Sentencing

Florida Supreme Court Orders Re-Sentencing, Suggesting Hurst May Affect Many Florida Cases

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."

OUTLIER COUNTIES: Los Angeles County Has Nation's Largest—And Still Expanding—Death Row

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.)

OUTLIER COUNTIES: Non-Unanimous Jury Verdicts Highlight Systemic Flaws in Pinellas County, Florida Death Penalty

Pinellas County, Florida ranks among the 2% of counties responsible for more than half of all prisoners on death rows across the United States and among the 2% of counties responsible for more than half of all executions conducted in this country since 1977. The five death sentences imposed in Pinellas between 2010 and 2015 also place it, along with three other Florida counties, among the 16 U.S. counties with the highest number of new death sentences in the country. One major reason for Pinellas' status is the high number of death sentences it has imposed after juries returned non-unanimous sentencing recommendations, an outlier practice that the Florida Supreme Court recently declared unconstitutional. All six of the Pinellas death sentences the Florida Supreme Court reviewed on direct appeal from 2006-2015 involved non-unanimous juries. Only two of those cases garnered the 10 juror votes in favor of death that would have permitted a death verdict to be imposed under 2016 amendments to Florida law that attempted to address another constitutional flaw in the statute. The non-unanimity provisions facilitated the extremely harsh use of the death penalty by Pinellas' prosecutors against defendants with significant mental health problems. Five of these 6 death sentences were directed at defendants with serious mental illness, brain damage, or intellectual impairment; and one was directed as an emotionally disturbed defendant who -- at only few months past 18 years old at the time of the offense -- was barely constitutionally eligible for the death penalty. According to a report by Harvard University's Fair Punishment Project, none of the other 15 outlier counties who have produced the most death sentences in the U.S. since 2010 imposed it so disproportionately against mentally impaired defendants. This prosecutorial overreaching occurred against a backdrop of racial bias and bad defense lawyering. In the cases mentioned above, every defense attorney presented a day or less of mitigating evidence at trial. The trial judge sentenced Richard Todd Robard to death after a 7-5 jury vote; a 6-6 vote would have spared his life. But Robard's lawyer, Richard Watts, decided not to present evidence of his client's brain damage and mental health problems because he didn't think the jury would be swayed by "brain abnormalities." Amid other evidence of racially imbalanced law enforcement practices in the county, 60% of the defendants sentenced to death since 2010 were black and 67% of the victims in cases in which the death penalty was returned were white.

Supreme Court Stays Execution of Tommy Arthur in Alabama

The U.S. Supreme Court has stayed the execution of Tommy Arthur, who was scheduled to be executed in Alabama at 6:00 p.m. Central Time on November 3. Around 10:30 p.m. Eastern, the Court first issued a temporary stay of execution through Circuit Justice Clarence Thomas "pending further order" of the Court. Anticipating a second ruling by the Court, Alabama continued preparations for the execution. Then, just before midnight in Washington, the Court issued a full stay to permit it to consider a petition for writ of certiorari Arthur had filed earlier in the day. Arthur's lawyers had filed two stay applications and petitions for writs of certiorari. One petition sought review of the Alabama Supreme Court's summary dismissal of his challenge to the constitutionality of Alabama's death penalty statute under the Supreme Court's January 2016 decision in Hurst v. Florida. Hurst struck down Florida's death penalty statute because it required a judge, rather than a jury, to find critical facts that were a prerequisite to imposing the death penalty, and Arthur had argued that Alabama's statute suffered from the same defect. The other petition sought review of the denial of Arthur's lethal-injection challenge by a divided 2-1 panel of the U.S. Court of Appeals for the Eleventh Circuit. In its opinion, that court had ruled that Arthur had not met the burden imposed by the Supreme Court's 2015 decision in Glossip v. Gross of showing that an alternative method of execution was available to Alabama because the firing squad -- his proposed alternative -- was not "readily available" under Alabama law. The dissent wrote: "By misreading an Alabama statute, the Majority creates a conflict between the claim and state law. The Majority then resolves that faux conflict in favor of state law, taking the unprecedented step of ascribing to states the power to legislatively foreclose constitutional relief. These missteps nullify countless prisoners’ Eighth Amendment right to a humane execution." The Supreme Court granted Mr. Arthur's stay application in the lethal-injection case. Four Justices voted to stay the execution, with Chief Justice Roberts providing the fifth vote "as a courtesy." Justices Thomas and Alito dissented. Without the time constraints imposed by the death warrant, the Justices can now consider whether to grant review in the case. This was the seventh time Mr. Arthur's execution has been stayed.

