American Bar Association Issues White Paper Supporting Death Penalty Exemption for Severe Mental Illness
At a December 6-7 national summit on severe mental illness and the death penalty, the American Bar Association Death Penalty Due Process Review Project released a new white paper that it hopes will provide law makers with information and policy analysis to "help states pass laws that will establish clear standards and processes to prevent the execution of those with severe mental illness." The ABA does not take a position on the death penalty itself, but believes that "[i]ndividuals with severe mental disorders or disabilities ... should not be subject to capital punishment." The white paper describes the range of problems faced by seriously mentally ill defendants in capital cases and sets forth possible legislative approaches for exempting them from capital sanctions. The white paper, and ABA President-elect Hilarie Bass in her address to the summit, likened the diminished moral culpability of the severely mentally ill to that of two other "vulnerable groups"—juvenile offenders and defendants with intellectual disabilities—whom the court has exempted from the death penalty. The application of the death penalty to these defendants, she said, "has been deemed unconstitutional because our society considers both groups less morally culpable than the 'worst of the worst' murderers for whom the death penalty is intended. They are less able to appreciate the consequences of their actions, less able to participate fully in their own defense and more likely to be wrongfully convicted. These exact characteristics apply to individuals with severe mental illness." Citing national polls in 2014 and 2015, Bass said the American public "support[s] a severe mental illness exemption from the death penalty by a 2 to 1 majority." At least 8 state legislatures are expected to consider serious mental illness exemptions in 2017. Among those states is Virginia, where just this year, a jury disregarded prosecution and defense experts in the death penalty trial of Russell Brown and found him guilty despite testimony that he was insane and did not understand the nature or consequences of his actions. The jury ultimately sentenced Brown to life in prison, but, as University of Virginia Law Professor Brandon Garrett explained, "there was no statutory protection available against the highest punishment for a man who, by the admission of all experts, did not have the highest culpability." As does the ABA, Professor Garrett argues that a serious mental illness exemption is a safeguard that is necessary to reduce unfairness in the administration of capital punishment. "If lawmakers believe that we should retain the death penalty in Virginia," he wrote, "we must be confident that we are not sentencing to death severely mentally ill people who cannot be fully blamed for their actions."
("Severe Mental Illness and the Death Penalty," American Bar Association Death Penalty Due Process Review Project, December 2016; H. Bass, "Remarks of Hilarie Bass President-elect of the American Bar Association Summit on Severe Mental Illness and the Death Penalty," American Bar Association, December 6, 2016; B. Garrett, "Severe mental illness and Virginia's death penalty," Richmond Times-Dispatch, December 3, 2016.) See Mental Illness.Tweet
Alabama is set to execute Ronald Smith on December 8, although the sentencing jury in his case recommended that he be sentenced to life. Under a practice that is no longer permitted in any other state, Smith's judge overrode the jury's sentencing recommendation and imposed a death sentence. As his execution approaches, Smith has filed a petition in the U.S. Supreme challenging the constitutionality of Alabama's law. He argues it violates both his right to have a jury determination of all facts that are a prerequisite to imposing the death penalty, and a national consensus against judicial disregard of jury capital sentencing verdicts. Smith's petition notes that "Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life." His lawyers also have petitioned Governor Robert Bentley for clemency, quoting a juror who said, "It was very painful to make such a difficult decision, only to have the judge disregard it." A recent report by the Brennan Center on Justice found that "electoral pressures influence judges' decisions in capital cases," including Alabama's practice of judicial override, which accounts for one-fifth of Alabama's death row. Earlier this year, state courts in Florida and Delaware--the only other states that had permitted judicial override--struck down sentencing statutes that permitted judges to impose death sentences in the face of jury recommendations for life or non-unanimous recommendations for death. These decisions grew out of the U.S. Supreme Court's January 2016 ruling in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Smith's attorneys argue that Alabama's judicial override practice violates Hurst. Alabama's attorney general disagrees, arguing that the Alabama statute is different from Florida's because it requires the jury to find the existence of an aggravating factor making the defendant eligible for death. Smith's lawyers also argue that "[t]his life-and-death decision is being made by judges facing intense electoral pressure," rendering such overrides unconstitutionally arbitrary. Smith was never able to obtain review of these issues in federal court because his attorney made an error in paying a filing fee. Though his claims were filed by the deadline, his lawyer, who was on probation for public intoxication at the time, assumed he did not have to pay a filing fee of $154 because his client was indigent. In addition to his judicial override challenge, Smith is also part of a group of death row inmates challenging Alabama's new lethal injection protocol, which would use midazolam, a drug involved in several botched executions over the last few years.
