Sentencing

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.

Utah Prosecutor Drops Death Penalty in Prison Killing After Corrections Officials Withheld Evidence

A Utah judge has excoriated the Utah Department of Corrections for practices he called “sneaky” and “deceitful” and a state prosecutor has dropped the death penalty after learning that state prison officials had withheld nearly 1,600 pages of prison records from a defendant facing capital charges in a prison killing. Despite a court order to produce all prison records, the department had failed to disclose medical and mental health records detailing psychiatric medication Steven Douglas Crutcher (pictured, right) had been receiving in the months before he killed his prison cellmate. On March 28, 2018, following disclosure of the records, Sanpete County Attorney Kevin Daniels (pictured, left) withdrew the state’s notice to seek the death penalty and Judge Wallace Lee sentenced Crutcher to life. Preparing for an April 9 capital sentencing hearing, the defense learned in mid-February that the department had withheld medical and mental health records that Crutcher’s lawyer, Edward Brass, said “went to the heart” of the defense’s case. Brass alerted Daniels to the prison’s violation of the court order and Daniels, saying he was “irate” about the prison's misconduct, withdrew the death penalty from the case. “I hold myself to the highest ethical standard,” he said, “and any withholding of information is an affront to justice. The whole concept of justice is that you put all the evidence, all the cards on the table, and if you go where the evidence leads you, it’s a just result.” “This could have been a disaster,” Brass told reporters. “If it wasn’t for the integrity of the county attorney, it would have been a disaster.” Judge Lee said he was “beyond angry” over the department’s behavior. “This was totally wrong and makes me doubt the credibility of everything I hear about the Department of Corrections,” he said. In a statement, the department blamed its failure to produce the records on a “misinterpretation” of Judge Lee’s October order, but defense lawyers said medical doctors at the prison had been so difficult to work with that one doctor even refused to tell them what medical school he had attended. The judge questioned how the department could have misunderstood an order that had directed it to produce Crutcher’s “entire file,” including all mental health records. “That is something I would expect from Russia or North Korea, not a society like we have under the Constitution,” Lee said. “It’s got to stop. I’ve worried that if it’s happened in this case, it’s happening in other cases out there.” A prison spokesperson told the media that the department has retrained its clinical services records staff on responding to court orders and records requests and has started reviewing other cases to determine whether court orders had been responded to appropriately. Utah Association of Criminal Defense Lawyers executive director Stewart Gollan said the department also has been uncooperative in releasing prisoners’ medical records in civil rights cases.

NEW RESOURCES: University of Virginia Interactive Database Maps the Modern Death Penalty

 The University of Virginia School of Law has created a new interactive web resource (click on map) that allows researchers and the public to visually explore death-sentencing practices in the United States from 1991 through 2017. The interactive map provides county-level data on death sentences imposed across the United States, drawing from a new database created by University of Virginia Law Professor Brandon Garrett (pictured) for his recent book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice. The interactive map, which is a web supplement to the book, permits users to view where and how many death sentences were imposed in the U.S. each year, and to contrast and compare sentencing patterns over time in states, counties, and the U.S. as a whole. Using a slider to view chronological shifts in sentencing patterns, the map illustrates how death sentences have declined nationwide and become increasingly isolated to a few outlier counties. “This is the first resource to map out modern death sentencing in the United States,” Garrett said. “The mapping vividly shows how geographically isolated death sentencing has become.” The data forms the backbone of End of Its Rope, in which Garrett analyzes the dramatic decline in the use of the death penalty over the last 25 years. The publicly available database contains information on more than 5,000 death sentences, allowing researchers and lawyers to analyze patterns and trends. “Several researchers, in addition to those of us at UVA, have already made use of the data, and we hope that more do so in the future,” Garrett said. Garrett worked with a UVA Law librarian, law students, and undergraduates to compile the data from government records, court rulings, and other sources.

Study Analyzes Causes of “Astonishing Plunge” in Death Sentences in the United States

Multiple factors—from declining murder rates to the abandonment of capital punishment by many rural counties and substantially reduced usage in outlier counties that had aggressively imposed it in the past—have collectively led to an “astonishing plunge” in death sentences over the last twenty years, according to a new study, Lethal Rejection, published in the 2017/2018 Albany Law Review. Using data on death-eligible cases from 1994, 2004, and 2014, Drake University law professor David McCord and Niagara University criminal justice professor Talia Roitberg Harmon examined a range of factors to determine what caused the more than 75% reduction in death sentences in the U.S. between 1994 and 2014. (Click image to enlarge.) The authors found that just over half the decline could be attributed to a reduction in the number of potentially death-eligible murders, as a result of a combination of lower murder rates, Supreme Court decisions making murders committed by intellectually disabled offenders and offenders aged 17 or younger ineligible for the death penalty, and the abolition of the death penalty by six states. The rest of the decline, they said, was attributable to subjective decisions by prosecutors and sentencers, a factor they called “changing perceptions of death-worthiness.” Murders in the 37 states that authorized the death penalty in 1994 fell from 19,250 that year to 12,440 in 2014—a 35.4% decline. However, death sentences dropped by more than double that rate, from 310 to 73—a 76.5% decline. McCord and Harmon also attempted to identify factors that contributed to prosecutors’ and sentencers’ perceptions of death worthiness, which accounted for nearly half of the death-sentencing decline. The addition of life without parole as a sentencing option did not, they said, have a significant impact in lowering death sentences, except in Texas. Rather, they found that death sentences were being sought and imposed at lower rates in less aggravated murder cases, in cases with multiple perpetrators, and against defendants under age 21. They also found two types of significant geographical effects: death-sentencing dropped significantly in low-population counties across the country and in five of the nation’s highest volume death-sentencing counties (Harris, TX; Cook, IL; Pima, AZ; Philadelphia, PA; and Miami-Dade, FL). While the researchers did not report how many fewer death sentences were imposed in these counties in 2014, they described the decline as having an “outsized” effect on the national total. They conclude, “The decline in death sentencing in the United States from 1994 has been relatively rapid, quite steep, and is continuing—from the endpoint of our dataset, death sentences declined from 73 in 2014 to 49 in 2015; and in 2016 only 31 death sentences were imposed. The American death penalty seems like an ever-crankier version of the Cheshire Cat: it is grudgingly disappearing, leaving behind only its frown.”