Florida Supreme Court Strikes Down State's Capital Sentencing Statute, Requires Jury Unanimity Before Imposing Death

The Florida Supreme Court has declared unconstitutional the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendation for death. In two rulings issued October 14 the court held that juries must unanimously find all facts necessary to impose a death sentence, including the existence of any aggravating factor relied upon as a reason to impose the death penalty, whether the aggravating factors in and of themselves provide sufficient grounds for imposing the death penalty, and whether the aggravating factors outweigh the mitigating circumstances (reasons for life) presented by the defense. In the first case, Timothy Lee Hurst v. State of Florida, the court vacated Hurst's death sentence imposed and remanded his case for a new sentencing hearing. The second decision, Larry Darnell Perry v. State of Florida, struck down the Florida legislature's March 2016 revision of the state’s capital sentencing statute because it does not require a unanimous jury recommendation of death before the trial judge can consider imposing a death sentence. Hurst is the same defendant whose appeal reached the U.S. Supreme Court earlier this year, resulting in an 8-1 decision declaring that the state's prior capital sentencing statute violated the 6th Amendment right to a jury trial by reserving for the judge, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. The Court specifically held that the statute impermissibly denied Hurst a jury finding of aggravating circumstances that could make him eligible for the death penalty. In response to the Court's decision, the Florida legislature amended the statute to require juries to unanimously find at least one aggravating circumstance, but allowed the jury to recommend a death sentence if at least 10 of 12 jurors agreed. The court’s decision in Hurst made clear that the statute violated Florida state constitutional provisions requiring unanimous jury verdicts, as well as federal constitutional law. In Perry, the court struck down the amended death penalty law, saying the statute "cannot be applied constitutionally to pending prosecutions because the Act does not require unanimity in the jury’s final recommendation as to whether the defendant should be sentenced to death." While the decision in Hurst says that defendants sentenced to death under the unconstitutional sentencing procedures are not entitled to have their sentences automatically reduced to life in prison, it leaves unclear exactly what will happen in the cases of the approximately 400 people on the state's death row.

U.S. Supreme Court Denies Review of Arizona Case That Could Overturn 25 Death Sentences

In a decision that could affect an estimated 25 Arizona death penalty cases, the U.S. Supreme Court has denied Arizona's request to review a federal appeals court decision declaring unconstitutional an evidentiary rule that limited the types of mitigating evidence capital defendants could present in their cases. The ruling in Ryan v. McKinney let stand a 6-5 decision of the U.S. Court of Appeals for the Ninth Circuit in December 2015 that had reversed James McKinney's 1993 death sentence because the state's so-called "causal nexus" rule unconstitutionally excluded evidence about McKinney's abusive childhood and post-traumatic stress disorder. The Court's ruling could have implications for many of the prisoners on Arizona's death row. The causal nexus rule, which required that mitigating evidence be directly linked to the crime before it could be considered as grounds to spare a defendant's life, had been place in Arizona from the late 1980s until 2005. In 1978, the Supreme Court ruled in Lockett v. Ohio that states could not bar defendants from presenting mitigating evidence relating to their character, background, or record or the circumstances of the case as reasons to impose a life sentence. Four years later, in Eddings v. Oklahoma, it held that states could not require that evidence excuse the murder before it could be considered mitigating. Then, in 2004, in Tennard v. Dretke, it reiterated that any requirement that mitigating evidence have a direct causal link to the offense violated the Eighth Amendment. By denying review, the Supreme Court paved the way for other prisoners whose sentencing was affected by the causal nexus rule to challenge their death sentences. In a dissent to the Ninth Circuit decision, Judge Carlos Bea wrote that the majority decision, "calls into question every single death sentence imposed in Arizona between 1989 and 2005." McKinney's case will return to state court within 120 days for further proceedings, according to the Arizona Attorney General's Office. His re-sentencing must now be done by a jury because the U.S. Supreme Court 2002 decision in Ring v. Arizona ended the state's practice of judges imposing death sentences.

