Sentencing

New Neuroscience Research Suggests Age Limit for Death-Penalty Eligibility May be Too Low

When the U.S. Supreme Court banned the death penalty for juvenile offenders in 2005 in Roper v. Simmons, Justice Anthony Kennedy's opinion for the Court acknowledged the inherent arbitrariness in selecting an age cutoff. "The qualities that distinguish juveniles from adults do not disappear when an individual turns 18," he wrote. "However, a line must be drawn." New neuroscience research suggests that the age-18 line may be too low. The court's opinion in Roper found that a national consensus had developed against subjecting juveniles to the death penalty based upon behavioral evidence that juveniles are less able to understand the consequences of their actions, more susceptible to peer pressure, and less able to control their impulses. One word missing from the Roper court's analysis of the age-18 death-penalty cutoff: "brain." An August 12, 2018 article for The Marshall Project by Beth Schwartzapfel explores the judicial system's response to new neurological research on brain development and whether 18 is the most appropriate age of eligibility for the harshest sentences, including the death penalty and mandatory life without parole. Brain research now clearly demonstrates that those portions of the brain that regulate impulse control and decision-making do not fully mature until well into a person's 20s, and defense lawyers have begun to argue that the same limitations on extreme punishments applicable to juveniles should apply to youthful offenders in “late adolescence,” between the ages of 18 and 21. Brain research by Temple University psychology professor Laurence Steinberg (pictured), a national expert in adolescent brain development, found that impulsive thrill-seeking and the need for immediate gratification peaks in late adolescence around age 19, before declining through an individual's 20s. In a 2017 case in which a Kentucky trial judge declared the death penalty unconstitutional for defendants charged with committing a crime before age 21, Steinberg testified, "Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper." Judge Ernesto Scorsone agreed, writing, "If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling." On February 5, the American Bar Association House of Delegates voted overwhelmingly to adopt a resolution calling for an end to the death penalty for offenders who were 21 or younger at the time of the crime. According to a report accompanying the resolution, "there is a growing medical consensus that key areas of the brain relevant to decision-making and judgment continue to develop into the early twenties." In September 2017, the U.S. Supreme Court declined to review Ohio death-row prisoner Gary Otte's claim that the death sentence was unconstitutionally imposed in his case because he was only 20 years old at the time of the offense. Otte was executed September 13, 2017.

Montana Prosecutors Drop Death Penalty Against Mentally Ill Defendant

Lloyd Barrus (pictured, left) will not become the first person sentenced to death in Montana this century, after prosecutors dropped their pursuit of the death penalty for the killing of a sheriff's deputy. In a motion filed July 19, 2018, Broadwater County Attorney Cory Swanson (pictured, right) wrote that, "after extensive analysis of the Defendant's history of ... mental illness," the state would no longer seek the death penalty in the case. Doctors at the Montana State Hospital had diagnosed Barrus with multiple mental health disorders, including a delusional disorder, that led Judge Kathy Seeley to find him incompetent to stand trial and to commit him to a mental hospital for treatment. Medical records documented Barrus's history of mental health issues dating to 2000, and Swanson did not contest the diagnoses. The prosecution's notice to withdraw the death penalty acknowledged that Barrus's mental illness was potentially a "sufficiently mitigating circumstance" for the court to choose a life sentence over the death penalty. Swanson said he believes the mental health treatment plan ordered by the court will restore Barrus's competency to be tried, that he "expects to try this case before a jury, and believes the court will have the opportunity to hold the Defendant accountable through a just sentence, which includes up to imprisonment for life without the possibility of parole." With the death penalty off the table, Montana will continue its 21-year streak without a death sentence. The last time the state sentenced a defendant to death was 1996. Just two people remain on Montana's death row, and the state's last execution was in 2006. Several states have considered bills in recent years that would exempt people with severe mental illness from the death penalty, but no state has imposed such a ban.