("Alabama Death Row inmate Ronald Bert Smith asks US Supreme Court to stop execution," Associated Press, December 2, 2016; A. Liptak, "Lawyers Stumble, and Clients Take Fall," The New York Times, January 7, 2013; K. Faulk, "Alabama death row inmate seeks clemency from governor," AL.com, December 1, 2016.) See Sentencing and Arbitrariness. Read Ronald Smith's clemency petition.Tweet
UPDATE: The Georgia Board of Pardons and Paroles denied Sallie's request for clemency. PREVIOUSLY: Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”
(A. Cohen, "The Night the Lights Went Out in Georgia," Brennan Center for Justice, December 2, 2016; R. Cook, "Death row inmate’s lawyers to Parole Board: Juror was biased," Atlanta Journal-Constitution, December 3, 2016; N. Fletcher, "Georgia’s Dangerous Rush to Execution," The New York Times, December 5, 2016.) See Arbitrariness and Representation.Tweet
With 55 executions since the 1970s, Dallas County, Texas, ranks second among all U.S. counties -- behind only Harris County (Houston), Texas -- in the number of prisoners it has put to death. It is also among the 2% of counties that account for more than half of all prisoners on death row across the country, and produced seven new death sentences and one resentence between 2010 and 2015, more than 99.5% of all U.S. counties during that period. Dallas County has a long history of prosecutorial misconduct and racial discrimination, evidenced most tellingly in its biased jury selection practices. Long-time Dallas District Attorney Henry Wade, whose tenure in office spanned the years 1951 to 1987, once told an assistant prosecutor, “If you ever put another n****r on a jury, you’re fired.” An office manual first written in 1963 instructed Dallas County prosecutors not to “take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.” In 2005, the U.S. Supreme Court took notice of what Justice Anthony Kennedy described as a "culture of discrimination" that was “suffused with bias against African-Americans," and overturned the capital murder conviction of Thomas Joe Miller-El because prosecutors removed 10 of the 11 Black potential jurors on the basis of race. 51 people have been exonerated of serious crimes in Dallas County since 1989, including Randall Dale Adams, who had been sentenced to death after witnesses for the prosecution committed perjury at his trial. Dallas has shown signs of change in recent years. No new death sentences have been imposed since 2013. That year, District Attorney Craig Watkins said he would advocate for the Texas legislature to pass a Racial Justice Act, permitting death row prisoners to challenge their sentences based upon statistical evidence of racial discrimination. Former Assistant District Attorney James Fry said in 2009 that concerns about innocence had changed his views on the death penalty: "For years I supported capital punishment, but I have come to believe that our criminal justice system is incapable of adequately distinguishing between the innocent and guilty. It is reprehensible and immoral to gamble with life and death."Tweet
Missouri is Disproportionately Producing Federal Death Sentences Amidst Pattern of Inadequate Representation
Federal capital defendants are disproportionately sentenced to death in Missouri compared to other states, with 14.5% of the 62 prisoners currently on federal death row having been prosecuted in Missouri's federal district courts. By contrast, a DPIC analysis of FBI Uniform Crime Reporting Statistics shows that Missouri accounted for only 2.26% of murders in the United States between 1988, when the current federal death penalty statute was adopted, and 2012. Not surprisingly, an article in The Guardian by David Rose reports that, since the 1990s, the chances that a defendant will be sentenced to death in a Missouri federal court are significantly greater than in other federal jurisdictions. Rose suggests that the questionable performance of defense counsel and repeated failures to investigate and present mitigating evidence relating to the backgrounds and life histories of Missouri federal capital defendants has significantly contributed to that disparity. Though federal funding for defense attorneys is more generous than state funding, Rose says the federal death penalty system shows evidence of the same failures in representation that so often appear in state death penalty cases. Four of the nine prisoners sentenced to death in Missouri were represented by the same lawyer, Frederick Duchardt. In the three cases of Duchardt's clients that have reached the appeals stage, all three raised claims of ineffective assistance of counsel. In each case, Duchardt failed to employ a mitigation specialist, in violation of American Bar Association guidelines. Mitigation specialists investigate a client's background to find evidence that may convince a jury to impose a sentence less than death. Duchardt's clients all suffered serious abuse during their childhoods. One had an IQ of 68, placing him on the threshold of intellectual disability. Another had been diagnosed with psychosis, bipolar disorder, and post-traumatic stress disorder. None of these issues were presented to the jury, a decision Duchardt later claimed was "strategic," but which his client's appeal attorneys argue was a result of failure to prepare or investigate. Professor Sean O'Brien of the University of Missouri Law School, described the appointment of counsel for indigent defendants as a "lottery," saying, "Many defendants lose that lottery, and they get a lawyer more worried more about pleasing the court and the prosecutor than about fighting for the client. Those are the ones who die. When one lawyer produces nearly half the federal death sentences in a state, there’s a problem."
(D. Rose, "Death row: the laywer who keeps losing," The Guardian, November 24, 2016; Death Penalty Information Center, "Murders in Missouri As a Percentage of All Murders in the United States, 1988-2012," December 1, 2016.) See Representation and Federal Death Penalty.
During argument November 29 in the case of Moore v. Texas, the U.S. Supreme Court expressed skepticism about Texas' idiosyncratic method of deciding whether a capital defendant has Intellectual Disability and is therefore ineligible for the death penalty. A trial court, applying the criteria for Intellectual Disability established by the medical community, found that Bobby James Moore (pictured) was not subject to the death penalty. However, the Texas Court of Criminal Appeal reversed that ruling in 2015, saying that Moore did not qualify as intellectually disabled under Texas' “Briseño factors” (named after the Texas court decision that announced them), an unscientific seven-pronged test based in part on the character Lennie Smalls from John Steinbeck's "Of Mice and Men." Moore's attorney, Clifford Sloan, argued that "Texas is very extreme and stands alone" in rejecting clinical standards used by the medical community to determine Intellectual Disability and replacing them with “nonclinical” and “anti-scientific” criteria. Five justices seemed sympathetic to Moore's case, raising concerns about the arbitrariness of allowing states to set their own criteria for deciding who is intellectually disabled. Justice Ruth Bader Ginsburg said, "You're opening the door to inconsistent results ... something that we try to prevent from happening in capital cases." Justice Stephen Breyer said that, without nationwide uniformity, there will be "disparities and uncertainties" and "people who are alike treated differently." Justices Elena Kagan and Sonya Sotomayor questioned whether application of the Briseño factors excluded some individuals whom clinicians would regard as being intellectually disabled. Justice Anthony Kennedy asked Texas Solicitor General Scott Keller whether the purpose of Texas' system was to "really limit" the definition of intellectual disability. When Keller said that was not the intent, Kennedy asked, "But isn't that the effect?" The Court is expected to rule on the case by June 2017.
