(L to R) Carl Collins, the first person sentenced to death in Arkansas after the 1972 Furman decision; his sentence was later vacated and he remains at ADC. Jack Jones, executed in 2017, the lead plaintiff in the successful challenge to the 2009 lethal injection law. Rickey Ray Rector, the brain damaged prisoner executed during the 1992 presidential campaign. Robert Robbins, whose case established the mandatory appeal process; his sentence was vacated and he remains at ADC. Charles Singleton, executed in 2004 after 24 years on death row; his case involved issues of being medicated into sanity. Photos courtesy of the Arkansas Department of Correction.
The death penalty in Arkansas in the 1960s, 1970s and 1980s. During the 1960s the use of the death penalty declined nationally. Arkansas executed Charles Fields for rape in 1964 but would not execute another person for over a quarter century. An informal national moratorium on the death penalty had coalesced by 1967 as various challenges wended through the courts. One of those was the case of William Maxwell, an African-American sentenced to death in Garland County for rape. It was thought that Maxwell v. Bishop3 would be the landmark national case on constitutionality of the death penalty. Indeed, the Supreme Court granted certiorari in Maxwell to decide the structural issues of the application of the death penalty: (i) Could it be imposed in a unitary proceeding and (ii) Was it proper to give the jury no standards or directions in deciding whether to impose it. However, the Supreme Court took a pass on those issues, opting for a brief per curiam decision applying in Maxwell’s favor the recently decided Witherspoon v. Illinois4 placing some limits on the excusals of capital jurors for “scruples” against the death penalty. As it turns out, Maxwell’s sentence would have been mooted anyway. In December 1970, shortly before leaving office, Governor Winthrop Rockefeller commuted the death sentences of all 15 prisoners then on Arkansas’ death row. In the next year and a half, Arkansas juries sentenced several more persons to death including one who received nationwide attention, Joe Kagebein, who was 15 years old at the time of the homicide. But in June 1972, in Furman v. Georgia,5 the Supreme Court invalidated all death sentences on the very
grounds for which it had granted certiorari in Maxwell. The 1973 General Assembly then enacted a death penalty statute creating the offense of “Capital Felony Murder,” establishing a separate penalty proceeding and setting forth aggravating and mitigating circumstances for the jury to consider. In 1976, in a set of cases decided under the title Gregg v. Georgia,6 the Supreme Court upheld that basic structure of the death penalty. The 1975 enactment of the Criminal Code renamed the offense “Capital Murder,” although the former name persisted in judicial opinions for years. In the late 1970s and throughout the 1980s Arkansas juries sentenced several dozen persons to death. However, no executions occurred in Arkansas during that time. In addition to various case-specific reasons for reversal in both state and federal court, the death sentence of Carl Collins was set aside by the Eighth Circuit for “double counting.” The principle behind Collins7 was that the aggravating circumstance of “pecuniary gain” did not perform the narrowing function required by the Furman and Gregg decisions. Collins himself was removed from death row and several other persons, including Paul Ruiz and Earl Van Denton, obtained new sentencing hearings. Eventually Collins was held superseded by the Supreme Court in Lowenfield v. Phelps,8 despite numerous attempts to distinguish the Louisiana procedure under scrutiny in that case from the Arkansas system. The Supreme Court assayed the Collins issue one last time in another Arkansas case, Lockhart v. Fretwell.9 Fretwell held that the failure to have made the Collins objection, at a time when Collins was still good law, was not ineffective assistance of counsel because
Collins was subsequently overruled. Another case from Arkansas ended up deciding—adversely to the defendant—the issue of whether a death-qualified jury, i.e. a jury with venirepersons excluded from a capital jury because they could not consider imposing the death penalty, was more likely to convict, in violation of the Sixth Amendment guarantee of an impartial jury. In Lockhart v. McCree,10 the Supreme Court overruled the Eighth Circuit and rejected the two-jury solution proposed by McCree, who incidentally had not been sentenced to death. The Issue of Waiver of Appeals One of the most noted cases of that time was that of Ronald Gene Simmons. Simmons killed 14 members of his own family around Christmas of 1987. He later proceeded to downtown Russellville where he killed two more persons and wounded three others. From almost the beginning Simmons expressed a desire to be put to death. After being sentenced to death 16 times over the two cases he sought to waive his right to appeal. A Catholic priest, Father Louis Franz of Star City, sought to appeal as Simmons’ next friend. In Franz v. State,11 the state Supreme Court held that Franz did not have standing to appeal on Simmons’ behalf and that Arkansas had no mandatory review of death sentences. The state court adhered to that position in the case of Jonas Whitmore, another death-sentenced inmate who attempted to intervene in Simmons’ case under the theory that Simmons should be required to appeal so that Whitmore’s case could be compared favorably to Simmons’ under the doctrine of comparative review. This argument—also
Vol. 52 No. 4/Fall 2017 The Arkansas Lawyer
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