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Judge Orders Evidentiary Hearing On Constitutionality of Federal Death Penalty

Fri, 02/12/2016 - 12:08pm

U.S. District Court Judge Geoffrey Crawford has ordered an evidentiary hearing on Donald Fell's (pictured) challenge to the constitutionality of the federal death penalty. In court filings seeking to bar federal prosecutors from seeking death against him in a pending retrial, Fell has argued that the federal death penalty constitutes cruel and unusual punishment in violation of the Fifth and Eighth Amendments to the U.S. Constitution. Among other grounds, he has asserted that the death penalty no longer comports with contemporaneous U.S. values and that there are significant racial and geographic disparities in the manner in which the federal death penalty has been applied. Fell was sentenced to death in Vermont on federal murder charges, a sentence he could not have received in state court because Vermont does not have the death penalty. His conviction was overturned because of juror misconduct, and he is facing a retrial in 2017. In the order calling for a hearing, Judge Crawford wrote, "Preliminarily, and with an open mind about the arguments recently made by both sides, the court is looking at the constitutional challenge to the death penalty." He said that, despite efforts in the 1970s to remedy constitutional problems, "40 years later the question of a systemic violation of the Eighth Amendment remains."

(W. Ring, "Judge in Fell case accepts challenge of law," Associated Press, February 10, 2016; W. Ring, "Donald Fell fights death penalty law," Associated Press, November 17, 2015.) Read Donald Fell's Motion to Bar Death Penalty here. See Arbitrariness.

Texas Prisoner Seeks Supreme Court Review of Death Sentence Tainted By Racial Bias

Thu, 02/11/2016 - 11:36am

Duane Buck, who was sentenced to death after a defense expert witness testified that Buck could pose a future danger to society because he is black, has asked the U.S. Supreme Court to grant him a new sentencing hearing because of his lawyer's ineffectiveness. Buck is one of six defendants whose Texas capital trials were identified by a Texas Attorney General's report as having been tainted by race-based testimony by psychologist, Dr. Walter Quijano. The other five were granted new sentencing hearings after the Texas Attorney General agreed that the “infusion of race as a factor for the jury to weigh in making its determination violated [the defendant's] constitutional right to be sentenced without regard to the color of his skin.” However, after a change in the elected Attorney General, Texas opposed a new sentencing for Mr. Buck. During Buck's sentencing trial, the prosecution asked Quijano - whom it had used as a witness in other cases - if, "the race factor, black, increases the future dangerousness for various complicated reasons." Buck's lawyer did not object, and Quijano replied, "yes." As Buck stated in a documentary about his case, "He was basically saying because you’re black, you need to die. My lawyer didn’t say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts." The state and federal courts rejected Buck's prior challenge based on the prosecutor's conduct, suggesting the fault lay with the defense. Buck's attorneys now argue that his trial lawyer's failure to object to Quijano's testimony constituted ineffective assistance of counsel, in violation of his Sixth Amendment rights. The lower courts turned down that appeal as well, and Buck filed this petition for writ of certiorari asking the U.S. Supreme Court to review his case.

(C. Tolan, "Prosecutors said this death row inmate was dangerous because he’s black. Now he’s asking the Supreme Court for a new trial," Fusion, February 9, 2016; A. Turner, "Lawyers for Houston killer Duane Buck turn to U.S. Supreme Court, Attorneys want to ensure race did not influence sentencing," Houston Chronicle, February 5, 2016.) Read Duane Buck's Petition for Writ of Certiorari here. See Race and Arbitrariness.

Texas Board Confirms Disbarment of Prosecutor for Misconduct in Anthony Graves Case

Wed, 02/10/2016 - 12:31pm

The disciplinary board of the Texas State Bar rejected an appeal on February 9 from Charles Sebesta, the prosecutor whose misconduct led to the wrongful conviction of Anthony Graves (pictured, r.). The board's decision disbarring Sebesta for what it called "egregious" misconduct is now final. Anthony Graves was convicted in 1994 on the false testimony of Robert Carter, who claimed Graves was his accomplice. Graves was exonerated in 2010 and filed a complaint against Sebesta in 2014. Sebesta was disbarred for eliciting Carter's false statements and withholding exculpatory evidence from Graves' defense. The disciplinary board made an initial ruling to revoke Sebesta's law license in 2015, but he appealed the ruling on technical grounds. Graves lauded the board's decision, saying, “The bar stepped in to say that’s not the way our criminal justice system should work. This is a good day for justice.”