Florida Juries Reject Death Sentences for Four Men, Highlighting Impact of Unanimity Requirement

Juries in two Broward County, Florida death-penalty trials have handed down life sentences for four capital defendants in the span of one week, highlighting the effect of a new Florida law requiring the unanimous agreement of the jury before a defendant can be sentenced to death. On July 16, a Broward County jury spared three defendants—Eloyn Ingraham, Bernard Forbes, and Andre Delancy—whom it had convicted in March of murdering a Broward sheriff's deputy. Three days later, another Broward jury rejected the death penalty for Eric Montgomery, after having convicted him in April of the murders of his wife and stepdaughter. The verdicts marked the third time in four capital trials since Florida adopted the jury unanimity requirement that Broward juries have opted for life sentences. The sole exception was the case of Peter Avsenew, who represented himself in the penalty-phase after firing his lawyers, presented no penalty-phase defense, and told the jury he had "no regrets" for his actions and was "proud of the decisions [he'd] made." South Florida juries in Palm Beach County also have recommended life sentences in the three first-degree murder trials conducted there since September 2017. In March 2017, the Florida legislature changed its death penalty law in response to two Florida Supreme Court decisions in October 2016 that declared the state’s practice of permitting judges to impose death sentences based upon a non-unanimous jury recommendations for death to be unconstitutional. Those decisions were based on the U.S. Supreme Court's January 2016 decision in Hurst v. Florida, which ruled that Florida's previous death-penalty statute violated the Sixth Amendment right to a jury trial by giving judges, rather than the jury, the ultimate power to find the facts that could lead to a death sentence. Florida's criminal law required unanimity for every other decision made by a jury, and the 2017 amendment brought Florida's law into line with the laws of virtually every other death-penalty state. Only Alabama still permits a trial judge to impose the death penalty based upon a jury's non-unanimous sentencing recommendation. 

Colorado Jury Returns Life Sentence in Third Consecutive High-Profile Death-Penalty Case

Colorado Springs jury rejected a death sentence for Glen Law Galloway (pictured), marking the third high-profile case since 2015 in which Colorado jurors have selected a life sentence over death. The verdict brought to an end El Paso County’s first capital prosecution in more than a decade, after a six-week trial in a courtroom with a $50,000 makeover that included new audio and video technology and a remodeled jury box enlarged to accommodate six alternate jurors. 2,800 potential jurors had received summonses to appear for service in the case. Prosecutors unsuccessfully attempted to portray Galloway as an unrepentent and remorseless killer who, in the words of El Paso District Attorney Dan May, had committed “two horrific homicides.” They claimed that Galloway had killed a homeless man, Marcus Anderson, to steal his truck and silence him as a witness, and then drove it to the house of his ex-girlfriend, Janice Nam, where he killed her to exact revenge for a stalking conviction. The jurors found Galloway guilty of premeditated murder in Nam's killing, but determined that Anderson’s murder had not been premeditated and acquitted Galloway of aggravated robbery, rejecting the prosecution’s contention that he had killed Anderson to steal his truck. The same defense team that represented Aurora movie-theater shooter James Holmes presented more than thirty witnesses in four days of testimony about Galloway’s character and background, describing to the jury how the former Army veteran “snapped” following the detoriation of his relationship with Nam. Defense attorneys presented mitigating evidence on Galloway's harsh upbringing and his life in the Army, followed by a career in microchip manufacturing. Denver public defender Daniel King, one of Galloway's attorneys, said Galloway was an otherwise law-abiding person who tragically lost control. “Mr. Galloway is not just the worst thing that he’s done,” King said. “He’s committed many acts of kindness, friendship, service, love and duty.” After five hours of deliberation, the jury found that the mitigating evidence in the case outweighed aggravating evidence and sentenced Galloway to life. Colorado juries had previously rejected death sentences for Holmes, who killed twelve people in a mass shooting, and Dexter Lewis, who fatally stabbed five people in a Denver bar. “Once again, a jury has told the government that seeking the death penalty is a waste of everyone’s time,” said Phil Cherner, a retired attorney and chairman of the board for Coloradans for Alternatives to the Death Penalty. Colorado has not imposed a death sentence since 2010, and has not executed a prisoner since 1997. Governor John Hickenlooper declared a moratorium on executions in 2013.

Life Plea in Police Killing Highlights Turbulence Over Philadelphia Death-Penalty Reform

