Sentencing

Death Penalty Support Continues Its Steady Decline in Nation's Leading Execution County

Just 27% of Houston-area residents prefer the death penalty over life sentences for those convicted of first-degree murder, according to a new report by the Kinder Institute for Urban Research at Rice University. Harris County, the largest county in the Houston metropolitan area, "earned its reputation as the 'death penalty capital of America,'” the report says, "having executed more people since 1976 ... than any other county in the nation." At its peak, Harris County sentenced 44 people to death during a three-year period (1994-1996). However, declining public support for capital punishment has contributed to a drop in the number of death sentences the county imposes. Over the last three years, five people were sentenced to death in Harris County, with no new death sentences imposed in 2015. Texas is experiencing a similar statewide trend: while the state imposed a high of 48 death sentences in 1999, it imposed only two new death sentences in 2015. The percentage of Houston residents who consider the death penalty the most appropriate punishment for murder has "dropped steadily," the report says, including a decline of 12 percentage points since 2008. It attributes the erosion of support for the death penalty to "recent revelations of discriminatory sentencing, innocent persons being freed from Death Row just before their scheduled executions, and botched lethal injections," along with the comparatively greater costs of seeking the death penalty, rather than life imprisonment, which the report says "have risen dramatically." (Click image to enlarge.)

Florida Court to Hear Argument on Impact of U.S. Supreme Court Ruling Declaring Death Penalty Process Unconstitutional

On May 5, the Florida Supreme Court will hear oral argument in the case of Timothy Hurst, whose death sentence was overturned in the U.S. Supreme Court's decision Hurst v. FloridaThe state court must determine whether the high court's ruling, which struck down Florida's sentencing scheme, entitles Hurst to a new sentencing hearing, reduces his sentence to life without parole, or requires some other outcome. The case may also decide how the Hurst ruling will affect the nearly 400 people on Florida's death row. Hurst's attorneys say he should have his death sentence reduced because, "persons previously sentenced to death for a capital felony are entitled to have their now-unconstitutional death sentences replaced by sentences of life without parole." That position received support in an amicus brief filed by three former chief justices of the Florida Supreme Court, a former state representative, a former prosecutor, and past presidents of the American Bar Association. The justice and legal experts argue that  Hurst "held Florida's death penalty statute unconstitutional," and that in such circumstances Florida law requires all death sentences imposed under the statute to be reduced to life without parole. The state attorney general's office has argued that state law requires blanket imposition of new sentences only if the death penalty itself is declared unconstitutional, and that Hurst only declared Florida's method of imposing the death penalty unconstitutional. Florida has the nation's second-largest death row, with 396 people as of January 1, 2016, before the state legislature rewrote the sentencing procedure to require a unanimous jury finding of at least one aggravating circumstance, and at least a 10-2 vote to impose a death sentence.

U.S. Supreme Court Orders Alabama to Reconsider Constitutionality of Its Death Penalty Sentencing Procedure

The U.S. Supreme Court has vacated a decision of the Alabama Court of Criminal Appeals upholding a death sentence imposed on Alabama death row prisoner Bart Johnson, and has directed the state court to reconsider the constitutionality of Alabama's death-sentencing procedures. Johnson, represented by lawyers from the Equal Justice Initiative (EJI), had challenged the constitutionality of his death sentence, which was imposed by a trial judge after a nonunanimous jury vote of 10-2 recommending a death sentence, as violating the Supreme Court's decision earlier this year in Hurst v. Florida. According to Johnson's Supreme Court pleadings, the trial court had instructed the jury that it did not need to unanimously agree to any particular fact that would have made Johnson eligible for the death penalty, nor did it have to identify for the court any specific aggravating factors that it found to be present in the case. Hurst ruled that Florida's capital sentencing procedures, which permitted critical factual findings necessary to impose a death sentence to be made by the trial judge, rather than the jury, violated the Sixth Amendment right to a jury trial. Johnson's lawyers argued that Alabama's sentencing scheme suffers from the same constitutional defect and that, "[i]n Bart Johnson's case, like in Hurst, the judge imposed the death penalty based on finding two aggravating factors that were not clearly found by the jury." Bryan Stevenson, EJI's executive director, said that the Court's ruling could have systemic implications: "This ruling implicates all [capital] cases in Alabama. We have argued that Alabama's statute no longer conforms to current constitutional requirements. The Court's ruling today supports that view." In March, an Alabama Circuit Judge barred the death penalty in four cases on the grounds that Alabama's sentencing scheme was unconstitutional. The Supreme Court's decision to order reconsideration of Johnson's case could also affect a court challenge currently pending in the Delaware Supreme Court over the constitutionality of its death penalty statute, which employs similar sentencing procedures. Likewise, defense lawyers in Nebraska have argued that the death penalty statute in that state — which has been repealed by the legislature pending the outcome of a ballot initiative in November — impermissibly vests key fact-finding authority in the trial judge, rather than the jury. 