(A. Howe, "Argument analysis: Texas inmate seems likely to prevail in death-row disability challenge," SCOTUSBlog, November 29, 2016; C. Geidner, "Supreme Court Skeptical Of Texas Standards For Intellectual Disability In Death Cases," BuzzFeed News, November 29, 2016; A. de Vogue, "Supreme Court takes up question of death penalty and intellectual disability," CNN, November 29, 2016; L. Hurley, "U.S. justices sympathetic to death row inmate on intellectual disability," Reuters, November 29, 2016; R. Wolf, "Supreme Court skeptical of Texas on death penalty," USA Today, November 29, 2016.) Listen to DPIC's podcast on Moore v. Texas, featuring Cornell Law Professor John Blume. See Intellectual Disability and U.S. Supreme Court.Tweet
On November 23, the Florida Supreme Court overturned the death sentence imposed by a judge on Richard Franklin after his jury split 9-3 in recommending he receive the death penalty for a 2012 murder. "In light of the non-unanimous jury recommendation to impose a death sentence," the court found that the death sentence violated Franklin's right to have a unanimous jury determination of all facts necessary to impose a death penalty and that the violation could not be excused as harmless. The court ordered that Franklin be given a new sentencing hearing. Although the court did not rule on any case other than Franklin's, the decision suggests that the court will order new sentencing hearings in at least several dozen cases involving prisoners whose non-unanimous death sentence were still pending on direct appeal at the time of the U.S. Supreme Court's ruling in Hurst v. Florida in January 2016. In Hurst, the U.S. Supreme Court struck down Florida's death sentencing scheme because key sentencing facts were determined by a judge, rather than a jury. In October, the Florida Supreme Court interpreted that decision as requiring that the jury unanimously recommend the death penalty before the trial judge could impose capital punishment. The Florida Supreme Court's description of Franklin's claim as a "Ring-Hurst claim" further suggests that the court may order new sentencing hearings for approximately 170 death row prisoners whose sentences became final since Ring v. Arizona, a 2002 U.S. Supreme Court decision requiring that a jury, rather than a judge, determine the existence of aggravating facts making a defendant eligible for the death penalty. The court has yet to rule on whether it will apply the constitutional protections recognized in Hurst to all death row prisoners, irrespective of their sentencing date, which could require resentencing of up to 290 people. Earlier, the court upheld judge-imposed death sentences when the defendant waived his right to a jury or the sentence followed a unanimous jury recommendation for death. According to retired Florida Supreme Court Chief Justice Harry Lee Anstead, "Tragically, in the 13 years since Ring, some 47 persons have been executed in Florida under an unconstitutional statute. Had the U.S. Supreme Court accepted review of a Florida case soon after Ring, those executions may arguably not have occurred – at least not until further review for harmless error, waiver or some other possible argument by the state was first evaluated."
(C. Geidner, "Florida Supreme Court Signals Possible Upheaval For State’s Death Row," BuzzFeed News, November 23, 2016; M. Payne, "Court ruling could get Lords of Chaos leader off death row," News-Press, November 28, 2016; L. Morel, "Florida Supreme Court upholds death row inmate's sentences in 2007 Polk County murders," Tampa Bay Times, November 10, 2016; H. Anstead, "47 people executed under flawed Florida statute," Tallahassee Democrat, November 22, 2016.) Read the Florida Supreme Court's decision in Franklin v. Florida. See Sentencing and Arbitrariness.Tweet
U.S. District Court Judge Richard M. Gergel granted a request on November 28 from Dylann Roof (pictured), the 22-year-old charged with the murders of nine members of the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, to represent himself in his federal capital trial. Judge Gergel described Roof's decision as “strategically unwise,” but said, “It is a decision you have the right to make.” A criminal defendant's right to self-representation was established by the Supreme Court in 1975 in Farretta v. California, a non-capital case where the Court held that a defendant may waive his right to counsel provided such waiver is knowing, voluntarily, and intelligent. In Roof's trial, the judge had temporarily halted jury selection in the trial on November 7, when Roof's attorneys requested a determination of Roof's mental competency to stand trial. After a two-day hearing, which was closed to the public because statements Roof made to a psychologist might taint the trial, Judge Gergel found Roof fit to stand trial. Jury selection is set to begin on November 28th, with 516 potential jurors reporting to the courthouse for questioning. After Roof's federal trial, the state of South Carolina also plans to try him. He faces a death sentence in both trials. While the Supreme Court has not addressed whether a capital defendant may waive his right to counsel, death penalty experts have argued that such defendants should not be allowed to represent themselves, because of the complexity of capital cases and the finality of the sentence. Cornell Law Professor John Blume wrote, "when it comes to a criminal defendant facing society's ultimate punishment, the defendant's more symbolic interests in dignity and autonomy are outweighed by the criminal justice system's interests, as well as society as a whole's interests, in accuracy and fairness." Last year, a Kansas judge permitted White Supremacist Frazier Glenn Cross to represent himself in a case in which he was charged with murders at a Kansas City Jewish Community Center. His lawyers had intended to present a mental health defense to the murders. After a controversial trial punctuated by outbursts by the defendant, the jury sentenced Cross to death.
