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STUDIES: Rarity of Executions Makes California Jurors Less Likely to Impose Death Sentences

A study published in The Yale Law Journal provides new evidence that, as public opinion continues to shift away from the death penalty, juries empaneled in capital cases may become even less representative of the community and even more prone to convict. The studyconducted by Professors Brandon Garrett (University of Virginia), Daniel Krauss (Claremont-McKenna College), and Nicholas Scurich (University of California Irvine)—found that with increased public opposition to the death penalty, more prospective jurors may be excluded from serving on capital juries because of their views against the death penalty. The researchers surveyed people reporting for jury duty in Orange County, California about their views on the death penalty itself and on the impact of the rarity of executions in California. Orange County is one of the ten most prolific death-sentencing counties in the United States and was one of just 16 U.S. counties that imposed five or more death sentences from 2010 to 2015. But despite those facts, about one-third (32%) of those surveyed said they would automatically vote for life without parole in the sentencing phase of a death penalty case. This view would make them excludable from a capital jury in a process known as death qualification, a result that the authors said, "raises new constitutional questions concerning [death qualification's] effect on the ability to secure a fair cross-section of the community in the jury venire." The researchers also found that nearly one in four jurors (24%) said that, as a result of their concerns about the death penalty, they would "refuse to vote for murder in the first degree merely to avoid reaching the death penalty issue." These so-called "nullifiers" would also be excludable from the jury, producing a jury that would be more prone than the overall population to find the defendant guilty. But at the same time that death qualification "excludes far higher percentages of the population than ever before," the researchers found that it "also has become an even less predictable prosecution tool, because even many stated death penalty proponents now harbor serious doubts about the death penalty." Finally, researchers asked the jurors whether the fact that California has not carried out an execution since 2006 would make them more likely or less likely to impose a death sentence. 67% of those surveyed said it made them less likely to vote for death. The authors urge further research into jury attitudes about the death penalty and conclude, "These findings have implications for how we should think about punishment as well as the Eighth Amendment in the area of the death penalty, but also far more broadly. Perhaps unusual punishments appear cruel or unsupported due to their rarity in practice."


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Reports Find Record Number of Exonerations in 2016, Blacks More Likely to be Wrongfully Convicted

Companion reports released on March 7 by the National Registry of Exonerations found record numbers of exonerations and wrongful convictions involving official misconduct in 2016, and striking evidence of racial bias both in the wrongful convictions themselves and in the time it took the judicial process to exonerate the wrongfully incarcerated. The Registry's report, Exonerations in 2016, found a record 166 exonerations in 2016, with 54 defendants exonerated of homicide. A DPIC review of the Registry's data revealed that the death penalty played a role in nearly a quarter of the homicide exonerations. In at least six of the wrongful homicide convictions, prosecutors had sought the death penalty at trial; in another, an innocent defendant had pled guilty to avoid the death penalty; and at least six additional exonerations were the product of witnesses having falsely implicated innocent defendants after police had threatened the witness or a loved one with the death penalty unless the witness cooperated with the investigation. The Registry's companion report, Race and Wrongful Convictions in the United States, analyzes exonerations for murder, sexual assault, and drug crimes since 1989. The report found that black people are seven times more likely to be wrongfully convicted of murder than white people and that African Americans imprisoned for murder are more likely to be innocent if they were convicted of killing white victims. Police officers were more likely to have committed misconduct in the cases in which black defendants were exonerated of murder than in exonerations of white murder defendants. In addition, justice was delayed in exonerations of black murder defendants, who, on average, waited three years longer than whites before being released from prison. An analysis of the DPIC death-row exoneration database corroborates the National Registry's conclusions: 16 of the last 18 death-row exonerations had police or prosecutorial misconduct as their primary cause. 18 of the exonerees in the last 25 misconduct-related death-row exonerations are black. While 68.8% of wrongly convicted non-black death-row exonerees were exonerated in 10 years or less, it took the judicial system 11 years or more to exonerate 57.3% of the wrongly convicted black death-row exonerees. 84.6% of all cases in which exoneration took 26 years or more involved black defendants.


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STUDIES: At Least 201 Florida Death Row Prisoners May Be Eligible for Resentencing, 134 Had Non-Unanimous Juries

A new study reports that at least 201 Florida death row prisoners—including at least 134 whom judges sentenced to death after juries had returned non-unanimous sentencing recommendations—may be eligible for resentencing hearings as a result of recent rulings by the United States and Florida Supreme Courts declaring the state's death sentencing practices unconstitutional. In 2016, the U.S. Supreme Court struck down Florida's statute in Hurst v. Florida, ruling that it unconstitutionally denied defendants the right to have juries decide whether the prosecution had proven key facts necessary to impose the death penalty. Later in the year, in Hurst v. State, the Florida Supreme Court also struck down the statute for permitting judges to impose death sentences without a unanimous jury recommendation for death. In a pair of rulings issued in December 2016, Asay v. State and Mosley v. State, the court applied that decision to any defendant whose death sentence was finalized after the U.S. Supreme Court ruling Ring v. Arizona, in 2002. The authors of the study, Michael Radelet (pictured), a sociology professor at the University of Colorado-Boulder, and G. Ben Cohen, a capital litigator in New Orleans, Louisiana, caution that the 134 non-unanimous post-Ring death verdicts that they have identified "are not the only cases that may require resentencing, as defendants may have different claims arising from other constitutional deficiencies in the Florida statutes." Their study shows that ten counties account for nearly 60% of Florida's death row, more than 60% of those sentenced to death since Ring, and 62% of the known non-unanimous verdicts and will most heavily bear the cost of resentencing these defendants. The counties with the largest numbers of affected prisoners are also among the 2% of U.S. counties responsible for a majority of people on death row nationwide. Duval County has 31 defendants who may be eligible for resentencing, of whom at least 26 had a non-unanimous jury. The same is true of 11 of 12 affected defendants from Miami-Dade County, 8 of 12 from Broward County, and 7 of 11 from Seminole County. The authors point out that the constitutional failures of Florida's statute have been evident for many years, and that earlier acknowledgement of these problems could have saved the state from the costly resentencing hearings it now faces: "The significant cost of resentencing all of these individuals under a constitutional scheme was very predictable at the time of Ring in 2002, and was also foreseen by at least some experts who examined the post-Furman statute that was enacted in 1972." They conclude that "In 2017, the Florida legislature will need to make changes in the Florida death penalty statute that were predictable when the statute was first passed in 1972, and inevitable when the U.S. Supreme Court released Ring v. Arizona in 2002. Finally, they will need to acknowledge that Ring has rung."


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