Arbitrariness

Death Penalty Disproportionately Imposed by, Increasingly Isolated to, Small Number of Counties

(Click image to enlarge) The Atlantic reports that death sentences are heavily concentrated in a small number of heavy-use counties. According to DePaul University law professor Robert J. Smith, "1 percent of counties accounts for roughly 44 percent of all death sentences" since the reinstatement of the death penalty in 1976. Death-sentencing rates in those counties are not a product of their population or murder rates, Smith points out. For example, from 2004 to 2009, "Miami-Dade County (Florida), which has a population of approximately 2.5 million, only sentenced four people to death, whereas Oklahoma County, which has a population of approximately 750,000, sentenced eighteen people to death." DPIC's 2013 report, "The 2% Death Penalty," found that, "Houston had 8 percent more murders than Dallas, but 324 percent more death row inmates; 15 percent more murders than San Antonio, but 430 percent more death row inmates." The county disparities come from prosecutorial discretion, which allows local prosecutors to determine when to seek the death penalty. In some counties, Washington Post reporter Radley Balko reported, "a toxic culture of death and invincibility" values convictions and death sentences above all else. In 2007, Orleans Parish (Louisiana) Assistant District Attorney James Williams said, "There was no thrill for me unless there was a chance for the death penalty."

Sentence Reversal, Exoneration, and Natural Death More Likely Than Execution For Pennsylvania Death Row Inmates

(Click on image to enlarge). According to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions.  A Reading Eagle analysis of BJS data from 1973 through 2013 shows that the Commonwealth has executed fewer than 1% of all death-sentenced defendants since 1973, with execution the least likely of 5 possible outcomes for people sentenced to die. Nationally, 16% of those sentenced to death have been executed. The most likely outcome for defendants sentenced to death in Pennsylvania is that their conviction or death sentence will be reversed, as is also the case nationally. However, in Pennsylvania exoneration and death by natural causes or suicide are also more common than execution. Since 1994, when death sentences peaked in Pennsylvania, the average number of removals from death row per year has doubled. The Reading Eagle reports that homicides across the state fell to a ten-year low in 2013, a period in which Pennsylvania carried out no executions. Three years ago, the Pennsylvania state legislature ordered a task force to study the state's problems in applying capital punishment, including costs, fairness in sentencing, and quality of representation. That report is expected later this year. Governor Tom Wolf has halted all executions in the state at least until the report is issued and problems are addressed.  Recent polls indicate that a majority of Pennsylvanian's now favor some form of a life sentence over the death penalty.

FBI Acknowledges Flawed Forensic Testimony Affected At Least 32 Death Penalty Cases

(Click on image to enlarge). The Federal Bureau of Investigation has formally acknowledged that examiners from the FBI Laboratory's microscopic hair comparison unit for decades provided flawed forensic testimony purportedly matching crime scene hair evidence to the hair of defendants charged with those crimes.  As part of an ongoing review of inaccurate forensic evidence, the FBI admitted that, In the 268 trials examined so far, its forensic experts systematically overstated the certainty of matches between crime scene hair evidence and defendants' hair.  That flawed testimony favored prosecutors more than 95% of the time.  The FBI admitted providing inaccurate expert testimony in 32 capital trials in which defendants were sentenced to death, including 10 cases from Florida and 5 each from Pennsylvania and Texas.  9 of the defendants -- including all 5 from Texas -- have since been executed. Studies have shown that inaccurate forensic evidence is frequently present in innocence cases -- and improper hair comparison testimony may already have contributed to at least one wrongful execution.  Senator Richard Blumenthal, a former prosecutor, said, “These findings are appalling and chilling in their indictment of our criminal justice system, not only for potentially innocent defendants who have been wrongly imprisoned and even executed, but for prosecutors who have relied on fabricated and false evidence despite their intentions to faithfully enforce the law.”

EDITORIALS: New York Times Sees "Alarming" Link Between Official Misconduct and Death Penalty Mistakes

In an editorial on April 13, the New York Times described the death penalty as "cruel, immoral, and ineffective at reducing crime" and called it "so riddled with error that no civilized nation should tolerate its use."  The Times described how prosecutorial misconduct and an "all-too-common mind-set to win at all costs" played a substantial role in the convictions of many of the 152 innocent men and women who have been exonerated after beingly wrongly sent to death row and had contributed to the execution of at least two death-row inmates who almost certainly were innocent. "Innocent people get convicted for many reasons, including bad lawyering, mistaken identifications and false confessions made under duress," the editorial said. "But as advances in DNA analysis have accelerated the pace of exonerations, it has also become clear that prosecutorial misconduct is at the heart of an alarming number of these cases." The Times noted that "In the past year alone, nine people who had been sentenced to death were released — and in all but one case, prosecutors’ wrongdoing played a key role."  Read full editorial below.