(B. Grissom, "State Bar board affirms disbarment of prosecutor who sent innocent man to death row," Dallas Morning News, February 8, 2016.) See Prosecutorial Misconduct.

Majority of Floridians Prefer Life Sentence to Death Penalty, 73% Would Require Unanimous Jury Vote for Death

Tue, 02/09/2016 - 12:37pm

In the wake of a U.S. Supreme Court decision striking down Florida's death-sentencing procedures, a new poll shows that nearly two thirds of Floridians now prefer some form of life sentence to the death penalty and nearly three-quarters favor requiring the jury to unanimously agree on the sentence before the death penalty can be imposed. The poll by Public Policy Polling found that 62% of respondents preferred some form of life in prison over the death penalty for convicted murderers, while 35% preferred the death penalty. A plurality (38%) preferred life without parole coupled with restitution payments, while an additional 24% preferred either life without parole or life with parole eligibility after 40 years. The poll comes shortly after the Supreme Court declared Florida's sentencing scheme unconstitutional in Hurst v. Florida because it permitted judges, rather than juries, to determine whether the prosecution had proven factors that make a defendant eligible for the death penalty. It left open a second question as to whether jury recommendations for death had to be unanimous. As the Florida legislature considers its response to Hurst, the poll showed broad support across the political spectrum for requiring jury unanimity in sentencing. Overall, 73% of Floridians supported a unanimity requirement, including 70% of Republicans and Independents and 77% of Democrats. A Tampa Bay Times investigation this week raised questions as to the reliability of non-unanimous death sentences. The paper reported that death sentences imposed after non-unanimous jury recommendations were far more likely to be overturned and posed serious risks to the innocent. 18 of the 20 Florida exonerations for which jury data was available (90%) involved non-unanimous jury recommendations, including 3 cases in which judges overrode jury recommendations for life sentences. Stephen Harper of the Florida Center for Capital Representation at Florida International University College of Law, responded to the polling results, saying, "The state legislature should follow Floridians’ lead and support a unanimous jury requirement in capital cases. Failing to do so will leave Florida’s death penalty statute vulnerable to additional costly litigation."

The Florida State Senate Criminal Justice Committee has approved a bill requiring jury unanimity. A bill currently in the State House would permit a judge to impose a death sentence if nine or more jurors recommended death. (A. Phillips, "How the nation’s lowest bar for the death penalty has shaped death row," Tampa Bay Times, January 31, 2016; Public Policy Polling, "Florida Survey Results," February 8, 2016; S. Bousquet, "Senate panel OKs death penalty fix; requires unanimous juries," Tampa Bay Times, February 8, 2016; Press Release, Stephen Harper, February 8, 2016.) See Public Opinion.

BOOKS: "Confronting the Death Penalty: How Language Influences Jurors in Capital Cases"

Mon, 02/08/2016 - 1:44pm

In her new book, Confronting the Death Penalty: How Language Influences Jurors in Capital Cases, Marshall University Anthropology Professor Robin Conley examines "how language filters, restricts, and at times is used to manipulate jurors' experiences while they serve on capital trials and again when they reflect on them afterward." Conley spent fifteen months in ethnographic fieldwork observing four Texas capital trials and interviewing the jurors involved. She analyzes the language used in those trials, as well as written legal texts, to gain a greater understanding of how jurors go about making the decision for life or death. She also explores the questioning jurors undergo as to their beliefs about the death penalty, characterizing it as "socialization into killing." She writes that death penalty trials involve a number of communication practices - such as "dehumanizing references to defendants that stymie empathy between them and jurors, written and oral instructions that allow jurors to deny their personal involvement in defendants' deaths" - that create distance between jurors and defendants and "deny the humanistic side of legal decision-making."  In the book's conclusion, she writes of the importance of this type of language for the maintenance of the death penalty: "It is the words with which attorneys address potential jurors during voir dire, the written instructions on which jurors rely in the deliberation room, and the talk about defendants throughout the trial that maintain the persistent operation of the death penalty. By subverting other forms of experience, moreover, particular, authoritative modes of language allow jurors to send defendants to their deaths."

(R. Conley, "Confronting the Death Penalty: How Language Influences Jurors in Capital Cases," Oxford Studies in Language and Law, 2016.)

