Sentencing

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

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.

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

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."

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

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."

Missouri Likely to See Change After Historic High in Executions

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."

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

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." 

NEW VOICES: Why Prosecutors in Texas, Pennsylvania Are Seeking Death Penalty Less Often

Prosecutors across the country are seeking the death penalty less frequently and in recent interviews two district attorneys, one from Texas and one from Pennsylvania, have given some of their reasons why. Randall County, Texas District Attorney James Farren (pictured) told KFDA-TV in Amarillo that his experience handling one particularly lengthy and costly capital case has changed how he will make decisions in future cases that are eligible for the death penalty. He said that his office has spent, "conservatively...at least $400,000" on the prosecution of Brittany Holberg, who has been on death row since 1998. Farren said the costs are too high for taxpayers and "I do not want to subject them to this kind of thing any longer." While he said he still supports the death penalty, Farren predicted that, in the near future, the U.S. Supreme Court "likely will decide society has evolved to the point that it’s no longer appropriate." In an interview with the Reading EagleJohn T. Adams, District Attorney of Berks County, Pennsylvania, says that he rarely seeks the death penalty and is "just as happy with a life sentence as I am a death sentence." If defendantants are sentenced to life without parole, Adams says, "[t]hey will not be a threat to our community ever again. And frankly, community safety is the utmost of my concerns." Adams adds, "I think you will find throughout Pennsylvania that we are seeking [the death penalty] less and less, and I think that's good."

Despite Executions, Death Penalty is in Decline in the "New Georgia"

Although Georgia carried out 5 of the 28 executions in the U.S. in 2015, it imposed no new death sentences and a significantly changed legal landscape points to a "new Georgia" with the death penalty in decline. The Georgia legal publication, Daily Report, dubbed the decline in death sentences its "newsmaker of the year," and explored the reasons for the change. Jerry Word, the division director of the Georgia Capital Defender, said that with the Defender's early intervention initiative reaching out to prosecutors to present reasons to decapitalize a case, prosecutors agreed to drop the death penalty in all 29 of the cases his office handled this year. The only capital case that went to trial with the death penalty as an option was a case in which the defendant represented himself, and the jury handed down life without parole. In 2014, only one of the state's 19 potential capital cases ended in a death sentence and only one of the last 71 capital cases the capital defender has handled has resulted in a death verdict. Several factors have created the new landscape and contributed to the reduction in death sentences. Word said these include the cost of death penalty trials and the efforts by defense counsel to present prosecutors with mitigating evidence early in the process. But, he said, "I think the LWOP [life without parole] is the really big one. We've had that for six years now, but we've really just started seeing the impact in the last few years." Chuck Spahos, executive director of the Prosecuting Attorneys' Council of Georgia, agreed that life without parole had played a significant role: "I certainly think things changed dramatically when the Legislature gave us the life without parole option," he said. Similar factors have contributed to death penalty declines in historically active death penalty states like Texas and Virginia. Sara Totonchi, executive director of the Atlanta-based Southern Center for Human Rights, said "Georgia is in step with the national trend of declining use of the death penalty. The continued marginalization of the death penalty is not surprising given growing concerns about its implementation, particularly with regard to the potential of an innocent person being executed and the prevalence of botched executions as states experiment with lethal injection drugs."

DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015

On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press ReleaseView a video summarizing the report. (Click image to enlarge.)

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