(M. Kinnard, "JUDGE: CHURCH SHOOTING SUSPECT CAN ACT AS HIS OWN ATTORNEY," Associated Press, November 28, 2016; D. Victor, "Dylann Roof to Represent Himself at Trial in Charleston Church Shootings," The New York Times, November 28, 2016; J. Blume and M. Clark, "Unwell: Indiana v. Edwards and the Plight of Mentally Ill Pro Se Defendants," Cornell Journal of Law and Public Policy, Vol. 21:151, 2011; M. Meckstroth, "The Case Against Self-Representation in Capital Proceedings," Minnesota Law Review, 99:1935, 2015.) See Representation.Tweet
NEW VOICES: Special Olympics Chair Urges Supreme Court to Strike Down Texas' 'Horrific' Criteria for Determining Intellectual Disability
Timothy Shriver (pictured), the Chairman of the Special Olympics, has called on the U.S. Supreme Court to end Texas' "use of stigmatizing stereotypes" in determining whether a defendant has Intellectual Disability and is therefore ineligible for execution. On November 29, the Court will hear argument in Moore v. Texas, a case challenging Texas' use of the “Briseño factors”—a set of unscientific criteria based in part on the fictional character of Lennie Smalls from the novel "Of Mice and Men"—to determine whether capitally charged prisoners have significant impairments in adaptive functioning that could qualify them for an Intellectual Disability diagnosis. In a column in TIME magazine, Shriver called Texas' method of adjudicating Intellectual Disability "horrific." He wrote, "[t]he inaccurate Texas standard reinforces one of the most damaging stereotypes about people with intellectual disability—that they can’t be 'good' at anything." In Moore's case, the judge relied on the fact that Moore was able to play pool and earned money mowing lawns as evidence that he did not really have an intellectual disability. Shriver applauded the Supreme Court's 2002 decision, Atkins v. Virginia, which barred the death penalty for defendants with Intellectual Disability. His article highlights some of the reasons people with Intellectual Disability should be exempt from execution: "people with intellectual disabilities have abilities but also challenges: they are less able to advocate for themselves; more likely to be coerced into behaviors they don’t understand; less likely to understand the implications of their actions and at higher risk for unreliable trials and wrongful convictions." Shriver encouraged the Court to bolster that protection by ending Texas' practices, which he said contravene established medical and clinical criteria: "It’s time for the Supreme Court to remind our nation that the Constitution and the vision of rights it embodies have no place for ill-informed and deadly stigmas."
(T. Shriver, "Special Olympics Chair: Texas’ Standard of Intellectual Disability Is Horrific," TIME, November 18, 2016.) See New Voices, Intellectual Disability, and U.S. Supreme Court.Tweet
Circuit Court Overturns South Carolina Death Sentence for Prosecutor's Racially Inflammatory Argument
The U.S. Court of Appeals for the Fourth Circuit has upheld a federal district court's decision ordering a new sentencing hearing for Johnny Bennett, a black man who was sentenced to death by an all-white South Carolina jury in a trial tainted by a prosecutor's racially-inflammatory cross-examination and argument. Bennett was prosecuted by Donald Myers (pictured), known as “Death Penalty Donnie” for having sent 28 South Carolina defendants to death row. In response to defense argument at Bennett's sentencing proceedings in 2000 that Bennett would not pose a future danger to society if incarcerated for life, Myers repeatedly invoked violent animal references, calling Bennett "King Kong on a bad day," a “caveman,” a “mountain man,” a “monster,” a “big old tiger,” and “[t]he beast of burden.” Earlier in the trial, Meyers had elicited irrelevant testimony that a white witness whom Bennett had assaulted when he was a juvenile had dreamt of "being chased by black savages." The prosecuter also gratuitously asked a witness about sexual relations Bennett had had with a "blonde-headed" prison guard. A juror later described Bennett as "just a dumb ni**er." The South Carolina Supreme Court upheld Bennett's sentence, saying that the "King Kong" comment was “not suggestive of a giant black gorilla who abducts a white woman, but rather, descriptive of [Bennett’s] size and strength as they related to his past crimes.” It ruled that the jurors comments did not show that he was “racially biased at the time of the ... trial.” In March 2016, a federal district court overturned Bennett's sentence, saying that Myers had "made multiple statements clearly calculated to excite the jury with racial imagery and stereotypes." The District Court judge called Myers' arguments "a not so subtle dog whistle on race that this court cannot and will not ignore." Judge J. Harvie Wilkinson, writing the Fourth Circuit opinion called Myers' comments "unmistakably calculated to inflame racial fears and apprehensions on the part of the jury." He wrote, "It is impossible to divorce the prosecutor’s 'King Kong' remark, 'caveman' label, and other descriptions of a black capital defendant from their odious historical context. And in context, the prosecutor’s comments mined a vein of historical prejudice against African-Americans, who have been appallingly disparaged as primates or members of a subhuman species in some lesser state of evolution." John Blume, who represented Bennett in the Fourth Circuit argument, said it was "antithetical to the criminal justice system for a prosecutor to pander to an all-white jury's racial fears and implicit biases."
