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ARBITRARINESS: Getting a Death Sentence May Depend on the Budget of the County

Whether the death penalty will be sought in a murder may depend more on the budget of the county in which it is committed than on the severity of the crime, according to several prosecutors. A report by the Marshall Project found that the high costs of capital cases prevent some district attorneys from seeking the death penalty. “You have to be very responsible in selecting where you want to spend your money,” said Stephen Taylor, a prosecutor in Liberty County, Texas. “You never know how long a case is going to take.” One capital case can bankrupt a county: “I know now that if I file a capital murder case and don't seek the death penalty, the expense is much less,” said James Farren, the District Attorney of Randall County, Texas. “While I know that justice is not for sale, if I bankrupt the county, and we simply don't have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?” Prosecutors cited past cases in which counties had to drastically alter their budgets in order to pay for death penalty trials. In Jasper County, Texas, a county auditor said the budget shock of a death penalty case was as bad as a flood that destroyed roads and bridges. Seeking the death penalty in one case in Gray County, Texas, forced the county to raise taxes and suspend raises for employees. The defendant was sentenced to life without parole. When Mohave County, Arizona, prosecutor Greg McPhillips decided not to seek the death penalty in a case he thought was particularly heinous, he pointed to costs as the reason: “The County Attorney’s Office wants to do their part in helping the County meet its fiscal responsibilities in this time of economic crisis not only in our County but across the nation,” he said.

 

DPIC Releases Year End Report: Executions and Death Sentence Fall to Historic Lows

On December 18, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2014: Year End Report." In 2014, 35 people were executed, the fewest in 20 years. Death sentences dropped to their lowest level in the modern era of the death penalty, with 72 people sentenced to death, the smallest number in 40 years. Just seven states carried out executions, and three states (Texas, Missouri, and Florida) accounted for 80% of the executions. The number of states carrying out executions was the lowest in 25 years. Seven people were exonerated from death row this year, including three men in Ohio, who were cleared of all charges 39 years after their convictions, the longest time among all death row exonerees. There have now been 150 people exonerated from death row since 1973. “The relevancy of the death penalty in our criminal justice system is seriously in question when 43 out of our 50 states do not apply the ultimate sanction,” said Richard Dieter, DPIC’s Executive Director and the author of the report. “The U.S. will likely continue with some executions in the years ahead, but the rationale for such sporadic use is far from clear.” See DPIC's Press ReleaseView a video summarizing the report.

 

Pennsylvania Death Penalty Costs Estimated at $350 Million

In a series of articles analyzing Pennsylvania's death penalty, the Reading Eagle found that taxpayers have spent over $350 million on the death penalty over a period in which the state has carried out just three executions, all of inmates who dropped their appeals. Using data from a Maryland cost study, which concluded that death penalty cases cost $1.9 million more than similar cases in which the death penalty was not sought, the newspaper estimated that the cases of the 185 people on Pennsylvania's death row cost $351.5 million. The paper said the estimate was conservative because it did not include cases that were overturned, or cases where the prosecutor sought the death penalty but the jury returned another sentence. Pennsylvania legislators commissioned a cost study in 2011, but the report has not been issued. Senator Daylin Leach, one of the legislators who called for the state report, said he will reintroduce a bill to repeal the death penalty. Even supporters of the death penalty agreed that the costs are a problem: "Definitely, the death penalty extremely strains our resources," said Berks County District Attorney John Adams. Judge Thomas Parisi, also of Berks County, said he believed there was an astronomical cost difference between the average death penalty case and a life-sentence case.

 

Texas Judge Orders State to Reveal Execution Drug Supplier

On December 11 District Judge Darlene Byrne ruled that the source of Texas' lethal injection drugs is a matter of public record, and the state should release the information. Texas has been obtaining pentobarbital from an unnamed compounding pharmacy. The decision resulted from a suit filed earlier this year on behalf of death row inmates, two of whom have since been executed. Texas had been open about the source of its execution drugs until May, when Attorney General Greg Abbott decided that releasing the identity of the drug supplier could be a safety risk. Maurie Levin, one of the attorneys who filed the suit, said, "This is about the drugs, but it's also about open government." Similar suits have been filed in Oklahoma, Missouri, and Ohio, where drug suppliers are also shielded by secrecy policies. The Texas Department of Criminal Justice plans to appeal the decision.