1 County, 2 Prosecutors Responsible for 3/4 of Recent Louisiana Death Sentences, Amid Charges of Prosecutorial Misconduct

Of the 12 death sentences handed down in Louisiana in the last 5 years, 8 have come from Caddo Parish. Caddo is also among the 2% of U.S. counties responsible for 56% of people on death row. With a population of just 257,000, Caddo Parish has sent 16 people to death row, the second highest of any parish in Louisiana. Two prosecutors, one of whom is under investigation for prosecutorial misconduct, are responsible for 6 of the recent death sentences. Hugo Holland, who handled two cases that resulted in death sentences in the last five years, is being investigated by the Disciplinary Board of the state's bar association for failing to turn over evidence favorable to a defendant being tried for the murder of a prison guard. That defendant's death sentence was overturned in 2014. Prosecutor Dale Cox, who obtained four of Caddo's recent death sentences, has said he believes death row inmates spend too long awaiting execution, but waited 10 months to sign off on the release of Glenn Ford after evidence of Ford's innocence was uncovered. Ford was convicted in Caddo Parish and spent 30 years on death row before his exoneration. (Pictured: Caddo County Courthouse, 2010.)

LAW REVIEW: "The American Death Penalty and the (In)Visibility of Race"

In a new article for the University of Chicago Law Review, Professors Carol S. Steiker (left) of the University of Texas School of Law and Jordan M. Steiker (right) of Harvard Law School examine the racial history of the American death penalty and what they describe as the U.S. Supreme Court's "deafening silence" on the subject of race and capital punishment. They assert that the story of the death penalty "cannot be told without detailed attention to race."  The Steikers' article recounts the role of race in the death penalty since the early days of the United States, including the vastly disproportionate use of capital punishment against free and enslaved blacks in the antebellum South and describes the racial and civil rights context in which the constitutional challenges to the death penalty in the 1960s and 1970s were pursued. The authors contrast the "salience of race" in American capital punishment law and practice through the civil rights era with the "relative invisibility [of race] in the judicial opinions issued in the foundational cases of the modern era."

States Struggle with Determinations of Competency to Be Executed

A recent article in Mother Jones examines lingering questions in the determination of which inmates are exempt from execution because of mental incompetency. In 1986, the U.S. Supreme Court ruled in Ford v. Wainwright that a person could not be executed if he or she was "unaware of the punishment they're about to suffer and why they are to suffer it." The 2007 ruling in Panetti v. Quarterman updated that decision, with Justice Anthony Kennedy writing, "A prisoner's awareness of the State's rationale for an execution is not the same as a rational understanding of it." Scott Panetti (pictured), the inmate involved in the 2007 case, knew that the state of Texas planned to execute him for the murder of his in-laws, but also sincerely believed that he was at the center of a struggle between God and Satan and was being executed to stop him from preaching the Gospel. Even after the case with his name was decided, Panetti remained on death row, and the Texas courts found him competent to be executed based upon the testimony of a single psychiatrist who claimed Panetti was faking his mental illness. Panetti came within hours of execution on December 3, 2014, before the U.S. Court of Appeals for the 5th Circuit issued a stay. In Missouri, Cecil Clayton -- a brain-damaged man with an IQ of 71 -- was executed on March 17, 2015 without a hearing to determine his competency. By contrast, a recent mental competency hearing for Indiana inmate Michael Overstreet included four days of testimony from 13 witnesses and nearly 1,300 pages of medical records. In a 137-page opinion, the state judge concluded, "Delusions or other psychotic symptoms cannot simply be discounted because a petitioner has a cognitive awareness of his circumstances." Indiana's Attorney General said that the decision adhered so well to the Panetti ruling that there was nothing for the state to appeal.

STUDIES: Most Likely Outcome of Death Sentence Is That It Will Be Reversed

A new study from researchers at the University of North Carolina at Chapel Hill finds that the most likely outcome for a capital case once a death sentence has been imposed is that the defendant's conviction or sentence will be reversed on appeal. Execution is only the third most likely outcome. Of the 8,466 people sentenced to death from 1976-2013, 3,194 (38%) had their sentence or conviction overturned. 2,979 (35%) remained on death row at the time of the study. Fewer than 1 in 6 defendants - 1,359 (16%) - were executed. The rest died on death row of suicide or natural causes, had their sentence commuted, or were removed from death row for miscellaneous reasons. The study also notes that these rates vary dramatically from state to state, with states averaging about a 13% likelihood of executing a death sentence, and only one state - Virginia - executing more than half of those sentenced to death. "Regardless of one’s view of the death penalty in principle, these numbers raise questions about how the death penalty is applied in practice," the authors note. "The wide differences across states in the odds of carrying out a death sentence are potentially troubling from an equal protection standpoint." They conclude, "A system that ensures prolonged court time, automatic appeals for the convicted inmate – most of whom are eventually successful – and only a small chance of actual execution is a system built on false promises for everyone, and indeed one that seems to verge on torture." (Click image to enlarge)

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