NEW VOICES: Why Prosecutors in Texas, Pennsylvania Are Seeking Death Penalty Less Often
Prosecutors across the country are seeking the death penalty less frequently and in recent interviews two district attorneys, one from Texas and one from Pennsylvania, have given some of their reasons why. Randall County, Texas District Attorney James Farren (pictured) told KFDA-TV in Amarillo that his experience handling one particularly lengthy and costly capital case has changed how he will make decisions in future cases that are eligible for the death penalty. He said that his office has spent, "conservatively...at least $400,000" on the prosecution of Brittany Holberg, who has been on death row since 1998. Farren said the costs are too high for taxpayers and "I do not want to subject them to this kind of thing any longer." While he said he still supports the death penalty, Farren predicted that, in the near future, the U.S. Supreme Court "likely will decide society has evolved to the point that it’s no longer appropriate." In an interview with the Reading Eagle, John T. Adams, District Attorney of Berks County, Pennsylvania, says that he rarely seeks the death penalty and is "just as happy with a life sentence as I am a death sentence." If defendantants are sentenced to life without parole, Adams says, "[t]hey will not be a threat to our community ever again. And frankly, community safety is the utmost of my concerns." Adams adds, "I think you will find throughout Pennsylvania that we are seeking [the death penalty] less and less, and I think that's good."
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Despite Executions, Death Penalty is in Decline in the "New Georgia"
Although Georgia carried out 5 of the 28 executions in the U.S. in 2015, it imposed no new death sentences and a significantly changed legal landscape points to a "new Georgia" with the death penalty in decline. The Georgia legal publication, Daily Report, dubbed the decline in death sentences its "newsmaker of the year," and explored the reasons for the change. Jerry Word, the division director of the Georgia Capital Defender, said that with the Defender's early intervention initiative reaching out to prosecutors to present reasons to decapitalize a case, prosecutors agreed to drop the death penalty in all 29 of the cases his office handled this year. The only capital case that went to trial with the death penalty as an option was a case in which the defendant represented himself, and the jury handed down life without parole. In 2014, only one of the state's 19 potential capital cases ended in a death sentence and only one of the last 71 capital cases the capital defender has handled has resulted in a death verdict. Several factors have created the new landscape and contributed to the reduction in death sentences. Word said these include the cost of death penalty trials and the efforts by defense counsel to present prosecutors with mitigating evidence early in the process. But, he said, "I think the LWOP [life without parole] is the really big one. We've had that for six years now, but we've really just started seeing the impact in the last few years." Chuck Spahos, executive director of the Prosecuting Attorneys' Council of Georgia, agreed that life without parole had played a significant role: "I certainly think things changed dramatically when the Legislature gave us the life without parole option," he said. Similar factors have contributed to death penalty declines in historically active death penalty states like Texas and Virginia. Sara Totonchi, executive director of the Atlanta-based Southern Center for Human Rights, said "Georgia is in step with the national trend of declining use of the death penalty. The continued marginalization of the death penalty is not surprising given growing concerns about its implementation, particularly with regard to the potential of an innocent person being executed and the prevalence of botched executions as states experiment with lethal injection drugs."
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DPIC Releases Year End Report: Historic Declines in Use of Death Penalty in 2015
On December 16, DPIC released its annual report on the latest developments in capital punishment, "The Death Penalty in 2015: Year End Report." The death penalty declined by virtually every measure in 2015. 28 people were executed, the fewest since 1991. Death sentences dropped 33% from last year's historic low, with 49 people being sentenced to death this year. There have now been fewer death sentences imposed in the last decade than in the decade before the U.S. Supreme Court declared existing death penalty laws unconstitutional in 1972. Just six states carried out executions, the fewest since 1988; and three states (Texas, Missouri, and Georgia) accounted for 86% of all executions. For the first time since 1995, the number of people on death row fell below 3,000. Public support for the death penalty also dropped, and the 2015 American Values Survey found that a majority of Americans prefer life without parole to the death penalty as punishment for people convicted of murder. Six people were exonerated from death row this year, bringing the total number of exonerations since 1973 to 156. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC's Executive Director. See DPIC's Press Release. View a video summarizing the report. (Click image to enlarge.)
