Attorneys representing death row prisoner Lamondre Tucker will file a petition for certiorari with the United States Supreme Court challenging his death sentence and the constitutionality of capital punishment. Justice Stephen Breyer, joined by Justice Ginsberg called for reconsideration of the constitutionality of the death penalty in America in his dissent in Glossip v. Gross. Justice Breyer noted the inherent unfairness of the death penalty “underscores the need to reconsider the validity of capital punishment under the Eighth Amendment again.” Even Justice Scalia has recently said he “wouldn’t be surprised” if the U.S. Supreme Court found the death penalty unconstitutional.
The Growing National Consensus Against the Death Penalty
Standards of decency have evolved across the country, and there is now a broad consensus moving away from the death penalty, recognizing that a life sentence without parole is a harsh and sufficiently severe sentence. Thirty-three jurisdictions have either in law or practice abandoned this increasingly archaic punishment. In the past two decades, new death sentences have dropped from 315 per year to just 49 in 2015. See Death Penalty Information Center, Death Penalty in 2015: Year End Report.
The question of when and how capital punishment will end has reached national prominence. President Obama recently called the death penalty “deeply troubling,” and the issue has been discussed by Matt Ford (The Death Penalty’s Last Stand, The Atlantic, April 2015), and in the New York Times (The Death Penalty Endgame, 1/16/2016) among others.
Tucker’s Case Demonstrates Why the Death Penalty is Unconstitutional
The death penalty in America is broken. Lamondre Tucker’s case is emblematic of how broken it is. Lamondre Tucker was four months past his 18th birthday, with a 74 IQ, when arrested and charged with the murder of Tavia Sills. Lamondre was the last person sentenced to death under the Confederate Flag that flew outside the Courthouse on a Monument to the Confederacy’s Last Stand in Caddo Parish. His prosecutor was Dale Cox, who until recently, was the most aggressive death penalty prosecutor in the state. (James Gill, Capital Punishment a Caddo Parish Cottage Industry in Louisiana, Caddo largely owes its pre-eminence to just two prosecutors, Dale Cox and Hugo Holland.).
In Caddo Parish, over the past decade, seven African-American men and one white woman (convicted with an African-American boyfriend co-defendant) have been put on death row. Two of the seven were eighteen years old, and four have an IQ under 75.
As Justice Breyer noted in his Glossip dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.” Justice Ginsberg observed in an interview at Duke Law School, ” [L]ast year, I think 43 of the states of the United States had no executions, only seven did, and the executions that took place tended to be concentrated in certain counties in certain states. So the idea that luck of the draw, if you happened to commit a crime in one county in Louisiana, the chances that you would get the death penalty are very high. On the other hand, if you commit the same deed in Minnesota, the chances that you would get the death penalty are almost nil. So that was another one of the considerations that had become clear as the years went on.”
The Risk of Wrongful Conviction Remains Too High
Cecelia Kappel, who argued Tucker’s direct appeal to the Louisiana Supreme Court, and represents him on the petition, said “Lamondre’s conviction has all of the hallmarks of a case where the justice system got it wrong in the first instance: overzealous prosecutors; overwhelmeddefense lawyers; and a mentally impaired teenager interrogated over a number of days. If we have trouble determining the guilty from the innocent, how can we trust our system to figure out who should live and who should die?” The Death Penalty Information Center reports that one hundred and fifty-six (156) individuals have been exonerated from death row, ten from Louisiana. A recent study by the National Academy of Sciences projected that one out of every twenty-five death sentences involved the conviction of an innocent person.
The Death Penalty Is Not Reserved for the Worst of the Worst
The U.S. Supreme Court decided in 2005 to bar the execution of juvenile offenders under the age of 18 (Roper v. Simmons), and in 2002 to bar the execution of persons with intellectual disability (Atkins v. Virginia). In each instance, the Court explained that the evolving standards of decency that mark a civilized country warranted the limitation on capital punishment.
Tucker’s case speaks to broader problem. He was eighteen years old when charged with murder, with 74 IQ. The Louisiana Supreme Court rejected the claim that these impairments, when taken together, make him morally indistinguishable from those individuals the Court has already deemed ineligible for execution. The petition points out that Louisiana has a significant problem in identifying the most culpable of offenders. Even nationally, of the 28 people executed in 2015, 68% suffered from crippling mental frailties or experienced extreme childhood trauma and abuse according to a report released by Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice. Like Lamondre, a significant number of the executed individuals had multiple impairments. Tucker’s case is an example of how juries — sometimes for systemic reasons like overzealous prosecutors or overworked defense lawyers, and in other instances because of the facts of a crime or the appearance of the defendant — are unable to distinguish between the impaired and the culpable.
“We do not always recognize justice in our own time, but now is the moment – and this is an appropriate case — for the Court to consider whether the standards of decency have evolved since 1976” said Ben Cohen, counsel of record for Tucker. “How we decide who should live and who should die, no longer comports with our ideals of human dignity.” Cohen referred to the opinion in Kennedy v. Louisiana (2008), in which he was counsel, where the Court observed “The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application. In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”