After Supreme Court Denies Them Relief, Pennsylvania Death-Row Prisoners Resentenced to Life

Two former Pennsylvania death-row prisoners, whose death sentences were overturned by federal courts after the United States Supreme Court had ruled against them, have been resentenced to life without parole. On February 28, 2018, Scott Blystone (pictured) was resentenced to life by the Fayette County Court of Common Pleas in southwestern Pennsylvania, 34 years after being sentenced to death and 27 years after the U.S. Supreme Court heard his case. Two days later, on March 2, Joseph Kindler was also resentenced to life after the Philadelphia District Attorney's Office agreed to drop the death penalty in his case. Nearly 35 years had passed since Kindler had been sentenced to death and eight since the Supreme Court had ruled against him. Blystone's case was the first from Pennsylvania to challenge the state's law requiring the jury to sentence a defendant to death if it finds any aggravating circumstance present, but no mitigating circumstances. Blystone had been represented by a part-time public defender who had been practicing law for less than a year and had never tried a homicide case. The lawyer presented no defense at the guilt stage of trial and had no evidence to present in the penalty phase except for testimony from Blystone's parents. When Blystone refused to have his parents take the stand to beg for his life, the lawyer presented no case in mitigation. Even then, the jury asked the court whether it had to impose the death penalty if it found no mitigating evidence. The court answered in the affirmative, and the jury sentenced Blystone to death. In 1990, a divided U.S. Supreme Court upheld Pennsylvania's death-penalty statute by a 5-4 vote. The federal district court subsequently overturned Blystone's death sentence because of his lawyer's failure to investigate and present mitigating evidence of Blystone's brain damage, mental health diagnoses, and extreme mental and emotional disturbance at the time of the murder. Kindler also overturned his death sentence in the federal courts, after the Pennsylvania state courts had refused to consider Kindler's constitutional challenges to his conviction and sentence because he had escaped to Canada. The federal courts found multiple constitutional violations in Kindler's case, including that his lawyer had failed to investigate and present available mitigating evidence and that the jury had been given an instruction that unconstitutionally limited its ability to consider the mitigating evidence that had been presented. In a unanimous U.S. Supreme Court decision in 2009 dealing with federal review of state procedural rules, the Court overturned the grant of a new penalty hearing and sent the case back to the federal court of appeals. The appeals court again ruled in Kindler's favor, and this time the Supreme Court let that decision stand. 

New Polls in Two Florida Counties that Heavily Use the Death Penalty Find Voters Prefer Life Sentences Instead

Recently released poll results from two Florida counties that have heavily used the death penalty suggest that voters actually prefer life-sentencing options instead. Polls conducted by North Carolina-based Public Policy Polling on January 22-23, 2018, indicate that three-quarters of Miami-Dade County respondents preferred some form of life imprisonment rather than the death penalty as the punishment for people convicted of murder, and two-thirds of Pinellas County respondents preferred one of the life-sentencing options. The margin was more than 3 to 1 in Miami-Dade (75% to 21%) and more than 2 to 1 in Pinellas (68% to 30%). Of Miami-Dade respondents who chose a life-sentencing option, a plurality (40%) preferred life without parole, plus restitution; 18% preferred life with the possibility of parole after 40 years; and 17% preferred life without possibility of parole. In Pinellas, 48% preferred life without parole plus restitution; 12% preferred life without parole; and 8% chose life with parole eligibility after 40 years. Sixty-eight percent of Miami-Dade respondents said they would support a decision by their local prosecutor to reduce or eliminate the use of the death penalty, compared to 25% who opposed. In Pinellas, 64% said they would support reducing or eliminating the use of the death penalty, as opposed to 32% against. Pinellas/Pasco State Attorney Bernie McCabe reportedly has filed notice that he will seek the death penalty in 15 pending cases and six re-sentences, with nine death-penalty trials already scheduled for 2018. Floridians for Alternatives to the Death Penalty released the Pinellas County poll on February 27 and the Miami-Dade poll on March 1. The organization's director, Mark Elliott, said “[t]he survey results make clear that the state attorney’s office is ignoring the will of the overwhelming majority of Pinellas County constituents who prefer life sentences for those convicted of murder." Elliott also said that "[e]xpensive death penalty trials do nothing to prevent violent crime, protect law enforcement, or help victims’ families in meaningful ways, and mistakes are also all-too-common.” DPIC reported in 2013 that both Miami-Dade and Pinellas were among the 2% of counties that accounted for more than half of all death-row prisoners and executions in the United States. Both were among the Fair Punishment Project's list of 16 outlier counties that imposed five or more death sentences between 2010 and 2015—more than 99.5% of all counties in the country.

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