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STUDIES: Electoral Pressures Influence Judges' Decisions in Capital Cases
"[E]lectoral pressures influence judges' decisions in capital cases," according to a new report by the Brennan Center for Justice at the New York University School of Law. That report, How Judicial Elections Impact Criminal Cases, surveyed numerous empirical studies that had reviewed the effects of judicial elections on outcomes in criminal cases. The vast majority of criminal defendants - including capital defendants - face elected judges at trial and on appeal. According to the report, 87% of state judges face election, and 94% of felony convictions are tried in state courts. The report found that "the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases" in general, but that these pressures also produced identifiable effects in death penalty cases. First, electoral pressures affected trial judges in capital cases. "In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years," the report said. The report also found that "appellate judges facing re-election are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them." Referencing a recent Reuters study, the report said states with elected supreme court justices had substantially lower rates of reversing death sentences on appeal than states with appointed justices. Justices who ran against other candidates for office were the least likely to vote to reverse a death sentence (11%), and those who faced retention elections reversed only 15% of the time. Justices who were appointed were comparatively more likely to vote to reverse death sentences (26%). The report concludes, "Empirical studies across states, court level, and method of election find that proximity to re-election makes judges more punitive — more likely to impose longer sentences, affirm death sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to re-election."
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Study Shows Trends in Executions, Death Sentences Closely Track Drop in Public Support for the Death Penalty
Historical trends in executions and new death sentences closely track changes in public attitudes about the death penalty and crime in general, according to a comprehensive University of North Carolina analysis of national public opinion surveys on the death penalty. UNC-Chapel Hill Professor Frank Baumgartner has created a statistical index of public support for capital punishment based upon the results of 488 national surveys on the death penalty over the last 40 years. This index documents the close relationship between steep nationwide declines in executions and new death sentences and the historical declines in public support for the death penalty. Baumgartner says the public opinion polls show that support for the death penalty and for punitive criminal justice policies in general have declined substantially since 1976. He observes that "The number of death sentences tracks closely with public opinion toward that form of punishment.... As the public has increasingly spurned the death penalty, death sentences have also declined." Baumgartner's study also shows that the number of counties and states carrying out executions, as well as the number of executions and new death sentences, have all declined in a pattern closely tracking the drop in public support. He concludes, "No matter how we look at it, for the past 20 years, the death penalty has been dying." (Click image to enlarge.)
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Counties With Highest Rates of Killings by Police Also Among Highest in Death Sentences
The counties in the United States that have the highest per capita rate of killings by police officers also rank among the highest in the country in the number of people sentenced to death. In his criminal justice blog, "The Watch," for the Washington Post, Radley Balko details the "remarkable correlation" between killings by police and death sentences imposed. "There are more than 3,000 counties in the United States," Balko writes. "But the 13 with the highest rates of police killings are not only all in death penalty states; they also all rank among the top 30 in death sentences meted out over the past 40 years." These jurisdictions, which Balko describes as "America's killingest counties," all rank among the 2 percent of U.S. counties that account for more than half of America’s death row population. Balko focuses on Kern County, California, where police have killed more civilians per capita than anywhere else in the country - 0.9 police killings per 100,000 residents - even though the city’s overall murder rate is, Balko says, "right at about the national average." Kern "has also sent 26 people to death row since 1976, putting it among the top 25 in the country." In explaining the correlation between police killings and death sentences, Balko notes that "the counties that send the most people to death row also tend to be counties with histories of prosecutorial abuse and misconduct." He suggests that, as "the chief law enforcement officers within their judicial districts[, district attorneys] set the tone for the entire area. They’re also typically in charge of investigating officer-involved shootings and other allegations of excessive force. 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."
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Ohio Capital Murder Indictments Plummet 77% in Five Years
Capital murder indictments have plummeted and life sentences risen sharply in Ohio over the past five years, according to a report by the Cleveland Plain Dealer. The newspaper's examination of Ohio prison and other public records revealed that capital indictments in the state have dropped by 77% since 2010, mirroring national trends. Prosecutors are far more likely to seek a sentence of life without parole in cases in which they once would have pursued the death penalty. The paper also reports that the number of inmates sentenced to life without parole has skyrocketed by 92% since 2010. Among other factors, changes in District Attorneys, reduced public support for the death penalty, and consideration of costs and the impact of capital proceedings on the families of murder victims have led to fewer death penalty cases. The difference in Cuyahoga County (Cleveland) is particularly striking: since prosecutor Timothy McGinty became district attorney in 2012, the office has sought death in fewer than 7% of eligible cases. Under McGinty's predecessor, Bill Mason, the office sought death in 78% of eligible cases. McGinty instituted an internal review committee to examine each death-eligible case and determine whether to seek a death sentence. He said, "In every case, I have to ask, 'Are we going to survive this?' We have to take a case to a judge and jury and then face 25 years of appeals. Is it fair to families of victims? Is it fair putting them through a quarter century of appeals?'' (Click image to enlarge.)
