Sentencing News and Developments: 2004

Kansas Death Penalty Statute Ruled Unconstitutional
The Kansas Supreme Court has ruled that the state's 1994 death penalty law is unconstitutional because it contains a provision giving the state an advantage when jurors find the aggravating and mitigating factors presented at sentencing to be equal. In that circumstance, the current law states that the defendant must be sentenced to death. The Court ruled that such a provision does not allow the jury to express a reasoned moral response to the evidence, and the process does not comport with the human dignity required by the Eighth Amendment.
This jury instruction flaw was first identified by the Kansas Supreme Court in 2001, when it ruled that each of the four men on death row must be resentenced with revised jury instructions that corrected the problem. In this most recent ruling, the justices ruled that it was not proper for the court to fix the statute, but rather it was the role of the legislature. (No. 81,135, KANSAS v. MICHAEL LEE MARSH II, 2004) (See Associated Press, December 17, 2004). The Kansas ruling marks the second time in 2004 that a state's highest court has declared a death penalty statute unconstitutional. Earlier this year, New York's highest court delivered a similar ruling and declared that state's law unconstitutional due to a sentencing flaw. Lawmakers in NY are currently holding hearings on capital punishment to determine whether the death penalty should even be reinstated. See Syllabus of the Kansas Opinion.


Plea Bargains Underscore Arbitrary Death Penalty in Oregon
A series of murder cases in Oregon underscores the ineffectiveness of the state's capital punishment system according to both death penalty supporters and opponents. Jesse Lee Johnson was sentenced to death while two other men who committed equally or more brutal crimes plea bargained to lesser sentences. Johnson received a death sentence in large part because he maintained his innocence, while convicted murderers Ward Weaver and Edward Morris pleaded guilty in exchange for not receiving the death penalty. Weaver was found guilty of sexually assaulting and killing two Oregon City girls and Morris was convicted of murdering his wife and three children in the Tillamook State Forest. Opponents of capital punishment note that the sentences prove the state's death penalty is arbitrary and unfair, while supporters of capital punishment are unhappy that the system continues to lack consistency and is ineffective. "Oregon has shown for all to see, through the plea bargains of Edward Morris and Ward Weaver, that the administration of the death penalty in Oregon is now capricious. As such, the only responsible civil action at this point is for the citizens of Oregon to abandon the death penalty," recently wrote William Long, a Willamette Law School professor. Since voters reinstated the death penalty in Oregon, more than half of the men sentenced to death have had their sentences reversed on appeal. The state has carried out 2 executions and both were of men who chose to abandon their appeals. No executions are currently pending in the state, but 28 individuals remain on death row. (The Oregonian, September 24, 2004).


Federal Judge Vacates One of California's Oldest Death Sentences
A federal judge has overturned one of California's oldest death sentences based on his finding that the 1979 trial of Earl Lloyd Jackson was tainted by unreliable jailhouse informants and poor representation. "The special circumstance finding and the death sentences in this case rest on an evidentiary foundation constructed largely from the false testimony of two jailhouse informants," wrote U.S. District Judge Edward Rafeedie in his ruling. Rafeedie further found a "dereliction of duty" by prosecutors and Jackson's defense attorney, noting that prosecutors allowed two jailhouse informants to lie to the jury about favorable deals they received in exchange for their testimony, and that Jackson's attorney failed to put on any defense during the penalty phase of the trial. This is the 6th death sentence to be overturned in California this year, and more than 85 cases have been reversed by the state or federal courts since 1987. Jackson, who has been on California's death row longer than all but 3 of the more than 620 prisoners awaiting execution, remains in prison for the crime. (Knight Ridder Tribune, September 9, 2004) See Representation.