(J. Gershman, "Appeals Court Vacates Death Sentence of Black Man Whom Prosecutor Likened to King Kong," Wall Street Journal Blog, November 21, 2016; M. Kinnard, "Appeals court: 'King Kong' comment prejudiced all-white jury," Associated Press, November 22, 2016; A. Cohen, "A Judge Overturned a Death Sentence Because the Prosecutor Compared a Black Defendant to King Kong," The Marshall Project, March 28, 2016.) Read the Fourth Circuit's decision. See Race and Prosecutorial Misconduct.Tweet
Los Angeles County, California is the home of the nation's largest death row, one that statistics show continues to rapidly grow. In January 2013, Los Angeles was responsible for more death row prisoners than any other county in the United States, and it has ranked as one of the two most prolific counties in imposing new death sentences each year since. The 31 death sentences imposed in the county between 2010 and 2015 are more than any other U.S. county imposed during that period and the four death sentences it has imposed so far in 2016 are more than have been imposed in any other county. According to the Fair Punishment Project report, "Too Broken to Fix," the Los Angeles death sentences exhibit serious racial disparities: 94% of the 31 death sentences imposed between 2010 and 2015 were directed at defendants of color. Although African Americans commit fewer than one-third of all Los Angeles County homicides, they comprised 42% of those condemned to death in this period. 45% of the new death sentences were imposed on Latino defendants, 6% against Asian Americans or Asian Pacific Islanders. Only two death sentences were imposed on White defendants during this period. Not surprisingly, a 2014 study found that White jurors in southern California were significantly more likely to recommend death sentences for Latino defendants than White defendants, especially when only weak mitigating evidence was presented. But that is precisely what the evidence suggests occurs in many Los Angeles County capital cases. The Los Angeles County Public Defender's Office, which handles half of all capital cases in the county, assigns its most experienced attorneys to death penalty cases and its clients are rarely sentenced to death. Of the 30 Los Angeles County death penalty appeals decided by the California Supreme Court between 2006 and 2015, just one defendant was represented by the public defender's office and three clients of the Alternate Public Defender, which takes about 20% of cases, were sentenced to death. However, court appointed attorneys—who handle the remaining 30% of capital defendants—accounted for 26 death verdicts, or 87% of the death sentences imposed in the county. While the public defenders presented one week's worth of mitigating evidence in the one case in which their client was sentenced to death, private attorneys averaged just 2.4 days of mitigation on their cases in the same period, including a number of cases in which they presented less than a day of mitigating evidence. Two Former Los Angeles County District Attorneys, Gil Garcetti and John Van de Camp, have changed their views on the death penalty and spoken out about the risk of executing innocent people, the high cost of capital punishment, and the emotional toll on victims' families. (Click map to enlarge.)Tweet
In 1986, California voters removed Rose Bird, the state's first female supreme court chief justice, from office after conservative groups spent more than $10 million in a recall effort that portrayed her as "soft on crime," emphasizing her court opinions overturning death sentences that had been unconstitutionally imposed. Ten years later, Tennessee Supreme Court Justice Penny White lost a retention election after death penalty proponents and other conservative groups targeted her for voting with the court majority in a 3-2 decision overturning a death sentence that had been imposed in a rape-murder case. Similar efforts to remove justices from state supreme courts in Kansas and Washington failed in the November 8, 2016 elections. As recent events illustrate the continuing power of money in judicial elections, a new book, The Case of Rose Bird: Gender, Politics, and the California Courts, chronicles Bird's career and the repeated efforts to remove her from office. A recent report from the Brennan Center for Justice suggests that outside money continues to play an outsized role in judicial elections today. The Brennan Center found that this year, TV spending in state supreme court races set a record of $19.4 million. Seventeen of the 20 groups that spent money on such elections this cycle do not disclose their donors, making it difficult to identify the people and groups weighing in on judicial races. But in Kansas, four of the five justices facing reelection were targeted for their decision to overturn the death sentences of Reginald and Jonathan Carr, and in the Washington Supreme Court retention election, business interests attempted to portray Justice Charlie Wiggins as "enabling predators." Both efforts to remove the justices failed. In Kansas, outside groups spent approximately $1.7 million on TV ads, but while a group calling itself Kansans for Justice attempted to oust the justices, another group called Kansans for Fair Courts spent almost equal amounts supporting retention. All five justices were reelected, but the four who were targeted by ads averaged about 56% support, as compared to 71% of the vote for the fifth justice, who was not the focus of TV ads. Alicia Bannon, Senior Counsel at the Brennan Center's Democracy's Program, said, "This unprecedented flood of spending from outside special interests and secretive donors is undermining faith in the fairness of our courts and the promise of equal justice for all."