Florida Judge Sentences Man to Death Under Sentencing Law That Supreme Court Ruled Unconstitutional

A Florida trial judge in St. Lucie County sentenced Eriese Tisdale to death on April 29 for the killing of a sheriff's sergeant, relying on sentencing procedures from the version of Florida's death penalty law that the U.S. Supreme Court declared unconstitutional in Hurst v. Florida. The jury in Tisdale's case considered the evidence in the penalty phase of Tisdale's trial under the old Florida law, voting 9-3 to recommend a death sentence without specifying the aggravating factors that would make Tisdale eligible for the death penalty. The Supreme Court struck down Florida's sentencing procedure in Hurst because a judge, rather than a jury, made the factual determination of aggravating circumstances that were necessary to impose a death sentence. In response to Hurst, Florida enacted a new law, which went into effect March 7, requiring juries to make unanimous determinations of aggravating factors, and preconditioning any death sentence upon a jury vote of at least 10-2 vote in favor of death. The statute declares "If fewer than 10 jurors determine that the defendant should be sentenced to death, the jury's recommendation to the court shall be a sentence of life imprisonment without the possibility of parole." In those circumstances, the law states, "the court shall impose the recommended sentence." Tisdale's penalty phase was tried in October 2015, before the Supreme Court declared the sentencing procedures unconstitutional, and the jury's 9-3 recommendation for death came before the new law adopted the 10-2 requirement. His lawyers argued that he could not be sentenced to death because the old procedures were unconstitutional and the jury vote did not qualify as a death recommendation under the new law. But a St. Lucie County judge ruled that the jury's unanimous vote to convict Tisdale for the murder of a law enforcement official amounted to a unanimous finding of an aggravating circumstance, accepted the jury's 9-3 death recommendation, and sentenced Tisdale to death. Tisdale is the first person sentenced to death in Florida since the new law went into effect.

Florida Legislature Passes Bill Requiring Agreement of 10 Jurors Before Judge May Impose Death Sentence

UPDATE: Gov. Rick Scott signed the bill into law on March 7. Previously: The Florida legislature passed a bill on March 3 to restructure its death penalty statute in response to the U.S. Supreme Court's ruling in Hurst v. Florida, which declared the state's death penalty procedures unconstitutional. The bill modifies Florida's practice of permitting judges to impose death sentences without the unanimous agreement of jurors by requiring that at least ten jurors recommend death before the judge may impose a death penalty. It also directly addresses Hurst by requiring that jurors unanimously find any aggravating circumstances that the prosecution seeks to prove to make the defendant eligible for the death penalty. Previously, Florida judges made the determination whether the prosecution had proven aggravating circumstances that made the defendant eligible for the death penalty, and the statute permitted the judge to impose death based upon a simple majority recommendation or, in certain circumstances, when the jury had recommended life imprisonment. The new 10-2 requirement matches the standard applied in Alabama. Along with Delaware - which permits the court to impose death after a simple majority recommendation by the jury - these states stand alone in the country in allowing a death sentence after a jury's non-unanimous sentencing recommendation. Delaware and Alabama still permit judicial override. Delaware's system is currently under review by that state's highest court, and on March 3, an Alabama circuit court judge declared that state's sentencing procedure unconstitutional.