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U.S. on Track for Fewest Executions, New Death Sentences in a Generation
Both executions and new death sentences in the United States are on pace for significant declines to their lowest levels in a generation, Reuters reports. With 25 executions conducted so far this year, and only two more scheduled, the United States could have its lowest number of executions since 1991, significantly below the peak of 98 executions in 1999. Only 8 states have carried out executions in the last two years, down from a high of 20, also in 1999. New death sentences, which peaked at 315 in 1996, declined to 73 last year, and that number is expected to drop even further this year. The slowdowns in executions and new death sentences are just two of several indicators that the U.S. is moving away from capital punishment. Reuters reports that these changes come from a combination of factors, including the high cost of death penalty cases, the recent problems surrounding lethal injection, and improved capital representation in high-use states. Texas and Virginia, two of the death penalty states that historically have been the most aggressive in carrying out executions, stand out as examples of the punishment's declining use. Both states have implemented major reforms in indigent defense in recent years, producing dramatic changes in the death penalty landscape. In Texas, which had 48 death sentences in 1999, juries have handed down only three death sentences so far this year. Virginia, which has executed the highest percentage of death row inmates of any state, is on track to have no death sentences for the fourth consecutive year.
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STUDIES: Explaining Virginia's Disappearing Death Penalty
A new study by University of Virginia law professor Brandon Garrett (pictured) shows a dramatic decline in the death penalty in Virginia over the last decade. Virginia has carried out the third highest number of executions since the 1970s and historically has executed a higher percentage of its death-row prisoners than any other state. However, Garrett said there are now fewer than two capital sentencing trials per year and Virginia juries have not imposed any new death sentences since 2011. Reviewing Virginia capital proceedings from 2005 to 2014, Garrett found that "[a]lmost all capital cases are now plea bargained," with only 21 proceeding to a capital sentencing hearing. Juries imposed life sentences in more than half of those cases. Garrett found troubling trends in the evidence used in capital cases, which relied frequently on forms of evidence that have been found to be unreliable or susceptible to abuse, such as unrecorded confessions to police, informant testitmony, or eyewitness identifications. He also found significant geographic disparities in death penalty verdicts. “The ‘new’ Virginia death penalty is almost never imposed and when it is, a death sentence is so freakish that it raises the constitutional concerns with arbitrariness under the Eighth Amendment that U.S. Supreme Court justices have long expressed,” Garrett said. “Virginia may be a bellwether for the future of the American death penalty.” The study also compared sentencing proceedings in the past decade with 20 capital trials from 1996 to 2004 to try to explain the drop in death sentences. Garrett concluded that improved representation - both leading to pleas and in performance at trial - was the primary factor in the decline.
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STUDIES: Requiring Jury Unanimity Would Decrease U.S. Death Sentences by 21%
The U.S. Supreme Court heard oral argument on October 13 in Hurst v. Florida, a case challenging provisions in Florida's death penalty statute that do not require jurors to unanimously agree to the facts that could subject a defendant to a death sentence or to reach unanimity before recommending that the judge sentence a defendant to death. Florida is one of just three states that does not require a unanimous jury verdict when sentencing someone to death. A study by the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School found that requiring jury unanimity in Florida, Alabama, and Delaware would have caused a dramatic drop in death sentences over the last 5 years. Overall, the three states would have returned 26 death sentences since 2010, instead of 117 - a 77% drop - and Florida would have imposed 70% fewer death verdicts. The three states that do not require unanimity in death sentencing have produced a disproportionate share of the nation's death sentences, accounting for 28% of all U.S. death sentences since 2010. Had these states followed the sentencing system used by every other death penalty state, the total number of death sentences imposed in the United States would have decreased by 21%. (Click image for full infographic.)
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