Studies

New Podcast: Authors of Tennessee Death-Penalty Study Discuss Arbitrariness

The latest edition of Discussions with DPIC features H.E. Miller, Jr. and Bradley MacLean, co-authors of a recent study on the application of Tennessee's death penalty. Miller and MacLean describe the findings from their article, Tennessee's Death Penalty Lottery, in which they examined the factors that influence death-penalty decisions in the state. Based on their survey of thirty years of homicide cases, they found that whether a death sentence is imposed is influenced far less by the circumstances of the offense than by arbitrary factors such as geography, race, and the poor quality of defense representation. MacLean says, "It operates just like a lottery. There's no rationale, there's no rhyme or reason for why an infinitesimally small number of defendants are sentenced to death and even a much smaller number are actually executed, as compared to all the defendants who are convicted of first-degree murder." The authors collected data on more than 2,500 first-degree murder cases in Tennessee from 1977-2017, and found that about 3.5% of first-degree murder defendants have been sentenced to death and fewer than 0.3% have been executed. Those few who are selected for the death penalty, though, do not represent the worst of the worst, with about 90% of multiple-victim murders resulting in life sentences. "The bottom line is, the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes," MacLean said. In the podcast, the authors also discuss the litigation surrounding Tennessee's method of execution, saying, "If the state can't get their method of execution right, then how can we expect them to get anything else right about the system?" They conclude, "The whole point of our study was to look at whether we have properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman [v. Georgia, which declared all U.S. death-penalty statutes unconstitutionally arbitrary in 1972]. Our conclusion is that our system is no less arbitrary, it is just as arbitrary, as the systems that existed before Furman was decided. ...That's why we believe that our system is clearly unconstitutional."

STUDY: The Death Penalty in Tennessee is “a Cruel Lottery”

A new study of Tennessee's death penalty concludes that the state's capital-punishment system is "a cruel lottery" that is "riddled with arbitrariness." The study, published in the summer 2018 issue of the Tennessee Journal of Law and Policy, examined every first-degree murder case in Tennessee since 1977 to determine whether the state had redressed the arbitrariness that led the U.S. Supreme Court to declare the nation's death-penalty laws unconstitutional in 1972. In their article, Tennessee's Death Penalty Lottery, lawyers H.E. Miller, Jr., who conducted the study, and Bradley A. MacLean write that the odds "are close to nil" that a person who was supplied with a description of the 2,514 first-degree murder cases prosecuted in Tennessee in the last forty years could identify the 86 cases that have resulted in death sentences sustained on appeal or the six cases that have resulted in executions. The facts of the crime, they found, did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case. The study found that more Tennessee death sentences have been overturned in the courts — 106 — than have been sustained, and many of the sustained cases are still under post-conviction appeal. Moreover, the study found "a sharp decline" in death sentences imposed over the past twenty years. In the four-year period from July 1989 through June 1993, there were 282 first-degree murder cases in Tennessee, with 38 trials resulting in death sentences; from July 2009 through June 2013, 284 first-degree murder cases produced six death sentences. Tennessee has imposed only one new death sentence since 2013. The authors concluded that "[t]he death penalty system as it has operated in Tennessee over the past 40 years, and especially over the past ten years, is but a cruel lottery, entrenching the very problems that [the Supreme Court] sought to eradicate." The study was released shortly before Tennessee is scheduled to perform its first execution in nearly nine years. The state plans to execute Billy Ray Irick on August 9, 2018, using a three-drug protocol (midazolam, vecuronium bromide, and potassium chloride) that has been implicated in past botched executions in other states. More than 30 death-row prisoners are suing the state, arguing that the protocol violates the Eighth Amendment ban on cruel and unusual punishment. Even Tennessee's own corrections staff has raised concerns about the plan. An unidentified state employee who was working to obtain lethal injection drugs wrote in an email to state officials: "Here is my concern with Midazolam. Being a benzodiazepine, it does not elicit strong analgesic effects. The subjects may be able to feel pain from the administration of the second and third drugs. Potassium chloride, especially." The state's plan to use compounded drugs has also drawn criticism, in part because drug-production by compounding pharmacies is not subject to the same regulatory oversight as drugs produced by major manufacturers. In a trial that began July 9, lawyers for the prisoners argued that medical evidence will show that Tennessee's three-drug combination is the equivalent of chemical waterboarding, being buried alive, or being exposed to liquid fire or sarin gas. Prosecutors have argued that to be unconstitutional, the state's execution method would have to amount to torture or be a gruesome practice such as disembowelment, beheading, or burning at the stake.

STUDY: Tennessee Could Save $1.4 Million Annually Ending Death Penalty for Severe Mental Illness

