Arbitrariness

Alabama to Execute Ronald Smith Despite Jury's Vote For Life Sentence

Alabama is set to execute Ronald Smith on December 8, although the sentencing jury in his case recommended that he be sentenced to life. Under a practice that is no longer permitted in any other state, Smith's judge overrode the jury's sentencing recommendation and imposed a death sentence. As his execution approaches, Smith has filed a petition in the U.S. Supreme challenging the constitutionality of Alabama's law. He argues it violates both his right to have a jury determination of all facts that are a prerequisite to imposing the death penalty, and a national consensus against judicial disregard of jury capital sentencing verdicts. Smith's petition notes that "Alabama is the only state that allows a judge to sentence a defendant to death when the jury has recommended a sentence of life." His lawyers also have petitioned Governor Robert Bentley for clemency, quoting a juror who said, "It was very painful to make such a difficult decision, only to have the judge disregard it." A recent report by the Brennan Center on Justice found that "electoral pressures influence judges' decisions in capital cases," including Alabama's practice of judicial override, which accounts for one-fifth of Alabama's death row.  Earlier this year, state courts in Florida and Delaware--the only other states that had permitted judicial override--struck down sentencing statutes that permitted judges to impose death sentences in the face of jury recommendations for life or non-unanimous recommendations for death. These decisions grew out of the U.S. Supreme Court's January 2016 ruling in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." Smith's attorneys argue that Alabama's judicial override practice violates Hurst. Alabama's attorney general disagrees, arguing that the Alabama statute is different from Florida's because it requires the jury to find the existence of an aggravating factor making the defendant eligible for death. Smith's lawyers also argue that "[t]his life-and-death decision is being made by judges facing intense electoral pressure," rendering such overrides unconstitutionally arbitrary. Smith was never able to obtain review of these issues in federal court because his attorney made an error in paying a filing fee. Though his claims were filed by the deadline, his lawyer, who was on probation for public intoxication at the time, assumed he did not have to pay a filing fee of $154 because his client was indigent. In addition to his judicial override challenge, Smith is also part of a group of death row inmates challenging Alabama's new lethal injection protocol, which would use midazolam, a drug involved in several botched executions over the last few years.

Georgia Set to Execute Man Despite Serious Juror Misconduct that No Court Has Ever Reviewed

UPDATE: The Georgia Board of Pardons and Paroles denied Sallie's request for clemency. PREVIOUSLY: Georgia plans to execute William Sallie (pictured) on December 6 in a case his attorneys argue is tainted by egregious juror misconduct that no court has considered because Sallie missed a filing deadline during a period in which he was unrepresented and Georgia provided him no right to a lawyer. It is a case that Andrew Cohen, a Fellow at the Brennan Center for Justice and long-time legal analyst, says "should shock the conscience of every person who believes [in] due process of law." Sallie was convicted of killing his father-in-law and wounding his mother-in-law during a 1990 custody fight with his estranged wife. Because the case involved domestic violence, divorce, and a custody battle, potential jurors were questioned about their experiences with those issues in an effort to eliminate possible bias. One juror lied about her background, which included four contentious divorces, child custody and support fights, and family violence. Although the trial judge had presided over three of the juror's four divorce proceedings -- including one said to have involved dramatic scenes in the courtroom -- he failed to remove her from the jury. During questioning, the same juror stated that she would follow Biblical law over Georgia law, which Cohen says also should have disqualified her from serving in the case. However, over the objections of Sallie's attorney, the judge permitted her to serve and the Georgia courts rejected this challenge to the juror on appeal. During the course of the trial, the juror then carried on an extramarital affair with a male juror, and law enforcement personnel were dispatched to her house after the trial to tell the man his wife had been looking for him. The judge subsequently informed Sallie's lawyers of that affair, but in the 15 months before filing a motion for a new trial, they did nothing to investigate the juror and did not raise her marital history or in-trial misconduct as an issue. The juror later said in an affidavit that she had pressured six other jurors into voting for a death sentence for Sallie. No appeals court has heard evidence of the juror misconduct because Sallie missed a filing deadline by eight days during a period when he had no lawyers representing him. Former Georgia Supreme Court Chief Justice Norman S. Fletcher decried Georgia's failure to provide death row inmates with attorneys throughout the appeals process, saying that "[f]undamental fairness, due process and the prohibition against cruel and unusual punishment require the courts to provide an attorney throughout the entire legal process to review a death sentence. Virtually every capital-punishment state has this safeguard. Georgia is an outlier." In his clemency petition, Sallie's attorneys argue, “The determination of a death sentence must occur only with the most pristine and careful proceedings uncorrupted by bias and dishonesty. That simply did not happen here.”