Two men charged with killing Philadelphia Police Sgt. Robert Wilson III have been sentenced to life without possibility of parole, plus an additional term of 50 to 100 years, as prosecutors in one of the nation’s largest death-penalty counties agreed not to seek the death penalty in exchange for the defendants’ guilty pleas. Philadelphia District Attorney Larry Krasner (pictured) appeared in court on June 25 to personally explain the rationale behind the plea deal that ensures brothers Carlton Hipps and Ramone Williams will spend the rest of their lives in jail. Krasner told the court that the mothers of Sgt. Wilson’s two young children “do not want the death penalty” and that the plea deal would “minimize the re-traumatization” that would occur if they were exposed to a capital trial and lengthy appeals. Krasner said “[t]he death penalty in Pennsylvania is not what people think it is. The reality is people are not executed in Pennsylvania. They die in custody on death row.” The plea deal drew highly publicized criticism from the Philadelphia Fraternal Order of Police and other members of Wilson's family who wanted the death penalty to be pursued. It also provoked opposition from activists who said that Krasner’s use of the death penalty as leverage for the guilty pleas violated his campaign promise never to seek death sentences. The Philadelphia lodge of the FOP—who, along with former prosecutors who were fired from or left the DA’s office, have engaged in a prolonged public relations war against Krasner’s proposals for criminal-justice reform—called the plea deal “despicable.” On social media, it urged its members to attend the sentencing to “show support” for the Wilson family. Krasner said that the mothers of Wilson’s children had received threatening messages, which they believed were from the FOP, pressuring them to ask Krasner to seek the death penalty. Only family members who opposed the deal came to the court hearing. Krasner’s decision not to seek the death penalty comes in the wake of a twenty-year decline in Philadelphia’s use of capital punishment. The city imposed 99 death sentences in the 1990s, 21 in the first decade this century, and fewer than one every other year in the 2010s. Nearly 150 death sentences imposed in the city since the 1970s have been overturned, and there has been only a single execution. After highlighting the high cost of capital punishment, Krasner said, “A choice to waste money may be a choice to endanger police officers. And frankly, if you really want to get down to it, when did the death penalty prevent this outcome? The death penalty has not stopped it here. The death penalty has not stopped it in the past. And, every bit of scientific evidence indicates that it’s not going to stop it in the future.” A Death Penalty Information Center analysis of FBI murder data has shown that over the last three decades, police officers have been killed at a rate that is 1.37 times higher in states that currently have the death penalty than in states that have long abolished it.

Georgia Supreme Court Hears First Death-Penalty Appeal in Two Years Amidst Sharp Decline in Death Sentences

In the midst of a sharp decline in death sentences in the state, the Georgia Supreme Court on June 4 heard a direct appeal in a capital case for the first time in two years. In March 2018, Georgia reached the four-year mark since it had last imposed a death sentence, a dramatic change for a state that once handed down 15 death sentences in a single year. The decline in Georgia's death penalty exemplifies broader national death-penalty trends. In 1987, when Georgia handed down those 15 death sentences, 288 people were sentenced to death across the country. Thirty years later, in 2017, Georgia was completing its third consecutive calendar year with no death sentences, and the national total was just 39. Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia, credits the public's preference for life without parole (LWOP) sentences, saying the availability of LWOP has made a "huge difference." "[W]hen you sit down with victims’ families and discuss the process of a death-penalty case with all the pretrial hearings, then the years of appeals that follow, I have found that families like the finality of life without parole. It lets them get on with their lives," he said. Other prosecutors have found that the reluctance of juries to impose death sentences has made them less likely to seek death. Gwinnett County District Attorney Danny Porter called it "a self-fulfilling prophesy," noting, "As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort." The Georgia capital defender office's early intervention program has also reduced the number of death sentences by presenting prosecutors with reasons to decapitalize a case and reaching plea deals before a trial begins. Jerry Word, who leads that office, said, "The average time to resolve a case in early intervention has been less than eight months. The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county." Although prosecutors are seeking and juries imposing fewer and fewer death sentences, Georgia has continued to carry out controversial executions of defendants who likely would not be sentenced to death today. These include the December 2015 and March 2018 executions of Brian Keith Terrell and Carlton Gary, despite evidence that they may have been innocent; the May 2018 execution of Robert Earl Butts, Jr., although no Georgia jury has sentenced any defendant to death in the past decade in a case like his that involved a single victim and only one aggravating circumstance; executions of several men whose equally or more culpable co-defendants received lesser sentences; and prisoners who were intellectually disabled. The U.S. Supreme Court also has ruled against Georgia in three capital cases since 2016, Foster v. Chatman, involving race discrimination in jury selection; Tharpe v. Sellers, involving a juror who said he doubted whether black people had souls; and Wilson v. Sellers, which presented a procedural habeas corpus issue.