(K. Cairns, "The Case of Rose Bird: Gender, Politics, and the California Courts," University of Nebraska Press, 2016; C. Thompson, "Outside Groups Set Spending Record in Judicial Races," The Marshall Project, November 15, 2016; "Spending By Outside Groups in Judicial Races Hits Record High, Secret Money Dominates," Brennan Center for Justice, November 15, 2016.) See Books.Tweet
Louisiana Supreme Court Orders New Trial for Rodricus Crawford in Controversial Caddo Parish Death Penalty Case
The Louisiana Supreme Court has overturned the conviction of Rodricus Crawford (pictured) and ordered that he be given a new trial in a controversial death penalty case that attracted national attention amid evidence of race discrimination, prosecutorial excess, and actual innocence. Crawford was convicted of murdering his young son based upon the testimony of a local doctor who claimed the boy had been suffocated, although autopsy results showed pervasive bronchopneumonia in the boy's lungs and sepsis in his blood, indicating that he may have died of pneumonia. After the trial, Crawford's lawyers presented additional evidence from experts in the fields of pediatric pathology, pediatric neuropathology, and pediatric infectious disease that the child died of natural causes from pneumonia and sepsis. The court did not overturn the conviction on those grounds, however, ruling that the local doctor's testimony had provided a sufficient evidentiary basis from which jurors could have convicted Crawford. Instead, it ruled that prosecutor Dale Cox -- who gained notoriety for telling the Shreveport Times that Louisiana needs to "kill more people" with the death penalty -- had violated the constitutional prohibition against striking jurors on the basis of race when he exercised peremptory challenges to exclude five African Americans from serving on the jury. A 2015 study of jury selection in 332 criminal trials in Caddo Parish between January 2003 and December 2012 by the human rights organization Reprieve Australia showed that, historically, Caddo prosecutors were three times as likely to strike an African-American from jury service than a prospective white juror. Crawford's lawyer, Cecelia Kappel, praised the Court's decision, saying “I am so thankful that they did the right thing in this case. It was a terrible tragedy since Day 1, and his conviction was a total injustice and the court really stepped up and fixed it, and I am looking forward to continuing to work with the DA’s office in order to reach a just outcome.” James E. Stewart, who was elected as the parish’s first black district attorney in 2015, said he would reassign the case to a new assistant district attorney for "re-evaluation ... to make a determination of a proper course of action to proceed forward in this matter.” Caddo Parish is one of the 2% of counties that is responsible for 56% of all death row inmates in the U.S. and was the subject of a recent report by Harvard University's Fair Punishment Project on outlier death penalty practices. Cox -- who in 2014 wrote a memo saying that Crawford "deserves as much physical suffering as it is humanly possible to endure before he dies" and told the the jury that Jesus Christ would have imposed the death penalty in this case -- along with one other Caddo Parish prosecutor, was responsible for 3/4 of all death sentences imposed in Louisiana over a recent five-year period.
(J. Simerman, "La. Supreme Court vacates conviction, death sentence for Caddo Parish man in death of toddler son," New Orleans Advocate, November 16, 2016; R. Santana, "Court throws out conviction in controversial death sentence," Associated Press, November 16, 2016.) See Innocence, Race, and Prosecutorial Misconduct. Read the Louisiana Supreme Court's opinion in State v. Crawford here.Tweet
A new study by Lewis & Clark Law School and Seattle University that examined the costs of hundreds of aggravated murder and murder cases in Oregon has concluded that "maintaining the death penalty incurs a significant financial burden on Oregon taxpayers." The researchers found that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those in a murder case that results in a sentence of life imprisonment or a term of years. Excluding state prison costs, the study found, cases that result in death sentences may be three to four times more expensive. The study found that 61 death sentences handed down in Oregon cost taxpayers an average of $2.3 million, including incarceration costs, while a comparison group of 313 aggravated murder cases cost an average of $1.4 million. Excluding state prison costs, the difference was even more stark: $1.1 million for death sentences vs. $315,159 for other cases. The study also found that death penalty costs were escalating over time, from $274,209 in the 1980s to $1,783,148 in the 2000s. (See chart. All costs are in 2016 dollars.) The study examined cost data from local jails, the Oregon Department of Corrections, the Office of Public Defense Services, and the Department of Justice, which provided information on appeals costs. Prosecution costs were not included because district attorney's office budgets were not broken down by time spent on each case. Among the reasons cited for the higher cost in death penalty cases were the requirement for appointment of death-qualified defense lawyers, more pre- and post-trial filings by both prosecutors and the defense, lengthier and more complicated jury selection practices, the two-phase death penalty trial, and more extensive appeals once a death sentence had been imposed. Professor Aliza Kaplan, one of the authors of the study, said, "The decision makers, those involved in the criminal justice system, everyone, deserves to know how much we are currently spending on the death penalty, so that when stakeholders, citizens and policy-makers make these decisions, they have as much information as possible to decide what is best for Oregon." Oregon has carried out just two executions since the death penalty was reinstated, both of inmates who waived their appeals. The state currently has a moratorium on executions.