California Inmate Raises Innocence Claims As State Seeks to Resume Executions

Fri, 02/05/2016 - 1:41pm

As California's new lethal injection protocol moves the state towards resuming executions, Kevin Cooper (pictured, left) is seeking clemency from Gov. Jerry Brown on the grounds that he is innocent. Cooper - one of 18 death-row prisoners who have exhausted their court appeals and face execution - was sentenced to death for the 1983 murders of a married couple, their 10-year-old daughter, and the daughter's 11-year-old friend. However, evidence that was suppressed as a result of police and prosecutorial misconduct raises serious questions as to his guilt. The key witness against Cooper was the 8-year-old son of the murdered couple, who was gravely injured, but survived the attack. On the day of the murders, the boy said that three white or Hispanic men had committed the killings, and after seeing photos of Cooper on television, he told his grandmother and a sheriff's deputy that Cooper - who is black - was not the killer. After subsequent interrogations by deputies, in which they misrepresented his recollections, he later identified Cooper as the sole killer and testified to that effect at Cooper's trial. Cooper's lawyers were denied an opportunity to cross-examine him. Prosecutors also presented evidence at trial that shoeprints from the crime scene had to belong to Cooper, because he had recently escaped from prison and the prints matched prison-issued shoes that weren't available to the public. A warden from the prison, however, had provided investigators with information rebutting that assertion, but prosecutors hid the warden's statements from the jury. Police also illegally destroyed blood-splattered pants given to them by a woman who believed her husband had been involved in the murders, eliminating an essential piece of evidence that could have helped Cooper prove his innocence. Finally, independent testing of a blood sample that the state claimed had been drawn from Cooper found two different sets of DNA, meaning that the sample had either been contaminated or deliberately altered. In 2009, the U.S. Court of Appeals for the Ninth Circuit upheld Cooper's conviction, but five judges wrote a strong dissent detailing the misconduct and concluding that it was, "highly unlikely that Cooper would have been convicted," without it.

(A. Melber, "End to California Execution Moratorium Raises Controversial Death Penalty Case," NBC News, January 31, 2016.) Read the Ninth Circuit opinion here. See Innocence and Prosecutorial Misconduct.

STUDIES: Ohio Executions Reveal Vast Racial, Gender, and Geographic Inequities

Fri, 01/29/2016 - 1:00pm

"Ohio’s death penalty is plagued by vast inequities" grounded in race, gender, and geography, according to a new University of North Carolina study. UNC-Chapel Hill political science professor Frank Baumgartner examined the 53 executions Ohio has conducted since resuming capital punishment in the 1970s. His study found "quite significant" racial, gender, and geographic disparities in Ohio's executions that, Baumgartner said, "undermine public confidence in the state’s ability to carry out the death penalty in a fair and impartial manner." The data showed that Ohio was 6 times more likely to execute a prisoner convicted of killing a white female victim than if the victim was a black male. Although 43% of Ohio murder victims are white, 65% of Ohio executions involved the murder of white victims. Similarly, while only 27% of Ohio murder victims are female, 52% of all executions involved cases with female victims. The study also discovered significant geographic disparities in Ohio executions. More that half of the state's executions were concentrated in just 4 counties, while more than 3/4 of Ohio counties have not produced any executions. Lake County had an execution rate that was 11 times the statewide average. Although the state's three most populous counties (Cuyahoga, Franklin, and Hamilton) have similar murder rates, Hamilton's .60 executions per 100 homicides was more than double the rate in Cuyahoga and nearly 9 times that in Franklin. Sharon L. Davies, Executive Director of the Kirwan Institute for the Study of Race and Ethnicity at The Ohio State University, said that the "race or gender of a victim, and the county of the crime, should not influence who is sentenced to die" and urged "Ohio citizens and lawmakers[to] review the findings of this important research." (Click image to enlarge.)

(F. Baumgartner, "The Impact of Race, Gender, and Geography on Ohio Executions," University of North Carolina at Chapel Hill, January 28, 2016; A. Johnson, "Study finds racial, gender bias in Ohio executions," The Columbus Dispatch, January 28, 2016.) See Studies and Arbitrariness.