Alabama Judge Rules Capital Sentencing Scheme Unconstitutional

Jefferson County, Alabama Circuit Judge Tracie Todd (pictured) ruled on March 3 that Alabama's capital sentencing procedure violates the U.S. Constitution. Judge Todd barred the death penalty for four capital murder defendants, saying that Alabama's use of judicial override violates the Sixth Amendment. Under Alabama's system, at least 10 jurors must agree in order to recommend a death sentence, but a judge can override the jury's recommendation and impose death even if the jury recommended a life sentence. Because of this practice, Judge Todd said, "Alabama has become a clear outlier." She said the death penalty, "is being imposed in a wholly unconstitutional manner." In reading her ruling from the bench, the judge noted that Alabama has executed more defendants than states five times its size and questioned whether the partisan election of judges created a danger of judges imposing the death penalty due to political pressure. A 2011 report by the Equal Justice Initiative documented the effects of Alabama judicial overrides of jury life recommendations. More recently, a study by the Charles Hamilton Houston Institute for Law and Justice at Harvard found that more than three-quarters of the death sentences imposed in Alabama in the past 5 years involved non-unanimous juries. Alabama, Delaware, and Florida are the only states that permit a judge to impose the death penalty after the jury has not unanimously recommended death. 

Delaware Supreme Court to Consider Constitutionality of State's Death Penalty Law

Delaware public defenders have filed a brief in the Delaware Supreme Court arguing that the state's death sentencing procedures are unconstitutional. In their brief, the defenders describe "multiple constitutional problems" that they say "require Delaware’s death penalty scheme to be substantially restructured." These include several procedures that they say are unconstitutional under the U.S. Supreme Court's recent 8-1 decision in Hurst v. Florida. Delaware allows juries to render non-unanimous advisory sentences on the question of life or death, but also requires judges to make findings about the relative weight of aggravating and mitigating circumstances. The Hurst decision "requires a jury, not a judge, to find each fact necessary to impose a sentence of death." The filing argues that in a several states, the highest courts and legislatures have acknowledged that the Sixth Amendment also "requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each." The defenders' pleading squarely challenges the constitutionality of allowing a death sentence based upon a non-unanimous jury recommendation. Delaware, Alabama, and Florida are the only states that allow a judge to override a jury's sentencing recommendation and impose a death sentence when the jury has recommended life, and the only states that permit a judge to impose the death penalty after a non-unanimous jury recommendation for death. But following the Hurst decision, Florida has no valid procedures in place to pursue capital sentencing. The defenders argue that this demonstrates "a nationwide consensus against non-unanimous jury verdicts in capital cases. No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous. That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality." Delaware prosecutors have 30 days to respond to the defense arguments. All death penalty proceedings in Delaware remain on hold pending the state court's resolution of this issue.

Wake County, North Carolina Jury Hands Down Life Sentence in 6th Consecutive Capital Trial

Wake County North Carolina jury voted on February 22 to sentence capital defendant Travion Devonte Smith to life without parole, making Smith's case the sixth consecutive Wake County death penalty trial to end with a life sentence. Though Wake County was among the 2% of counties responsible for a majority of inmates on U.S. death rows as of 2013, the county has not produced any new death sentences since 2007. District Attorney Lorrin Freeman said that her office pursued the death penalty in Smith's case because of "the brutality of this murder." Yet the jury needed just one hour to conclude that the 38 mitigating factors offered by the defense - including Smith's troubled upbringing, abandonment by his mother, and lack of access to mental health treatment he had been diagnosed as needing - outweighed the two aggravating factors the prosecution presented. Defense attorney Jonathon Broun also argued to the jury that Smith's actions had been influenced by a charismatic, older and more culpable co-defendant, Ronald Anthony, and that Smith was "not even the worst of the worst when it comes to this tragic and heartbreaking crime." Prosecutors had permitted Anthony to plead guilty to first-degree murder in 2015 to avoid the death penalty. Freeman indicated that the jury verdicts in recent Wake County capital cases may be a signal for her office to reconsider pursuing the death penalty. The jury verdicts reflect larger national trends; in 2015, just 49 people were sentenced to death across the United States, a 40-year low that represents an 84% drop from the peak of 315 death sentences in 1996. Broun said, "We can punish people harshly and seriously for first-degree murder without using the death penalty."

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