Broken System: Error Found in Three-Quarters of New Jersey Death Cases
Of the 63 death sentences handed down since New Jersey reinstated capital punishment in 1982, 47 have been overturned, including that of Robert Marshall, whose death sentence was reversed on April 8th by a federal court. Marshall had been on New Jersey's death row longer than any other inmate prior to the vacating of his sentence. New Jersey has not carried out an execution since bringing back the death penalty. It currently has 11 inmates on death row, and no executions are scheduled at this time. (Asbury Park Press, September 7, 2004) See Death Row; also see DPIC's Summary of Prof. Liebman's Report on the national "Broken System".


Life Sentences Given in Four States
Death sentences have declined across the country. The following four cases are recent illustrations of this trend:

• In Cook County, Illinois, a judge sentenced Ronald Hinton to life without parole, citing abuse in the defendant's background and his remorse for the crimes. Hinton admitted to three murders. (Chicago Tribune, August 25, 2004).

• In Butler County, Ohio, a three-judge panel sentenced Tom West to life without parole for a shooting spree at a trucking company in which two people were killed and three others wounded. Costs of the trial, the agreement of the victims' families, and the defendant's mental illness were cited as reasons for the plea agreement. (Cincinnati Enquirer, August 24, 2004).

• In Crown Point, Indiana, Stephen Richards pleaded guilty and will be sentenced to life without parole for the shotgun slaying of two people over a sack of coins. Victims' family members agreed to the plea arrangement. (NWITimes.com, August 24, 2004 (Munster Times)).

• In San Mateo, California, prosecutors announced that they would not seek the death penalty against Seti Scanlan despite Scanlan's begging the jury to sentence him to death. Prosecutors cited costs and the uncertainty of getting a death verdict. A victims' family member was quoted as agreeing with the decision. (See item, San Jose Mercury News, August 24, 2004).

See Sentencing, Life Without Parole, and Victims.



Death Penalty Often a Plea Bargaining Tool
An Associated Press analysis of the 334 capital indictments filed in Franklin County, Ohio, found that only 16 (5%) of the cases ended with a death sentence. Of those sentences, two have been reduced to life in prison without parole, one man died on the row, and two men were executed this year. Research shows that of the remaining Franklin County cases, 183 cases (55%) ended in plea agreements, and in 111 cases (33%) juries or three-judge panels convicted the offenders but did not sentence them to death. In 45 of those 111 cases, offenders were convicted of lesser charges, and in the remaining 44 cases that went to trial, the juries convicted the offenders of crimes that carried the death penalty but chose prison terms instead. According to Ohio State University Professor Doug Berman, the death penalty "remains a relatively rarely used sanction" in Ohio and to the average prosecutor "itÕs a mechanism that allows them to enter plea negotiations in a stronger position." According to prosecutor Ron O'Brien, a change in state law that guaranteed life without parole in capital cases has been a factor in plea negotiations. (Associated Press, April 6, 2004) See Life Without Parole.

Death Sentences Decline Dramatically in North Carolina
According to District Attorney Tom Keith, death sentences in North Carolina have dramatically declined because jurors are increasingly skeptical of the justice system. Last year, 6 people were sent to North Carolina's death row, far less than the 26 who were given death sentences in 1999. Keith, who is moving resources away from death penalty cases and to aggressively targeting gun criminals before they kill, believes that a number of high-profile wrongful convictions and DNA exonerations have contributed to the trend toward fewer death sentences. "We're losing the public-relations war. I'm not going to keep trying them and trying them and trying them because I'm in love with the death penalty. If we're wasting our time, we won't try them," Keith stated. "If this community doesn't want to convict people of capital murder, I'll listen to what the people say." Concerns about innocence and fairness have also spurred death penalty reforms in recent years, including a bill to ban the execution of those with mental retardation and legislation to provide prosecutors with the option to take guilty pleas in capital cases in exchange for life-without-parole sentences. (Associated Press, March 14, 2004) Four people have been exonerated from North Carolina's death row, including Alan Gell in February 2004. See Innocence. See DPIC's Year End Report.