Missouri Likely to See Change After Historic High in Executions

Wed, 01/27/2016 - 12:54pm

A decline in executions is likely in Missouri after two years of unusually high numbers. In 2014, Missouri tied with Texas for the most executions in the U.S., and it was second to Texas in 2015. However, changing attitudes about the death penalty--similar to national shifts--are evident in Missouri's sentencing trends: no one was sentenced to death in Missouri in 2014 or 2015, and less than one person per year has been sentenced to death in the past seven years. Moreover, a bill with bi-partisan support has been introduced to repeal the death penalty. It passed the Senate General Laws committee in late January. An editorial in the Columbia Daily Tribune highlighted the political diversity in the legislative support for the measure. Among those who voted the bill out of committee were two Democrats and two Republicans. Sen. Paul Wieland cited his pro-life views as a reason for support, while Sen. Rob Schaaf said, as long as it is "not fairly applied...I'm going to be opposed to the death penalty."

Staci Pratt, state coordinator for Missourians for Alternatives to the Death Penalty, said the executions over the last two years reflect a bygone era: “Most were on death row for more than 15 years. We were looking at a snapshot of history. Today we are beginning to see a shift.”

(T. Rizzo, "Missouri’s execution pace expected to slow in 2016," Kansas City Star, January 18, 2016; H. Waters, "Death penalty," Columbia Daily Tribune, January 26, 2016). See Sentencing and Recent Legislation.

PUBLIC OPINION: Support for Repealing Death Penalty Grows in California

Tue, 01/26/2016 - 12:46pm

A recent survey of Californians conducted by The Field Poll found that voters are evenly split between wanting to speed up the execution process (48%) and supporting repeal of the death penalty and replacing it with life without parole (47%). Support for repeal has grown since 2014, when the question was last asked. At that time, 40% favored replacing the death penalty with life without parole and 52% supported speeding up the process. Californians may face a choice between the two options in November, as competing initiatives have been proposed. Republicans, whites, and voters over age 50 were more likely to support speeding up executions, while Democrats, Hispanics, blacks, and voters under 50 favored repealing the death penalty. "There continues to be a very strong movement away from support for the death penalty in California,” said Matt Cherry, executive director of Death Penalty Focus, an organization that is supporting the initiative to repeal the death penalty. (click graphic to enlarge).

(M. DiCamillo, "Californians Sharply Divided About What to Do with the State's Death Penalty Law," The Field Poll, January 15, 2016; B. Egelko, "Fewer in state support capital punishment in latest Field Poll," San Francisco Chronicle, January 15, 2016). See Public Opinion and Recent Legislative Activity.

VICTIMS: Murder Victim's Daughter Says "Broken" Death Penalty Doesn't Bring Closure and is "A Waste"

Mon, 01/25/2016 - 12:22pm

Dawn Mancarella, whose mother, Joyce Masury, was murdered 20 years ago, called the death penalty "a waste of energy and money [that] doesn’t bring justice or closure." Sharing her views on the death penalty in a column for Connecticut's Register Citizen, Mancarella expressed support for the Connecticut Supreme Court's 2015 decision declaring the death penalty "incompatible with contemporary standards of decency in Connecticut." "It’s disappointing to see that the court is re-visiting this decision," she wrote, "but I hope they will affirm the original decision and leave the death penalty behind us." Mancarella said that the death penalty forces victims' family members to "go through the pain of reliving their loved one’s murder over and over again, year after year" through the lengthy appellate process. This, she says, "is the opposite of justice and closure — even if the convicted offender is put to death in one, ten or twenty years, the anguish of losing your loved one never goes away and a state appointed execution doesn’t make you feel any better."  She contrasts the energy and money expended on the death penalty with the state's treatment of programs to help victims' families heal:  "it is beyond frustrating to see millions of dollars invested into a single capital case," she says, "while victims’ services are perpetually underfunded." She concludes, "It is time to give back our misplaced time and energy to the survivors of homicide for their healing and truly honoring their loved one."

(D. Mancarella, "FORUM: Capital punishment a waste of energy and money," The Register Citizen," January 21, 2016.) See Victims and New Voices.

