Sentencing

Nevada Prisoner Whose Case Confirmed Unconstitutionality of Mandatory Death Sentences Dies 

Raymond Wallace Shuman (pictured), whose case led to a 1987 U.S. Supreme Court decision affirming the unconstitutionality of mandatory death sentences, has died in a Nevada prison at age 83. Shuman, one of the longest-incarcerated prisoners in Nevada history, was serving a life sentence for a 1958 murder when he was convicted of killing a fellow prisoner in 1973. At that time, Nevada law mandated the death penalty for life-sentenced prisoners convicted of another first-degree murder. Then, in 1976, the U.S. Supreme Court issued a series of decisions upholding the constitutionality of capital punishment, but overturning mandatory death-penalty statutes in North Carolina and Louisiana. The 1976 cases established an individualized-sentencing requirement pursuant to which no one could be sentenced to death without first having the opportunity to present reasons to spare his or her life. Shortly thereafter, Nevada repealed its mandatory death sentencing law. Shuman, who was the first prisoner to face execution in Nevada after the 1976 rulings, challenged the constitutionality of his sentence as violating the Eighth and Fourteenth Amendments. The Nevada Supreme Court upheld Shuman's death sentence. Shuman's lawyers then presented the issue to the Nevada federal courts, which declared the state's mandatory capital-punishment statute unconstitutional. The prosecution appealed, arguing that the Supreme Court's 1976 decisions had left open the question of whether the death penalty could be mandated in certain extremely narrow classes of cases such as prison killings by life-sentenced prisoners. The U.S. Supreme Court agreed to review the case and, in a 6-3 ruling in Sumner v. Shuman, issued on June 22, 1987, the Court declared the statute unconstitutional. In his opinion for the Court, Justice Harry Blackmun wrote: "Although a sentencing authority may decide that a sanction less than death is not appropriate in a particular case, the fundamental respect for humanity underlying the Eighth Amendment requires that the defendant be able to present any relevant mitigating evidence that could justify a lesser sentence." That evidence included the nature of the defendant's prior conviction—Blackmun noted that Shuman had not been the triggerman in the 1958 murder—the defendant's background, life history, upbringing, and mental health, and any mitigating aspect of the circumstances of the offense. Shuman died around 2:25 p.m. on February 4 at the Carson Tahoe Regional Medical Center in Carson City, according to the Nevada Department of Corrections. 

Florida Denies New Sentencing Hearings to More than Thirty Prisoners, Most Unconstitutionally Sentenced to Death