(A. Kaplan, P. Collins, and V. Mayhew, "Oregon's Death Penalty: A Cost Analysis," November 16, 2016; T. Hernandez, "How much does the Oregon death penalty cost? New study examines 100s of cases," The Oregonian, November 16, 2016; Press Release, "New Report Calculates Oregon’s Death Penalty Financial Costs," Lewis & Clark Law School and Seattle University, November 16, 2016.) See Costs and Studies.Tweet
OUTLIER COUNTIES: Alabama's Leading Death Sentencing County Elects Prosecutors Who Oppose Capital Punishment
Jefferson County, Alabama is among both the 2% of counties that account for more than half of all executions in the U.S. and are responsible for more than half of all prisoners on death row across the country. It led the state in new death sentences from 2010-2015, putting more people on death row than 99.5% of U.S. counties. All five of the defendants sentenced to death in those cases were Black. But the county may soon see a decline in death sentences as voters appear to have ousted the county's two elected district attorneys in favor of prosecutors who say they are "personally opposed" to the death penalty and plan to use it rarely. Charles Todd Henderson was elected as district attorney of Jefferson's Birmingham division, and Lynneice Washington leads a tight race in the Bessemer division, where votes will be recounted on November 21. Henderson has criticized Alabama's judicial override policy, which allows judges to impose a death sentence even when a jury recommends life, saying "We serve at the will of the people .... We should honor what the people say." Alabama is the only state to permit such overrides and Jefferson County judges overrode jury's recommendations for life in 44% of the 18 death penalty cases from the county that were decided on direct appeal between 2006-2015. All 18 cases involved a non-unanimous jury, an outlier practice that was struck down by state courts in Delaware and Florida this year, leaving Alabama as the last state to allow it, and in every one of those cases, defense lawyers presented less than one day’s worth of mitigation evidence. Henderson also said he supports reviewing current Jefferson County death penalty cases for possible wrongful convictions, citing the case of Anthony Ray Hinton, who was released in 2015 after spending 30 years on death row. Hinton's trial was tainted by racial bias, inadequate representation, and junk science. Washington echoed Henderson's concerns, saying, "I am personally opposed to the death penalty because there have been so many people who were put on death row who were later found to be innocent." In addition to Hinton, two other wrongfully convicted death row prisoners from Jefferson County also have been released. Wesley Quick, who was just 18 years old at the time of the murder for which he was twice wrongly sentenced to death, was acquitted of all charges in his third trial in 2003. Montez Spradley was sentenced to death by a judge who overrode a 10-2 jury recommendation for life. It was later discovered that a star witnesses for the prosecution—Spradley's disgrunted ex-girlfriend—had been paid $10,000 for her testimony, and although the judge had personally approved half of that payment, neither she nor the prosecution disclosed it to the defense. Spradley entered a no-contest plea in exchange for his freedom in 2015.
("Too Broken to Fix: Part II," The Fair Punishment Project, September 2016; K. Faulk, "New Jefferson County prosecutors 'personally opposed' to death penalty," AL.com, November 15, 2016; R. Balko, "The outrageous conviction of Montez Spradley," Washington Post, September 21, 2015.) See New Voices and Innocence.Tweet
California death penalty opponents filed a taxpayer suit on November 9 to block Proposition 66—the ballot initiative promoted as speeding up the state's execution process—from going into effect. The suit was filed by former El Dorado County supervisor Ron Briggs (pictured)—who co-authored the measure to reinstate California's death penalty in 1978—and former California Attorney General John van de Camp. California voters narrowly approved Proposition 66, which was written by prosecutors, by a vote of 50.9%-49.1%. The proposition makes a number of changes to state death penalty appeals procedures, including 5-year time limits for the state Supreme Court to rule on appeals, shortening filing deadlines, transferring the initial consideration of death penalty appeals from the appellate courts to the trial courts, and requiring lawyers to take on death penalty appeals if they wish to keep court appointments for other criminal appeals. The lawsuit argues that these measures would “impair the courts’ exercise of discretion, as well as the courts’ ability to act in fairness to the litigants before them” and raises concerns that death row inmates will be assigned lawyers “who do not currently meet the qualification standards.” Briggs was particularly critical of a new provision that requires initial appeals to be heard by the trial court: "What 66 is saying is we are going to keep the case in the lower court, and those same eyes that convicted the defendant are going to review the appeal. We believe that infringes on the constitution and is flat out not fair." The lawsuit challenges Proposition 66 on three separate legal grounds. It argues that the proposition "illegally interferes with the jurisdiction of California's state courts" by revoking the authority conferred by the state constitution for California's appellate courts to hear capital habeas corpus cases and violates the state constitution's separation of powers by "materially impair[ing]" the courts' power to resolve capital appeals. It also argues that Proposition 66 violated the state constitutional requirement that "an initiative measure may not embrace more than one subject." In addition to the expressed purpose of "death penalty reform," Proposition 66 included provisions for victim compensation, changes in the state's Administrative Procedures Act governing the adoption of administrative regulations, and disbanding the unpaid Board of Directors that governs the state's institutional capital defender organization.