NEW VOICES: Retired Colorado Corrections Officer Raises Questions of Deterrence, Innocence

Fri, 01/22/2016 - 6:16pm

In a recent op-ed for The Denver Post, retired corrections officer and military veteran Pete Lister offered a critique of the death penalty, saying it fails as a deterrent, risks executing innocent people, and costs more than life without parole. "Capital punishment has not, in a single state, proven to be a deterrent to capital crime." Lister said. "Society consists of human beings who make mistakes. There are those who are, occasionally, negligent, and some who are even dishonest or unethical. We are faced with the troubling fact that if we, as a society, err in a capital case, the sentence is irreversible." Drawing on his experience as a corrections officer, Lister compared capital punishment to life without parole, saying, "involuntary incarceration is not the life of Riley that some would have you believe" and asking whether "life in prison without the hope of parole" may "actually [be] worse than a death sentence." Discussing the risk or error, he said, "When we, society, wrongfully convict someone, whether through malfeasance or neglect, or whether the technology extant at time of trial was insufficient to prove innocence, then we, society, have a responsibility to release him, to publicly acknowledge the error, and allow that citizen to move past the horror that we, society, have inflicted. How do we do that after we've put him to death?" Lister also noted that the cost of capital punishment, which he said "far exceeds the cost of incarcerati[on] even for life, ... is more than simply financial. It's been argued that voting for execution takes a terrible emotional toll on jury members." He concludes with a question: "Whether you believe the death penalty is justifiable, if you were the one being accused of a murder you had not committed, where would you stand on this issue?"

(P. Lister, "Colorado Voices: Undermining the death penalty," The Denver Post, January 11, 2016.) See New Voices.

U.S. Supreme Court Reverses 3 Kansas Decisions Overturning Death Penalties

Wed, 01/20/2016 - 12:44pm

In an 8-1 decision in Kansas v. Carr, the U.S. Supreme Court reversed the decisions of the Kansas Supreme Court granting new sentencing hearings in three capital cases, restoring the death sentences of Jonathan Carr, Reginald Carr, Jr., and Sidney Gleason pending further appellate review. The Kansas Supreme Court had vacated the men's death sentences because the jury had not been informed, as required by the Kansas Supreme Court, that mitigating factors presented during the sentencing proceeding to spare a defendant's life do not need to be proven beyond a reasonable doubt. In his opinion for the Court, Justice Antonin Scalia wrote that such an instruction was not constitutionally required. "Jurors," he said, "will accord mercy if they deem it appropriate, and withhold mercy if they do not." He wrote that on the facts of these cases, there was little possibility that the jury was confused about its role in finding and giving effect to mitigating evidence. The Court also rejected an argument that the Carr brothers should have had separate sentencing proceedings, saying that even if any evidence against the brothers had been improperly admitted, it did not affect the fundamental fairness of their penalty trial. The lone dissenter in the case, Justice Sonia Sotomayor, wrote that the case should not have been reviewed, saying, "Kansas has not violated any federal constitutional right. If anything, the State has overprotected its citizens based on its interpretation of state and federal law." The decision leaves open the possibility that the Kansas courts could revisit these issues under state law.

(R. Barnes, "Court sides with Kansas officials in upholding death penalty for brothers," The Washington Post, January 20, 2016.) Read the Court's decision in Kansas v. Carr. See U.S. Supreme Court.

The Reverend Dr. Martin Luther King, Jr. on the Death Penalty

Mon, 01/18/2016 - 11:10pm

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on capital punishment. In a November 1957 article in Ebony, Dr. King was asked "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God."  Several months later, Alabama executed Jeremiah Reeves, a young black man who was 16 years old when he was charged with raping a white woman. Tried before an all-white jury, Reeves was convicted and sentenced to death. In April 1958, Dr. King stood on the state capitol steps during a prayer pilgrimage protesting what he called "a tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence. It was the severity of Jeremiah Reeves penalty that aroused the Negro community, not the question of his guilt or innocence." Later, in his sermon "Loving Your Enemies," Dr. King preached a philosophy that had no room for capital retribution: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction."

("Advice for Living," Ebony, November 1957; M.L. King, Jr., “Statement Delivered at the Prayer Pilgrimage Protesting the Electrocution of Jeremiah Reeves.”  April  6, 1958, Montgomery, Alabama; M.L. King, Jr., "Loving Your Enemies" in Strength to Love, 1963.) See Religion and Race.