In three days of bulk decision-making, the Florida Supreme Court has denied new sentencing hearings to more than thirty death-row prisoners, declining to enforce its bar against non-unanimous death sentences to cases that became final on appeal before June 2002. At least 24 of the prisoners who were denied relief had been unconstitutionally sentenced to death after non-unanimous jury sentencing recommendations, including three prisoners—Etheria Verdell JacksonErnest D. Suggs, and Harry Franklin Phillips—with bare majority death recommendations of 7-5. The Florida court adopted June 24, 2002 as its cutoff date for enforcing its decision because that was when the U.S. Supreme Court decided Ring v. Arizona, an Arizona case establishing that the right to a jury trial entitles a capital defendant to have a jury find all facts that are necessary for a death sentence to be imposed. In January 2016, the U.S. Supreme Court ruled in Hurst v. Florida that Florida's death-penalty statute, which reserved penalty-phase factfinding for the judge, violated Ring. Later, also in Hurst's case, the Florida Supreme Court ruled that a capital defendant's right to a jury trial also required a unanimous jury vote for death before the trial judge could impose a death sentence. That decision potentially invalidated more than 375 Florida death sentences. However, in December 2016, the Florida Supreme Court ruled that Ring had announced a new legal right and that it would not apply Hurst to cases that had already completed their direct appeal before Ring was decided. The court issued opinions declining to apply Hurst in ten death-penalty cases on January 22, another ten on January 23, and a third set of ten on January 24. The court also issued unpublished orders denying relief in some other cases. Still more decisions are expected. These rulings reiterate the court's decision to not grant relief to prisoners who were unconstitutionally sentenced to death prior to Ring. On August 10, 2017, the court, by a 6-1 vote, upheld the death sentence imposed on James Hitchcock, despite his being unconstitutionally sentenced to death following a non-unanimious sentencing recommendation by the jury. In dissenting, Justice Barbara J. Pariente wrote: "To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process." In 80% of the new opinions, juries had not unanimously recommended death, but the prisoners' appeals had been completed before Ring was decided. In four cases, the appeals of unconstitutionally death-sentenced prisoners became final in 2001. Steven Maurice Evans's appeal became final in March of 2002 and James Ford's unconstitutional death sentence became final in May 28, 2002, less than a month before Ring was decided. In the six cases in which prisoners had unanimous jury recommendations for death, the court declined to review other potential violations of Hurst and whether instructions diminishing the jury’s sense of responsibility may have unconstitutionally affected the verdict. Among those whose appeals were denied on January 22, 2018 is Eric Scott Branch, who was unconstitutionally sentenced to death following a 10-2 jury recommendation for death in 1997. Branch is set to be executed on February 22. According to a Death Penalty Information Center analysis of Florida's death-row prisoners who have non-unanimous jury recommendations and whose convictions became final post-Ring, 153 prisoners on Florida's death row are entitled to resentencing. Of them,123 (or 80.9%) have already obtained relief. At least eighteen prisoners who obtained relief under Hurst have since been resentenced to life, while two prisoners who initially had non-unanimous sentencing recommendations have been resentenced to death. In 2017, Florida executed two prisoners—Marc Asay and Michael Lambrix—after denying them relief despite their unconstitutional non-unanimous death sentences. [UPDATE:  The Florida Supreme Court issued opinions denying relief in ten additional death-penalty cases on January 26, bringing the total of cases in which it declined to apply the constitutional protections announced in Hurst v. Florida and Hurst v. State during the past week to at least 41.]  

Missouri Judge Imposes Second Non-Unanimous Death Sentence in Four Months

For the second time in four months, a Missouri judge has imposed a death sentence after a capital-sentencing jury did not reach a unanimous sentencing decision. Greene County Circuit Judge Thomas Mountjoy sentenced 49-year-old Craig Wood (pictured) to death on January 11 for the February 2014 killing of 10-year-old Hailey Owens. Wood was convicted of first-degree murder in November 2017, but the jury—empaneled from out-of-county jurors as a result of extensive pretrial publicity—could not reach a unanimous decision on whether to sentence Wood to life without possibility of parole or death. In more than 70 percent of states that have the death penalty, this would have resulted in Wood being sentenced to life. A DPIC analysis of capital-sentencing statutes in effect in the 31 death-penalty states and the federal government found that 22 states, plus the federal government mandate an automatic life sentence if a jury cannot reach a unanimous sentencing verdict. While seven states consider a non-unanimous sentencing vote a "hung jury," Missouri and Indiana stand alone in removing the sentencing decision from the jury following a deadlock and transferring fact finding and decision-making authority to the judge. The jury in Wood's case reportedly split 10-2 in favor of the death penalty and Wood's lawyers had filed a motion challenging the constitutionality of Missouri's hung-jury death-sentencing procedure. That motion argued that Wood's right to a jury trial included a requirement that a death sentence could not be imposed without a unanimous jury vote. In 2016, the Florida Supreme Court and the Delaware Supreme Court struck down provisions in their death-penalty laws permitting judges to impose death sentences based upon non-unanimous jury recommendations for death. Alabama still permits that practice if ten jurors have voted for death. No jury has sentenced anyone to death in Missouri since 2013. However, on October 6, 2017, St. Charles County Judge Kelly Wayne Parker disregarded an 11-1 jury vote in favor of a life sentence and imposed the death penalty against 50-year-old Marvin Rice, a former Dent County deputy sheriff and state correctional officer. Rice was the only person sentenced to death in Missouri in 2017

Pledging No Death Penalty, Larry Krasner Sworn In As Philadelphia's District Attorney