Geography Influences California Death Penalty Policies
A recent investigation of California's death penalty by the Associated Press found that the geographic location of a crime plays a significant role in whether a defendant receives the death penalty. California has the nation's largest death row. A disproportionately high number of inmates are from places such as Kern, Riverside, and Shasta Counties, where prosecutors have voiced strong support for the death penalty and jurors have been more likely to support the sentence. On the other hand, in counties such as San Diego and San Francisco, prosecutors have been more reluctant to seek a death sentence. "I will never charge the death penalty," said newly elected San Francisco District Attorney Kamala Harris in her inauguration speech in January 2004. Harris and other district attorneys who are more cautious in seeking capital convictions note that concerns about innocence and unfairness have led to their reluctance to seek death. Former San Diego District Attorney Paul Pfingst notes, "I was very cautious about the use of the death penalty. I demanded a very high degree of proof of guilt and a very high degree of evidence that death was the appropriate sentence."
San Francisco, where jurors and prosecutors tend to be liberal, and Kern County, where conservatives hold sway, each have roughly 700,000 people. But San Francisco has just 1 person on death row, when statistically the norm is about 14. Kern County has 23 people awaiting execution, 10 more than the per capita norm. Riverside has the highest number of inmates per capita on death row, with 54. A statistically proportionate number would be slightly more than 30. The only county with more condemned inmates is Los Angeles, the state's most populated, with 193, 11 more than expected under the state's average ratio. (San Mateo Daily Journal, February 6, 2004) See California.

California Death Sentences Decline Sharply
In 2003, California juries sent 16 individuals to death row, the lowest number since 1985 and a dramatic decline from 1999's total of 42 new death sentences. Some believe the decline is evidence of prosecutors being more selective in seeking death convictions, as well as the public's skepticism about the capital punishment system. Robert Pugsley, a professor at Southwestern University School of Law in Los Angeles, noted, "I think that (incidences of wrongfully convicted death row inmates) has given increased vigor to the argument made by ideological as well as pragmatic opponents of the death penalty that the system is riddled with error. Juries are being more selective and prosecutors too, although a DA would never admit that." California has executed 10 individuals since it reinstated the death penalty. The scheduled execution of Kevin Cooper in February 2004 would be the state's first execution in two years. There are more than 600 people on the state's death row. (Press-Enterprise, January 26, 2004) See Death Sentences by State. See California.

Governor's Death Penalty Proposal Meets Opposition
Minnesota Governor Tim Pawlenty has proposed a constitutional amendment to reinstate the death penalty after nearly a century without it. The idea has been met with some firm resistance from state lawmakers, including criticism from Representative Keith Ellison, who noted, "The death penalty serves no legitimate purpose. It's applied unfairly, falling disproportionately on the poor, people of color and, in too many cases, on the innocent. It's also a budget buster, sapping resources from education, health care, and public safety." (Star Tribune, January 28, 2004) A January 2004 poll of Minnesota voters administered by the Star Tribune found that, when given a choice between life in prison without parole and the death penalty for convicted murderers, 46% of Minnesota respondents chose prison and only 44% chose the death penalty. (Star Tribune, January 29, 2004) See Public Opinion. See Life Without Parole. Minnesota has consistently had one of the lowest murder rates in the country, about half of the national rate, and far below states like Texas that use the death penalty regularly. See Murder Rates by State.

For the First Time, No Death Sentences in Chicago in 2003
In the year since former Illinois Governor George Ryan's decision to grant clemency to all those awaiting execution in the state, no one has been sentenced to death in Cook County, which includes Chicago. This marks the first time since Illinois reinstated capital punishment in 1977 that the county has not had a death sentence. Cook County has historically sent the highest annual number of defendants to death row. Although Illinois currently has a moratorium on executions in place, prosecutors are still able to seek the death penalty for defendants accused of capital crimes. (Chicago Tribune, January 2, 2004) See DPIC's 2003 Year End Report.