 

Oklahoma Warden Called Recent Execution a "Bloody Mess"

Attorneys for several inmates in Oklahoma have asked a federal court to stay their executions and presented new accounts of the botched execution of Clayton Lockett (pictured) as evidence the state's execution procedure is unconstitutionally cruel. The recent filing included statements describing the execution from the warden, an attending paramedic, and a victims' services advocate who witnessed the execution. Warden Anita Trammell called the execution, "a bloody mess," and said, "I was kind of panicking. Thinking oh my God. He’s coming out of this. It’s not working.” Edith Shoals, a victims' services advocate for the Department of Corrections, witnessed the execution from an overflow room and said, “It was like a horror movie … [Lockett] kept trying to talk.” The paramedic who participated in the execution described the doctor's failed attempts to insert an IV, saying, "I don’t think he realized that he hit the artery and I remember saying you’ve got the artery. We’ve got blood everywhere." Lockett was pricked at least 16 times in attempts to insert the IV. The doctor declined to set a backup IV line, as called for in the execution protocol, explaining, "We had stuck this individual so many times, I didn’t want to try and do another line." Mike Oakley, a former general counsel for the Department of Corrections, said "political pressure" played a role in the selection of execution drugs. “[T]he attorney general’s office, being an elective office, was under a lot of pressure. The, the staff over there was under a lot of pressure to, to say, ‘Get it done,’ you know, and so, yeah, I, I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.”

 

POSSIBLE INNOCENCE: Arizona Court Dismisses Charges Against Former Death Row Inmate

Debra Jean MilkeOn December 11, an Arizona appeals court dismissed charges against Debra Jean Milke and barred retrial. Milke spent 22 years on death row for arranging the 1989 murder of her 4-year-old son. She was the first woman sentenced to death in Arizona since 1932. In 2013, the U.S. Court of Appeals for the 9th Circuit overturned Milke's conviction because the prosecution had withheld evidence about misconduct committed by their primary witness, Phoenix Detective Armando Saldate, who testified that Milke had confessed to the murder. Saldate had previously been implicated of lying under oath, among other misconduct. There was no recording of a confession, and Milke insisted she was innocent and had never confessed. In its ruling on Thursday, the state court said it granted Milke's request for dismissal, “because of the state’s severe, egregious prosecutorial misconduct in failing to disclose impeachment evidence.” Maricopa County prosecutors said they plan to appeal the decision to the Arizona Supreme Court. The two men who were convicted of carrying out the murder are still on death row.

 

Legal Experts Urge Plea Deal in Boston Bombing Case

In an op-ed for the Boston Globe, three legal experts, including retired federal judge and Harvard Law School professor Nancy Gertner (pictured), wrote about the benefits of allowing accused Boston Marathon bomber Dzokhar Tsarnaev to plead guilty in exchange for a sentence of life without parole. If Tsarnaev is convicted, they write, the penalty phase of his capital trial will put all attention on Tsarnaev's life and background, rather than on the victims of the bombing. "Tsarnaev’s lawyers are duty-bound to bring every kind of mitigation before the jury; the judge is bound by law to let them do so; but should the survivors and the families of those who were murdered have to suffer through it?," they ask. Rather than sentencing Tsarnaev to death and accepting decades of appeals and attention, the authors suggest, "he can be sentenced to spend the rest of his life in isolation, never to be heard from again, in a supermax cell in a maximum security federal prison built especially for those prisoners who are deemed the most dangerous, as has been the case with Unabomber Ted Kaczynski, 9/11 conspirator Zacharias Moussaoui, and Richard Reid, the shoebomber." The op-ed concludes, "This community’s response to the Marathon attacks set an example of courage and unity for the nation and the world. Now we’re reaching the last chapter. That chapter doesn’t have to be one of bitterness, division, and re-traumatization...Let’s write a last chapter that guarantees just punishment for Tsarnaev while putting the victims and the community at the center of the legal system’s concerns." Read the full op-ed below.

 

LAW REVIEWS: The "Unreliability Principle" in Death Sentencing

A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the "unreliability principle" established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, "if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied." That is, certain classes of defendants can be exempt from the death penalty because juries cannot be relied upon to adequately assess the mitigating factors. This principle applied to both intellectually disabled defendants in Atkins and juvenile defendants in Roper. Sundby argues that the principle should be extended to mentally ill defendants as well. Six factors that the court considered in Atkins and Roper are identified, and subequently applied to defendants with mental illnesses. Among the factors identified are the defendant's impared ability to assist defense attorneys, the defendant's impaired ability to serve as a witness, and the defendant's distorted decision-making skills.

 

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