NEW RESOURCES: BJS Releases “Capital Punishment, 2016”

The nation's death rows continue to shrink more rapidly than new defendants are being sentenced to death, according to the Bureau of Justice Statistics (BJS) statistical brief, "Capital Punishment, 2016," released April 30, 2018. (Click image to enlarge.) The statistical brief, which analyzes information on those under sentence of death in the United States as of December 31, 2016, contains official government figures documenting continuing declines in executions, new death sentences, and death-row populations across the U.S. BJS reports that 2,814 prisoners remained under sentence of death in 32 states and the federal system at the end of 2016, representing a decrease of 58 prisoners and a 2% decline in the U.S. death-row population in 2016. It was the sixteenth consecutive annual decrease in the number of prisoners under sentence of death in the U.S., down 787 (22%) since the year-end high of 3,601 on December 31, 2000. BJS tracks the status of death-row prisoners from the date they are admitted to a state or federal correctional facility on capital charges, not the date they were actually sentenced. According to BJS, 32 prisoners were admitted to state or federal death rows in 2016. (DPIC uses a slightly different counting method that reported 31 new death sentences imposed in 2016.) The BJS data indicates that the decline in the size of death row is attributable to factors other than execution. BJS reports that 70 prisoners were removed from death row in 2016 by means other than execution, such as exoneration, the reversal of a conviction or death sentence, commutation, or death by other causes, as compared with 20 who were executed. Nineteen prisoners were reported to have died on death rows of natural causes; 11 prisoners were removed from Connecticut's death row when its state supreme court declared its death-penalty statute unconstitutional; and 40 were released from death rows when their convictions and/or death sentences were overturned in the courts.

DPIC Study Shows 97% of Prisoners Who Overturn Pennsylvania Death Sentences Are Not Resentenced to Death

In Pennsylvania, death-row prisoners whose convictions or death sentences are overturned in state or federal post-conviction appeals are almost never resentenced to death, a new Death Penalty Information Center study has revealed. Since Pennsylvania adopted its current death-penalty statute in September 1978, post-conviction courts have reversed prisoners' capital convictions or death sentences in 170 cases. Defendants have faced capital retrials or resentencings in 137 of those cases, and 133 times—in more than 97% of the cases—they received non-capital dispositions ranging from life without parole to exoneration. Only four prisoners whose death sentences were reversed in post-conviction proceedings remain on death row. Philadelphia cases accounted for more than half of the post-conviction reversals (86 cases) and 54% of the non-capital case dispositions (72 cases). DPIC reviewed all of the cases in which Pennsylvania death-row prisoners have won post-conviction relief. Contrary to the often-expressed perception that most death-penalty reversals occur in federal courts, state courts reversed twice as many Pennsylvania capital convictions or death sentences as did their federal counterparts. Pennsylvania death-row prisoners obtained state post-conviction relief from their convictions or death sentences—and, in some instances, both—in 116 cases. State courts granted 18 post-conviction petitioners new trials and vacated 108 death sentences. Of the vacated sentences, the state courts granted 91 new sentencing hearings, and declared prisoners constitutionally ineligible for the death penalty in 17 cases. Life sentences were imposed in fifteen cases as a result of a prisoner's intellectual disability and in two cases because the prisoner had been younger than age 18 at the time of the offense. Federal courts granted Pennsylvania capital habeas corpus petitioners relief from their convictions and/or death sentences in 58 cases, awarding new trials in 24 cases and new sentencing hearings in 44. Three death-row prisoners who were granted penalty-phase relief in state court later overturned their convictions in federal court. One prisoner who was granted a new penalty-phase trial by the federal courts also overturned his conviction after the case was remanded back to the state courts. The DPIC study found that 86% of the reversed death-penalty cases  concluded with a non-capital resentencing to life without parole. Those included 89 cases resulting from sentencing pleas or prosecutorial decisions to drop the death penalty, 12 capital sentencing retrials that resulted in life sentences, and the 17 cases in which defendants were declared constitutionally ineligible to face the death penalty. Two formerly death-sentenced prisoners—Nicholas Yarris and Harold Wilson—were exonerated, and a third, Frederick Thomas, died on death row while Philadelphia prosecutors appealed a trial judges' ruling that new evidence presented in the post-conviction proceedings established that no jury would have convicted him. Thirteen prisoners—including several widely considered to be innocent—pled guilty or no contest to lesser murder charges and were sentenced to time served or to terms of years. Six have completed their sentences and two others have been released on parole. The DPIC study found that the odds were 33.25 to 1 against a prisoner who won post-conviction relief remaining on death row. Six defendants were resentenced to death, but two of those death sentences were later overturned and the defendant resentenced to life without parole. The remaining four death sentences are still on appeal. Calling Pennsylvania's death-penalty system "riddled with flaws, ...error prone, expensive, and anything but infallible," Govenor Tom Wolf in February 2015 imposed a moratorium on executions in the Commonwealth. The state has not carried out an execution since 1999.

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