The Reverend Dr. Martin Luther King, Jr. on the Death Penalty

Mon, 01/18/2016 - 1:00am

On Martin Luther King Day, DPIC looks at the Reverend Dr. Martin Luther King's views on capital punishment. In a November 1957 article in Ebony, Dr. King was asked "Do you think God approves the death penalty for crimes like rape and murder?" He responded, "I do not think that God approves the death penalty for any crime, rape and murder included.... Capital punishment is against the better judgment of modern criminology, and, above all, against the highest expression of love in the nature of God."  Several months later, Alabama executed Jeremiah Reeves, a young black man who was 16 years old when he was charged with raping a white woman. Tried before an all-white jury, Reeves was convicted and sentenced to death. In April 1958, Dr. King stood on the state capitol steps during a prayer pilgrimage protesting what he called "a tragic and unsavory injustice." Dr. King said: "A young man, Jeremiah Reeves, who was little more than a child when he was first arrested, died in the electric chair for the charge of rape. Whether or not he was guilty of this crime is a question that none of us can answer. But the issue before us now is not the innocence or guilt of Jeremiah Reeves. Even if he were guilty, it is the severity and inequality of the penalty that constitutes the injustice. Full grown white men committing comparable crimes against Negro girls are rare ever punished, and are never given the death penalty or even a life sentence. It was the severity of Jeremiah Reeves penalty that aroused the Negro community, not the question of his guilt or innocence." Later, in his sermon "Loving Your Enemies," Dr. King preached a philosophy that had no room for capital retribution: "Returning hate for hate multiplies hate, adding deeper darkness to a night already devoid of stars. Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction."

("Advice for Living," Ebony, November 1957; M.L. King, Jr., “Statement Delivered at the Prayer Pilgrimage Protesting the Electrocution of Jeremiah Reeves.”  April  6, 1958, Montgomery, Alabama; M.L. King, Jr., "Loving Your Enemies" in Strength to Love, 1963.) See Religion and Race.

Study Finds Disparities in Race, Gender, and Geography in Florida Executions

Thu, 01/14/2016 - 12:08pm

Florida executions are plagued by stark racial, gender, and geographic disparities, according to a new University of North Carolina study, with executions 6.5 times more likely for murders of white female victims than for murders of black males. (See graph, left. Click to enlarge.). UNC Chapel Hill Professor Frank Baumgartner examined data from the 89 executions conducted in Florida between 1976 - when the U.S. Supreme Court upheld Florida's use of the death penalty - and 2014. Baumgartner found that executions occurred disproportionately in cases involving white victims and victims who were female. While 56% of all Florida homicide victims during that period were white, 72% of all executions involved white victims. Similarly, 26% of all murder victims were female, but 43% of executions involved female victims. 71% of the black defendants executed in Florida had been convicted of murdering white victims. On the other hand, no white person had been executed in Florida for killing a black victim. Baumgartner also found that the state's use of the death penalty was geographically concentrated, with just 6 of Florida's 67 counties accounting for more than half of all executions. More than half of Florida's counties (36) have not produced any executions, and homicide rates were 31% lower in those counties. The study concludes that "factors such as the victims’ race and gender, as well as the county in which the offender was convicted, inappropriately influence who is executed in Florida....These disparities are not measured by a few percentage points of difference. Rather, they differ by orders of magnitude, clearly demonstrating that vast inequities characterize the implementation of capital punishment in Florida."

(F. Baumgartner, "The Impact of Race, Gender, and Geography on Florida Executions," University of North Carolina at Chapel Hill, January 14, 2016.) See Arbitrariness and Race.

60 Minutes Profiles Life After Death Row for Exoneree Anthony Ray Hinton

Wed, 01/13/2016 - 12:26pm

On Sunday, January 10, 60 Minutes aired an interview with Anthony Ray Hinton, who was exonerated on April 3, 2015 after spending nearly 30 years on Alabama's death row. In the interview, Hinton described how issues of race permeated his case. Hinton told 60 Minutes correspondent Scott Pelley about a conversation he had with a police lieutenant after having been arrested: "I said, 'You got the wrong guy.' And he said, 'I don't care whether you did it or don't.' He said, 'But you gonna be convicted for it. And you know why?' I said, 'No.' He said, 'You got a white man. They gonna say you shot him. Gonna have a white D.A. We gonna have a white judge. You gonna have a white jury more than likely.' And he said, 'All of that spell conviction, conviction, conviction.' I said, 'Well, does it matter that I didn't do it?' He said, 'Not to me.'" Hinton went on to explain how he felt about the racial bias in his case: "I can't get over the fact that just because I was born black and someone that had the authority who happened to be white felt the need to send me to a cage and try to take my life for something that they knew that I didn't do." Bryan Stevenson, Hinton's attorney and the executive director of the Equal Justice Initiative, joined Hinton for the interview, and spoke about the systemic issues surrounding the case. "This isn't luck, this was a system, this was actually our justice system, it was our tax dollars who paid for the police officers who arrested Mr. Hinton. Our tax dollars that paid for the judge and the prosecutor that prosecuted him. That paid for the experts who got it wrong. That paid to keep him on death row for 30 years for a crime he didn't commit. This has nothing to do with luck. This has everything to do with the way we treat those who are vulnerable in our criminal justice system."