(J. Ulloa, "Proposition 66 hasn't been called by elections officials, but death penalty opponents are already taking it to court," Los Angeles Times, November 10, 2016; B. Egelko, "Suit filed to block death-penalty measure Prop. 66," San Francisco Chronicle, November 9, 2016.) See Recent Legislative Activity. Read the Petition for Extraordinary relief here.Tweet
OUTLIER COUNTIES: A Pledge of Change After Years of Error and Racial Bias in Hillsborough County Death Sentences
Change may be in the offing in Hillsborough County, Florida after voters ousted incumbent State Attorney Mark Ober on November 8 and replaced him with a reform candidate, Andrew Warren (pictured). Hillsborough ranks among the 2% of U.S. counties that are responsible for a majority of the prisoners currently on death rows across the country. The five death sentences imposed in Hillsborough from 2010 to 2015 under Ober's tenure placed the county among the 16 counties that had imposed the highest number of death sentences in the U.S.—more than 99.5% of other counties. Hillsborough's aggressive use of the death penalty has been plagued by error—three prisoners sentenced to death in Hillsborough have later been exonerated—and reflects a legacy of racial bias and exclusion. Tampa, the largest city in Hillsborough County, was among the four cities with the nation's largest Ku Klux Klan populations after the Great Depression. The Hillsborough County Bar Association did not update their charter to allow Black lawyers to join until 1972. The legacy of discrimination is evident in the recent death sentences imposed in the county: two-thirds have been imposed on Black defendants; and although a significant majority of murder victims in the county are Black, 60% of the victims in the cases in which death sentences were returned were White. Incoming state attorney Warren has vowed to address both the overzealous pursuit of the death penalty in the county and the problem of wrongful convictions. After Hillsborough was included in the Fair Punishment Project's report on outlier counties, Warren said, "That we are an extreme outlier in such a critical area is disturbing.... Our use of the death penalty needs to be fair, consistent, and rare. Unfortunately, for many years, it hasn’t been." Warren has also proposed the creation of a Conviction Integrity Unit to identify and redress wrongful convictions.
("Too Broken to Fix: Part II," The Fair Punishment Project, September 2016; M. Perry, "New report says Hillsborough and Pinellas County are outliers nationally in calling for death penalty," Florida Politics, October 12, 2016; M. Chammah, "These Prosecutors Campaigned for Less Jail Time — And Won," The Marshall Project, November 9, 2016; Press Release, "Andrew Warren Pledges to Fix Unconstitutional Use of Death Penalty in Hillsborough," Andrew Warren for State Attorney, October 13, 2016.) See Race and Innocence.Tweet
Prosecutors in three counties known for their outlier practices on the death penalty were defeated by challengers running on reform platforms, while voters in Oregon and Washington re-elected governors who acted to halt executions. In Hillsborough County, Florida, Democrat Andrew Warren defeated Republican incumbent Mark Ober (pictured, l.). Warren pledged to seek the death penalty less often and establish a unit to uncover wrongful convictions. In Harris County, Texas, incumbent Devon Anderson (pictured, r.) was defeated by Democratic challenger Kim Ogg. Ogg ran on a platform of broad criminal justice reform and had received support from the Black Lives Matter movement. Harris County leads the nation in executions and is second only to Los Angeles in the number of people on its death row. Ogg had said that the death penalty had created "a terrible image for our city and our county" and pledged that, "[u]nder an Ogg admninistration, you will see very few death penalty prosecutions." Brandon Falls, District Attorney of Jefferson County, Alabama, lost his seat to Charles Todd Henderson, who does not support the death penalty and said he plans to “bring about real criminal justice reform.” Hillsborough, Harris, and Jefferson all rank among the 2% of U.S. counties responsible for a majority of death row inmates in the U.S., and were among the 16 most prolific death sentencing counties in the U.S. between 2010-2015. “People are scrutinizing their local criminal justice systems, and people are realizing how much power state attorneys have, and they are seeing elections as a way to change those results,” Deborrah Brodsky, director of the Project on Accountable Justice at Florida State University, said. In gubernatorial elections, voters re-elected governors who had halted executions in their states. Washington voters re-elected Governor Jay Inslee, who imposed a death penalty moratorium, and Oregon voters gave a full term to Governor Kate Brown, who had extended her predecessor's moratorium and pledged to keep the moratorium in effect if elected. In North Carolina, voters defeated incumbent Governor Pat McCrory, who had supported efforts to repeal the state's Racial Justice Act.
(J. Smith, "Overzealous Prosecutors Ousted Across the Country, Showing There Is Still Hope for Reform," The Intercept, November 10, 2016; R. Balko, "Believe it or not, it was a pretty good night for criminal-justice reform," The Washington Post, November 9, 2016; M. Chammah, "These Prosecutors Campaigned for Less Jail Time — And Won," The Marshall Project, November 9, 2016; J. Herskovitz, "U.S. death sentences wane, even in Texas county with most executions," Reuters, November 7, 2016.) See Recent Legislative Activity and Public Opinion.Tweet
Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions
Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.”
(J. Ollua, "California voters reject measure to repeal death penalty, approve plan to expedite it," Los Angeles Times, November 9, 2016; P. Hammel, "Nebraskans vote overwhelmingly to restore death penalty, nullify historic 2015 vote by state Legislature," Omaha World-Herald, November 9, 2016; J. Duggan, "With death penalty reinstated in Nebraska, Ricketts to focus on carrying it out," Omaha World-Herald, November 9, 2016; State Question 776: "Oklahoma voters reaffirmed their support of capital punishment," Tulsa World, November 8, 2016; S. Zeff, "All Kansas Supreme Court Justices Retained," KCUR, November 9, 2016.) See Recent Legislative Activity.Tweet
Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.
(D. Pollitt and B. Warren, "Thirty Years of Disappointment: North Carolina's Remarkable Appellate Batson Record," North Carolina Law Review, Vol. 94, 2016; A. Eisenberg, "Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2012," Northwestern University Law Journal, forthcoming.) See Race and Law Reviews.Tweet