government to help improve the quality of representation for inmates on death row. In 1995, the center became its own nonprofit, the Center for Death Penalty Litigation. After working in the state for nearly a decade, two things changed. First, two of Hill’s clients were executed in 1999. “These were men that I’d worked with since I came to the state,” he said. “They had become friends of mine.”
Second, in 1999, death penalty policy conferences were organized, in part, to get Illinois Gov. George Ryan to place a moratorium on more executions. The effort, ultimately successful, came in the wake of the exonerations of prisoners in the state who had been on death row and evidence of wrongdoing by government officials. “[L]ooking at a justice system that was just corrupt in its use of investigative procedures, its use of police procedures, I think it had an impact of shocking the conscience and taking away the confidence,” Hill said.
It was then that Hill decided to change his focus. “This is a bizarre system. Litigation isn’t and wasn’t going to answer all of these questions,” he said. “There was a political fight that had to be engaged.”
Rob Smith
Courtesy of Rob Smith
Hill’s colleague at the 8th Amendment Project also went to Harvard Law School — but chose the path of a professor, not a trial lawyer. Smith, who admits he cares about the questions involved in an “almost naive” way at points, has a more philosophical approach.
“The government is supposed to be restrained,” he said. “If punishing serves some purpose … then we need to do that, but I think the government has this obligation to everybody to do so with a minimum level of dignity.”
And that dignity, he believes, hasn’t been upheld in the current environment. Over the past two years, botched executions in 2014, increased scrutiny on the actions of prosecutors that people like Smith characterize as being out of control, ongoing questions about the role of race in jury selection, and the larger focus on the criminal justice system all come together to make this a key moment.
“People are starting to pay attention — courts and legislatures and executives and just everyday people — and saying, ‘What are we doing? It’s too harsh, it’s not serving a purpose, and it’s counterproductive?’” he said. “The people on the receiving end of that excessiveness don’t have a lot of options to go and fix those problems for themselves.”
Hill has been working to fix those problems for decades, and yet voices the sense of helplessness that he felt as a witness to the execution of David Junior Brown, who became known as Dawud Abdullah Muhammed, in 1999.
“The notion that I’m sitting with their families, and every last appeal has failed, and there’s nothing that you can do, and all you can do is sit in this chamber next to the people whose Brady violations and misconduct led to handcuffing the court’s opportunity to sort out facts of both guilt and the appropriateness of punishment,” he said, referring to claims that government officials withheld evidence that harmed his client’s case at trial and sentencing. “They’re sitting in the front row, and I’m sitting holding his daughter’s hand?”
Supreme Court Associate Justice Stephen Breyer
Manuel Balce Ceneta / AP Photo
THE DISSENT: Four hours away from North Carolina’s execution chamber, the nine justices of the U.S. Supreme Court hear last-minute requests to halt executions on a near-weekly basis. Earlier this year, though, the Supreme Court took up one of those cases, bringing the court’s deep dive on the issue out into the open — and creating an enormous opening for the 8th Amendment Project.
The court announced in January 2015 that it would be hearing a case brought by death row inmates in Oklahoma, challenging the state’s use of the sedative midazolam in its execution protocol. The drug had been used in the state’s botched execution of Clayton Lockett in early 2014, who sat up in the gurney and called out — after having been declared unconscious, leading the state’s director of corrections to call off the execution. Lockett died of a heart attack. Midazolam was used in two other problematic executions in 2014, one in Ohio and the other in Arizona.
The Supreme Court case turned on the specifics of the drug and whether its use created an “unacceptable risk of severe pain.” Additionally, in challenging the use of midazolam, there was an unresolved question about whether inmates needed to provide an alternative method of execution that was less likely to create such an unacceptable risk.
At the oral arguments in the case in April, and even more so when the Supreme Court’s decision came down in June, it was clear that the court is increasingly split on both the implementation of the death penalty in America and the broader question of the constitutionality of capital punishment.
During the arguments, Justices Sonia Sotomayor and Elena Kagan aggressively questioned Oklahoma’s lawyer, but it was Justice Samuel Alito who made headlines by accusing death penalty opponents of waging a “guerrilla” war that left states unable to obtain previously used execution drugs and forced into trying new drugs like midazolam in executions.
Alito’s comments stirred up advocates like Hill, who said that while capital punishment opponents certainly are trying to figure out as many ways as possible of countering the death penalty, “[i]t just seemed way underneath the dignity of the court” to suggest that lawyers’ arguments “are not reflective of their clients’ needs or legitimate constitutional rights and are instead shills for some ‘guerrilla movement,’ some nefarious movement out there.”
Bottles of the sedative midazolam at a hospital pharmacy in Oklahoma City.
Uncredited / AP Photo
Nonetheless, the Supreme Court upheld Oklahoma’s use of midazolam in June, making clear that, yes, inmates challenging a method of execution must provide an alternative means. The result in Glossip v. Gross was not a big surprise, but what was completely unexpected was the dissenting opinion written by Justice Stephen Breyer, an opinion joined by Justice Ruth Bader Ginsburg.
“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Breyer wrote.
“In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems,” he continued. “Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”
Breyer spent the next 39 pages laying out that case, concluding that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’”
Advocates had not been expecting the move. Dale Baich, one of the federal public defenders who worked on the Glossip Supreme Court case, said that the dissent was surprising, in part, “because our approach to the case was to keep it very narrow. ‘This is just about midazolam.’” Yet, with Breyer’s dissent, that became the story — with even conservative Justice Antonin Scalia saying several times since June that he “wouldn’t be surprised” if the court ended up striking down capital punishment.
Death penalty opponents have seized the possibility of the moment. Capital punishment in the U.S. is “an increasingly well-documented disaster,” argues Cassandra Stubbs, the director of the American Civil Liberties Union Capital Punishment Project. And now, Breyer was on their side.
“That was about as comprehensive and deliberate a consideration of the problems that have plagued this punishment for 40 years since the reenactment,” Hill said.
Breyer’s dissent, Hill said, is nothing less than “a road map” for getting the court to end the death penalty. “It’s not like we’ve got to struggle and identify what would be sufficiently problematic to this court that it should lose confidence,” he said.
Those supporting the 8th Amendment Project say Breyer’s dissent also sent another key message, one about the possibility of getting Justice Kennedy’s vote in a challenge to the constitutionality of the death penalty itself. As a leading criminal defense lawyer, Ben Cohen with the Justice Center in Louisiana, put it: “Breyer wouldn’t have written that if he didn’t think there was a chance."
The scene outside of the Supreme Court on Monday, June 29, 2015.
Jacquelyn Martin / AP
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