(S. Pelley, "Life After Death Row," 60 Minutes, January 10, 2016.) See Innocence and Race.

U.S. Supreme Court Strikes Down Florida's Death Sentencing Scheme

Tue, 01/12/2016 - 12:10pm

In an 8-1 decision in Hurst v. Florida released on January 12, the U.S. Supreme Court found Florida's capital sentencing scheme in violation of the 6th Amendment, which guarantees the right to trial by jury. "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death," Justice Sonia Sotomayor wrote in the opinion of the Court. The jury and judge in Hurst's case followed Florida's statutory sentencing procedure, which requires only an "advisory sentence" from a jury. Florida does not require the jury to specify the factual basis of its sentencing recommendation. The sentencing judge must give "great weight" to the jury's recommendation, but only the judge ever provides written reasons why a case is eligible for a death sentence. The Court based its decision largely on Ring v. Arizona, a 2002 decision in which it struck down Arizona's sentencing scheme because a judge, rather than a jury, determined the facts necessary to impose a death sentence. While Florida's procedure adds the advisory recommendation that Arizona's lacked, the Court found the distinction, "immaterial." "As with Timothy Ring, the maximum punishment Timothy Hurst could have received without any judge-made findings was life in prison without parole. As with Ring, a judge increased Hurst’s authorized punishment based on her own factfinding. In light of Ring, we hold that Hurst’s sentence violates the Sixth Amendment." 

Justice Alito dissented, citing past decisions upholding Florida's death penalty statute. Justice Breyer concurred with the Court's decision, but would find that the Eighth Amendment requires that a jury determine the actual sentence, not just the facts that make a person eligible for death.

(R. Barnes, "Supreme Court finds Florida’s capital punishment process unconstitutional," Washington Post, January 12, 2016). Read the Court's decision in Hurst v. Florida. See Sentencing and U.S. Supreme Court.

Connecticut Supreme Court Hears Prosecutors' Argument Seeking to Overturn Death Penalty Ban

Mon, 01/11/2016 - 11:39am

On January 7, the Connecticut Supreme Court heard arguments in State of Connecticut v. Russell Peeler, in which state prosecutors are seeking to overturn the court's 4-3 decision last summer declaring Connecticut's death penalty unconstitutional.  The court ruled in August in State v. Santiago that Connecticut's prospective legislative repeal of the death penalty, in combination with "the state’s near total moratorium on carrying out executions over the past fifty-five years," established that "capital punishment has become incompatible with contemporary standards of decency in Connecticut." If the court holds to that decision, the state's remaining death row prisoners would be resentenced to life without possibility of parole. One of the four justices who voted with the majority, Justice Flemming Norcott Jr., retired recently, changing the makeup of the court. Chief Justice Chase T. Rogers, who voted with the minority in the Santiago decision, worried that the appeal presents the possibility of a "slippery slope," saying, "Why shouldn't the court be concerned that every time there's a hotly contested 4-3 decision … that this isn't just going to become a numbers game, that the parties will then wait until somebody retires or leaves the court and raise the issue again?" Prosecutors argued that the court's decision, "eliminated the democratic process." Senior Assistant Public Defender Mark Rademacher, who argued on behalf of the death row inmates, said, "This is a unique decision and a unique problem far different than interpreting a statute, and the majority found that it was a fairly clear statement that the death penalty no longer comports with the standards of decency of Connecticut citizens as expressed through their elected representatives."

