Arbitrariness

Editorials in Major Death Penalty States Call for Its Abolition

Recent editorials from leading newspapers in three of the largest death row states critique flaws in the death penalty and call for its abolition. The Sacramento Bee quoted federal district court judge Cormac Carney's recent ruling finding California's death penalty unconstitutional because executions are so rare that they "serve no retributive or deterrent purpose." The Bee called the state's capital punishment system "an abject failure" and said, "[t]he death penalty has not worked, and never will." In the wake of the exoneration of Alfred Brown from Texas' death row, the Dallas Morning News said, "Brown’s release underscores the unacceptably high potential for killing innocent people despite clear flaws in the prosecutorial system." That editorial concluded,"The criminal justice system is too riddled with imperfections to merit reliance on a sentence that cannot be revisited or reversed once it’s carried out. Not when life without parole is an alternative." In Pennsylvania, The Harrisburg Patriot-News said, "The state should not be in the business of killing people." It urged Gov. Tom Wolf to go beyond the moratorium he imposed on the death penalty earlier this year and "seek an end to the practice entirely." Citing the rarity of executions in Pennsylvania and the difficulties in obtaining lethal injection drugs, the editorial said, "Justice can be served through imprisoning a murderer for the rest of his or her life. Vengeance against the accused is not justice."

NEW VOICES: Kareem Abdul-Jabbar Urges Abolition of Death Penalty

In his column for TIME Magazine, basketball hall of famer, author, and filmmaker Kareem Abdul-Jabbar broadly explores the state of the death penalty In the United States and concludes that life without parole is the better option for American society. Stating that "[t]he primary purpose of the death penalty is to protect the innocent," Abdul-Jabar notes that there is a significant difference between the death penalty's goal in theory and its application in practice. "While it’s true that the death penalty may protect us from the few individuals it does execute," he says, "it does not come without a significant financial and social price tag that may put us all at an even greater risk." Abdul-Jabbar points to the death penalty's financial cost, the risk of executing the innocent, and racial and economic disparities in its application. Financially, he says, "[t]his isn’t a matter of morality versus dollars. It’s about the morality of saving the most lives with what we have to spend. Money instead could be going to trauma centers, hospital personnel, police, and firefighters, and education...The question every concerned taxpayer needs to ask is whether or not we should be spending hundreds of millions of dollars on executing prisoners when life without parole keeps the public just as safe but at a fraction of the cost." His column discusses the "high probability that we execute innocent people," citing the more than 140 people exonerated from death row and a recent study indicating that 4% of people sentenced to death may be innocent. Abdul-Jabbar also describes racial bias in capital sentencing, and the problem of inadequate representation, saying, "[t]his lack of fair application is why some opponents of the death penalty consider it unconstitutionally cruel and unusual punishment." He concludes, "we can’t let our passion for revenge override our communities’ best interest...With something as irrevocable as death, we can’t have one system of justice for the privileged few and another for the rest of the country. That, more than anything, diminishes the sanctity of human life."

LAW REVIEW: Stephen Bright on Race, Poverty, Arbitrariness and the Death Penalty

In an article for the University of Richmond Law Review, Stephen Bright (pictured), President and Senior Counsel at the Southern Center for Human Rights, describes the arbitrary factors that continue to influence the death penalty. Bright first describes the historical context that led the Supreme Court to strike down the death penalty in 1976. He draws comparisons between lynchings, which he says were "used to maintain racial control after the Civil War," and capital punishment, which in 1976 "was very much tied to race - the oppression of African Americans, carried out by this country's criminal courts." He then explains how this legacy of racial bias continues today, saying, "The race of the defendant and the race of the victim continue to influence the imposition of the death penalty. The courts remain the part of American society least affected by the civil rights movement of the mid-twentieth century." Bright also addresses bias against the poor, and those with mental illness and intellectual disabilities. He concludes, "What purpose is the primitive penalty of death serving in a modern society? When we look closely at the issues - race, poverty, arbitrariness, conviction of the innocent, mental illness, and intellectual disability - from both a moral and practical standpoint, it will not be long before we join South Africa and the rest of the civilized world in making permanent, absolute, and unequivocal the injunction: 'Thou shall not kill.'"

Florida Supreme Court Strikes Down Mentally Ill Defendant's Death Sentence as Disproportionate

In a case spotlighting issues of mental illness and the death penalty, the Florida Supreme Court on April 23 unanimously overturned the death sentence imposed on a severely mentally ill death-row inmate, Humberto Delgado (pictured). Delgado, who was convicted of killing a Tampa police officer, will be resentenced to life without parole. The court said, "We do not downplay the fact that Corporal Roberts lost his life as a result of Delgado's actions. However … we are compelled to reduce Delgado's sentence to life imprisonment because death is not a proportionate penalty when compared to other cases." Delgado had a history of delusions and psychotic behavior before the crime, including believing that police were out to kill him and that people were following him and sitting in trees outside his home. Delgado's attorneys pointed out that, because Delgado shot the police officer only after the officer had used a Taser, there was a lack of premeditation. Tampa police Chief Jane Castor released a statement in response to the decision, saying, "We respect the justice system and those who have to make tough decisions. Regardless of the conclusion, it doesn't bring Mike back and it doesn't relieve the pain that his wife, son and his TPD family feel. His life sentence will still ensure he is held accountable for his actions." 

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.

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