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.)

Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

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.

OUTLIER COUNTIES: Former Death Penalty Capital Shows Signs of Change

Harris County, Texas, the county that leads the nation in executions, has served as a bellwether in recent years of the nationwide decline of the death penalty. Although the 10 new death sentences imposed in Harris County since 2010 are more than were imposed in 99.5% of U.S. counties, they are significantly fewer than the 53 new death sentences that were handed down in Harris in 1998-2003 and the 16 from 2004-2009. The 2016 Kinder Institute survey of Houston residents showed that just 27% prefer the death penalty over life sentences for those convicted of first-degree murder. Though the number of death sentences has dropped, systemic problems of prosecutorial misconduct, inadequate representation, and racial bias persist. Kelly Siegler, a prosecutor who obtained 19 death sentences, was found by a Texas court to have committed 36 instances of misconduct in a single murder case. In another case, she brought the victim's bloodstained bed into the courtroom and reenacted the murder using one of the knives from the crime scene. Harris County became nationally known in the 1990s for bad defense lawyering when a capital defense attorney slept through his client's trial. A judge told the defendant, "the Constitution does not say that the lawyer has to be awake." Today, Harris County defendants still receive ineffective counsel because of a pay system that discourages defense lawyers from seeking plea bargains or hiring expert witnesses. Every new death sentence imposed in Harris County since November 2004 (not including resentences) has been imposed upon a Black or Latino defendant. Former Harris County District Attorney Chuck Rosenthal, who oversaw 40 death sentences between 2001 and 2008, resigned after a civil suit uncovered racist emails he sent using his official email account. The U.S. Supreme Court is currently deciding Buck v. Davis, a Harris County case in which a Black defendant was sentenced to death after his defense attorney introduced racially-biased testimony during sentencing. Three Harris County defendants have been exonerated from death row, most recently Alfred Brown (pictured) in 2015. Prosecutors withheld evidence that corroborated Brown's alibi, Brown's girlfriend was threatened and eventually imprisoned until she agreed to testify against him, and officials refused requests to test DNA that may implicate another suspect.

OUTLIER COUNTIES: Kern County, California Leads Nation in Police Killings, Ranks Among Highest in Death Sentences

Kern County, California—one of five Southern California counties that have been described as the "new Death Belt"—sent six people to death row between 2006 and 2015, more than 99.4% of U.S. counties. Its death sentence-to-homicide rate during the 10-year-period from 2006 to 2015 also was 2.3 times higher than in the rest of the state. In this same time frame, Kern had the highest rate of civilians killed by police of any county in the country:  between 2005 and 2015, police killed 79 people in Kern County, a rate of 0.9 killings per year per 100,000 residents. In The Washington Post, Radley Balko explained the policy link between high rates of police killings and high use of the death penalty, noting that District Attorneys set the tone for law enforcement in their counties and are usually in charge of investigating excessive use of force by police. "It isn’t difficult to see how when a DA takes a 'win at all costs' approach to fighting crime, that philosophy would permeate an entire county’s law enforcement apparatus, from the beat cop to the DA herself or himself," Balko said. In Kern County, police killings and high numbers of death sentences are part of a larger narrative of official misconduct. Ed Jagels, the longtime District Attorney in Kern County, led the campaign to oust Chief Justice Rose Bird and two other Justices from the California Supreme Court over their votes in death penalty cases. He boasted about Kern leading the state of California in incarceration rate. A largely-fabricated sex abuse scandal led to 26 exonerations. Prosecutors have been found to have altered interrogation transcripts and hidden unfavorable blood test results. According to Harvard University's Fair Punishment Project, current District Attorney Lisa Green "promised to continue to be an example of aggressive prosecution" when she took over in 2010. Saying that for some capital defendants "Justice ... is nothing less than death," she advocated for a state referendum limiting death penalty appeals. Ineffective defense lawyering has also contributed to Kern's high death sentencing rate. In one particularly egregious case, a defense attorney emailed his co-counsel before the sentencing phase of a capital trial, saying, “I don’t know what a penalty trial really looks like—it’s starting to concern me.” Though half of Kern's defendants sentenced to death from 2010-2015 had intellectual disability, brain damage, or mental illness, defense lawyers presented an average of less than 3 days' worth of evidence to spare the defendant's life. In numerous cases, lawyers presented a day or less of mitigating evidence.

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