Saying “[a] movement was sworn in today,” long-time civil-rights lawyer Larry Krasner (pictured)—who pledged to end Philadelphia's use of the death penalty—took the oath of office on January 2 as district attorney in a county that only five years ago had the third largest death row of any county in the country. Krasner's inaugural address put a face on the “[t]ransformational change in criminal justice" he had called for during the election, saying it was time to begin “trading jails—and death row—for schools,” “jail cells occupied by people suffering from addiction for treatment and harm reduction,” and “division between police and the communities they serve for unity and reconciliation.” Krasner's election has drawn national attention, as social-justice activists focus on new strategies to bring about social change. The Los Angeles Times placed Krasner among "a growing list of district attorneys around the country ... who have declared that their role isn’t simply to prosecute, but to protect defendants from the excesses of the criminal justice system." The American Prospect described "[t]he relatively quick swing from a death penalty devotee to a crusading reformer at the helm of a major American city’s DA office [as] both a distillation of a long-brewing shift in the politics of crime—away from the standard tough-on-crime bromides and toward a smarter approach to justice—and emblematic of a new recognition from progressives that electing allies into DA offices could be one of the most effective ways to reform the system from the inside." Since 2015, "reform" prosecutors have been elected to replace prosecutors in counties historically known for their aggressive use of the death penalty, including Harris (Houston), Texas; Duval (Jacksonville), Orange (Orlando), and Hillsborough (Tampa), Florida; Caddo Parish (Shreveport), Louisiana; and Jefferson (Birmingham), Alabama. But Clarise McCants, campaign director for the racial-justice organization, Color of Change, is eyeing upcoming district attorney races in 2018, saying “[t]he small number of [reform-minded] prosecutors we have elected so far is nothing compared to the kind of impact we could have.” Krasner takes the reins of an office most recently headed by Ronald CastilleLynne Abraham, and Seth Williams. Castille served as district attorney from 1986-1991, obtaining 45 death sentences and then participating in appeals in those cases after being elected to the Pennsylvania Supreme Court. Abraham was dubbed “America's Deadliest DA,” obtaining 108 death sentences in her 19 years as district attorney between 1991 and 2009. She was replaced by Williams, who resigned after being convicted in 2017 of corruption charges. Krasner's election culminates two decades of dramatically declining death penalty use in Philadelphia. Death sentences, which averaged 9.9 per year in the 1990s, have fallen to an average of fewer than one per year this decade. 

Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection

The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky  by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.

DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation

Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)

Report: Deterrence is Based on Certainty of Apprehension, Not Severity of Punishment

The certainty of apprehension, not the severity of punishment, is more effective as a deterrent. So argues Daniel S. Nagin (pictured), one of the nation’s foremost scholars on deterrence and criminal justice policy, in his chapter on Deterrence in the recently released Academy for Justice four-volume study, Reforming Criminal Justice. Reviewing deterrence scholarship since the 1960s and five leading studies from the past two decades, Dr. Nagin concludes that evidence supporting a deterrent effect from "the certainty of punishment is far more convincing and consistent than for the severity of punishment." Moreover, he writes, "[t]he certainty of apprehension, and not the severity of the ensuing legal consequence, is the more effective deterrent." Dr. Nagin is the Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon’s Heinz College of Information Systems and Public Policy and previously chaired the Committee on Deterrence and the Death Penalty for the National Research Council of the National Academies of Science (NAS). In that capacity, he served as co-editor of the 2012 National Academies report, Deterrence and the Death Penalty. Nagin explains in his Academy for Justice chapter that although "certainty must result in a distasteful consequence" for the punishment to be a deterrent, "[t]he consequences need not be draconian, just sufficiently costly, to deter the prohibited behavior." In making policy judgments about the justification for increasingly severe sanctions, he says, "the deterrent return to increasing an already long sentence appears to be small, possibly zero." The 2012 NAS Committee found that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates" and recommended that those deterrent studies "not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide." A February 2015 study by the Brennan Center for Justice of the dramatic drop in crime in the U.S. in the 1990s and 2000s found that the death penalty had no effect on the decline in crime

NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 

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