Justice Andrew J. McDonald - who joined the majority decision saying that Connecticut's death penalty violated its state constitution - commented to prosecutors during argument that "there is nothing that has transpired in either fact or legal ways" that has changed the basis for the court's decision in Santiago "other than your belief that it was wrong." Rademacher argued, "What the state is asking this court to do … is simply breathtaking. It is asking this court to overrule a long line of cases that have affirmed the court's authority as a constitutional matter to protect the citizens of this state against cruel and unusual punishment."

(A. Griffin, "Supreme Court Justices Hear Arguments On Repeal Of Connecticut Death Penalty Ban," Hartford Courant, January 7, 2016; A. Griffin, "Death Penalty Back Before State Supreme Court," Hartford Courant, January 7, 2016) See Recent Legislation and Connecticut.

Harvard Law Professor Chronicles 'The Death Penalty's Last Stand'

Fri, 01/08/2016 - 12:37pm

In a recent article in Slate, Harvard Law School Professor Charles Ogletree, the executive director of the university's Charles Hamilton Houston Institute for Race and Justice, says "the death penalty is collapsing under the weight of its own corruption and cruelty." He emphasizes the increasing isolation of capital punishment to a few outlier jurisdictions, particularly highlighting Caddo Parish, Louisiana. Caddo Parish received national attention when, shortly after the exoneration of Glenn Ford, who was wrongfully convicted and spent 30 years on death row, District Attorney Dale Cox said the state should "kill more people." Ogletree described the legacy of racial violence and intimidation in the parish, including that Caddo Parish, which has been responsible for 8 of Louisiana's 12 death sentences since 2010, was "the site of more lynchings of black men than all but one other county In America." Until 2011, a Confederate flag flew atop a monument to the Confederacy outside the entrance to the parish courthouse in Shreveport where jurors reported for duty. In 2015, a study (click image to enlarge) found that Caddo prosecutors struck prospective black jurors at triple the rate of other jurors. Ogletree spotlighted a number of questionable death sentences imposed on Caddo defendants who may have been innocent and framed, were intellectually disabled or mentally ill teenagers, or who suffered from serious brain damage and mental illness, and who were provided systemically deficient representation. "Caddo offers us a microcosm of what remains of the death penalty in America today," Ogletree says. 33 jurisdictions have abolished the death penalty or not carried out an execution in more than 9 years. Just six states performed executions in 2015, and three-quarters of the people who were executed last year raised serious questions about mental health or innocence. Death sentences were at a record low (49), and 14, he said, came from two states - Alabama and Florida - that allow non-unanimous jury recommendations of death. Ogletree concludes, "The death penalty in America today is the death penalty of Caddo Parish—a cruel relic of a bygone and more barbarous era. We don’t need it, and I welcome its demise."

(C. Ogletree, "The Death Penalty’s Last Stand," Slate, January 6, 2016.) See Arbitrariness, Race, and DPIC's 2015 Year End Report.

Prosecutor Says Change Needed if Wyoming Wants to Keep the Death Penalty

Tue, 01/05/2016 - 1:05pm

Natrona County, Wyoming District Attorney Mike Blonigen (pictured) recently called for a reconsideration of the state's death penalty after a federal judge overturned the death sentence of Dale Wayne Eaton, a decade after Blonigen obtained it in 2004. At the time U.S. District Judge Alan B. Johnson reversed Eaton's sentence in 2014, Eaton was the only person on Wyoming's death row. Judge Johnson ruled that Eaton had received ineffective representation, in part because of inadequate funding of the Wyoming Public Defender's Office. Wyoming Gov. Matt Mead requested that the state legislature appropriate $1 million over the next two years to pay for Eaton's defense and another $25,000 to study whether the state is adequately funding prosecutors and public defenders. However, Johnson subsequently barred Wyoming from conducting a new death penalty hearing when the state failed to timely appoint new lawyers for Eaton who were not affiliated with the public defender's office. Blonigen said the state legislature needs to take a serious look at the issue of capital punishment: "You've got to have the resources and have the commitment to it to carry through with it," he said. "I think the Legislature has to decide do we really want this or not. If we really want it, then we have to change some things." Wyoming has not carried out an execution since 1992, and has not sentenced anyone to death since Eaton was sentenced in 2004.

(B. Neary, "Casper prosecutor says Wyoming needs to reconsider death penalty," Associated Press, January 2, 2016; B. Neary, "Federal judge stays state death prosecution of Dale Eaton," Associated Press, December 22, 2015.) See New Voices and Costs.