Wrongful Capital Convictions May Be More Likely in Cases of Judicial Override, Non-Unanimous Death Verdicts

New data suggests that states that capital sentencing statutes that permit judges to impose death sentences by overriding jury recommendations for life or after juries have returned non-unanimous recommendations for death may increase the risk of wrongful executions. In an article in the Yale Law Journal Forum, lawyers Patrick Mulvaney and Katherine Chamblee of the Southern Center for Human Rights report that in Alabama, the only state that still permits judges to override a jury's recommendation for life, override cases account for less than a quarter of death sentences but half of death row exonerations. They say that this may be a result of "residual doubt" among jurors, which they describe as “a state of mind that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty,’” often resulting from weaker or more suspect evidence of guilt. Research has shown that when juror have such doubts, they are substantially more likely to vote for a life, as did jurors in the cases of Alabama death row exonerees Larry Randal Padgett (9-3 jury vote for life) and Daniel Wade Moore (pictured, left, 8-4 vote for life) and current death row prisoner Shonelle Jackson (unanimous jury life recommendation). Non-unanimous jury recommendations for death also appear to pose similar problems. Of Alabama's six death row exonerations, 83% involved either judicial override (3 cases) or non-unanimous jury votes for death (2 cases, including Anthony Ray Hinton, pictured, right). Data from Florida reveals a similar pattern: of the 20 death row exonerations for which information on the jury vote is available, 90% involved a non-unanimous recommendation for death, including three judicial overrides of jury recommendations for life. In 1984, U.S. Supreme Court Justice John Paul Stevens raised concerns about judicial override and wrongful convictions that are now supported by data: “It may well be that the jury was sufficiently convinced of petitioner’s guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Statutes permitting judicial override or non-unanimous jury recommendations for death have been under increased scrutiny since the U.S. Supreme Court's decision in Hurst v. Florida in January 2016. Hurst struck down Florida's sentencing statute saying, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Florida's legislature responded by ending judicial override and requiring juries to unanimously find aggravating circumstances in capital cases, though they may still make non-unanimous sentencing recommendations. The Delaware Supreme Court struck down its sentencing statute in light of Hurst in August 2016, leaving Florida and Alabama as the only states that still permit non-unanimous jury receommendations of death.  

Delaware Attorney General Will Not Appeal Decision Striking Down Death Penalty Statute

Delaware Attorney General Matt Denn (pictured) announced on August 15 that his office will not appeal the Delaware Supreme Court's August 2 decision in Benjamin Rauf v. State of Delaware, which struck down the state's death penalty statute. In Rauf, the court found that Delaware's capital sentencing scheme violated the Sixth Amendment, as interpreted by the U.S. Supreme Court in Hurst v. Florida, by granting judges, rather than juries, the ultimate power to decide whether the prosecution had proven all facts necessary to impose the death penalty. Delaware's statute had not required a unanimous jury determination of all aggravating circumstances that were considered in sentencing a defendant to death or a unanimous jury finding that those reasons for death outweighed mitigating circumstances. The Rauf decision intensifies the national spotlight on Alabama and Florida as the only states that still permit judges to impose death sentences after non-unanimous jury recommendations for death and on Alabama as the only remaining state to permit a judge to override a jury's life verdict. The statement of the attorney general's office said Denn "has concluded that even if the United States Supreme Court reversed the opinion on Federal Constitutional grounds, ... the Delaware Supreme Court would ultimately invalidate Delaware’s current death penalty statute based on the Constitution of the State of Delaware." Litigating those issues, he said, "would likely take years" and "would likely not only bring about the same result, but would also deny the families of victims sentencing finality." The statement indicated that state prosecutors would challenge the application of Rauf to the thirteen prisoners currently on Delaware's death row, leaving their status uncertain. For future cases, legislative action is now the only route to reinstating the death penalty in Delaware. Such action seems unlikely, given that it must be approved by both houses of the legislature and by the Governor. However, death penalty abolition bills passed the state Senate in 2013 and 2015, and narrowly failed in the House earlier this year, and Governor Jack Markell has expressed support for abolishing the death penalty and "applaud[ed] the Supreme Court's finding that the state's death penalty law is unconstitutional."

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