Tennessee could save an estimated $1.4–1.89 million per year by adopting a ban on capital punishment for defendants with severe mental illness, according to a new report by the American Bar Association Death Penalty Due Process Review Project. The report said a severe mental illness death-penalty exclusion “could result in cost savings [because] a subset of individuals who currently could face expensive capital prosecutions and decades of appeals would become ineligible” for capital prosecution. As a result, “their trials and appeals would be significantly truncated, while still resulting in guilty verdicts.” The study projected statewide costs based upon its review of the death-row population from Shelby County, Tennessee, the nation's 13th largest county death row, and the results of comprehensive cost studies from other jurisdictions. Based on the 67 death sentences imposed in Shelby County between 1977 and 2017, the study estimated that approximately 15% of death-row prisoners had been diagnosed with a severe mental illness, which includes schizophrenia, schizoaffective disorder, bipolar disorder, delusional disorder, or major depression. If the same percentage of death-sentenced prisoners across the state had severe mental illness, the study said, 28 prisoners would have been exempted from Tennessee’s death penalty since 1977. The report based its cost estimates on a 2008 Urban Institute cost study of Maryland’s death penalty—considered one of the most rigorous of the state death-penalty cost studies conducted across the country. That study found that death-penalty cases cost about $1.9 million more than non-capital murder cases. Using that estimate, the report said, eliminating the 28 capital prosecutions of severely mentally ill defendants would have saved Tennessee $54.8 million over the last 40 years, or an average of $1.4 million per year. Mental Health America estimates that 20% of death-row prisoners have serious mental illness, the report said, and using its estimate of the prevalence of severe mental illness, Tennessee’s average annual savings would be even higher, at $1.89 million. Because no data were available on capital prosecutions in which seriously mentally ill defendants were not sentenced to death, the report did not calculate the potential additional cost savings from decapitalizing those cases. Tennessee is one of several states considering a mental illness exemption from the death penalty, and was selected for the study because it provides detailed information on all first-degree murder cases since 1977. In 2017, former Tennessee Attorney General W.J. Michael Cody expressed his support for a mental illness exemption, saying, “[a]s a former Tennessee Attorney General, I understand how horrific these crimes are and how seriously we must take capital cases. ... But in light of our increased understanding of mental illness, I believe that for those with documented mental illness of the most severe form at the time of their crime, the maximum punishment should be life in prison without parole.”

Report Finds Systemic Flaws, Recommends Major Reforms in Pennsylvania Death Penalty

Pennsylvania’s death-penalty system is seriously flawed and in need of major reform, according to a report released June 25, 2018, by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. The bipartisan task force and advisory committee—which consisted of legislators, prosecutors, defense attorneys, police chiefs, judges, and victims’ advocates—began work in 2012 and examined 17 issues related to the Commonwealth’s death penalty. Their years-long examination of topics such as costs, bias, innocence, proportionality, mental illness and intellectual disability, quality of representation, and impact on victims' families resulted in numerous policy reform recommendations. Ultimately, however, the committee concluded that certain problems are intractable: “There is no way to put procedural safeguards in place that will guarantee with 100% certainty that the Commonwealth will not execute an innocent person,” the report states. To address disparities in the quality of capital representation, the report recommends creating a state-funded capital defender office, which would represent capital defendants both at trial and on appeal. It also recommended exempting people with serious mental illness from being sentenced to death and having the court determine in advance of trial whether a capitally-charged defendant is intellectually disabled and therefore exempt from the death penalty. State Senator Daylin Leach, who served on the current task force and has sponsored death-penalty repeal bills, said, “The report concludes that our death penalty system is very expensive and lacks a way to ensure that innocent people will not be executed. Further, too many people on death row are economically or intellectually disadvantaged. And finally, there is no substantial evidence that capital punishment actually deters violent crime.” Marc Bookman, a defense attorney and co-director of the Atlantic Center for Capital Representation, said, “Many people will conclude that having a death penalty in Pennsylvania simply doesn't make sense for moral, practical, or financial reasons. For those who still think it's worthwhile to keep it in place, the study documents the extensive work necessary to satisfy the constitutional requirements of fairness and due process, while minimizing the chances of error.” Pennsylvania District Attorney’s Association President John Adams attacked the report as “reflecting predetermined findings that restate the usual litany of opinions long-held by death penalty opponents and the majority of the commission’s members.” In a statement, he said: “Absent a broad perspective, intellectual honesty or a balanced approach to justice, the report will become nothing more than another political tool used in smear campaigns by those determined to dismantle the criminal justice system.” Governor Tom Wolf, who imposed a moratorium on executions in 2015, said he will review the report and its recommendations before taking action.

STUDY: Local Mississippi Prosecutors Struck Black Jurors at More than Four Times the Rate of Whites

A new study shows that the Mississippi District Attorney's office that has prosecuted Curtis Flowers for capital murder six times—striking almost all black jurors in each trial—has disproportionately excluded African Americans from jury service for more than a quarter century. Reviewing the exercise of discretionary jury strikes in 225 trials between 1992 and 2017, American Public Media Reports discovered that during the tenure of Mississippi's Fifth Circuit Court District Attorney Doug Evans (pictured) prosecutors have exercised peremptory strikes to exclude African Americans from jury service at nearly 4½ times the rate at which they struck white jurors. APM Reports collected and analyzed data on more than 6,700 jurors called for jury service in the the Fifth District. Its study—which was reviewed before its release by a statistics expert and two law professors who had conducted prior jury-strike studies—found that Fifth District prosecutors struck 50 percent of all eligible black jurors compared to only 11 percent of eligible whites. Looking at potentially race-neutral factors raised during juror questioning, APM Reports found that prosecutors were still far more likley to strike black jurors than similarly situated white jurors (click here to enlarge graph). Controlling for these factors, the study found that the odds prosecutors would strike a black juror were six times greater than the odds that they would strike a white juror. APM Reports prepared the study in connection with its acclaimed podcast series In the Dark, which this season focuses on the Flowers case. Evans' office has been scrutinized for alleged race-related abuses of powers during the course of Flowers' six trials for the murder of four furniture store employees. Flowers has consistently professed his innocence. In his first three trials, Flowers was convicted and sentenced to death by all-white or nearly all-white juries. In each of these cases, the state Supreme Court overturned the convictions and ordered new trials. Just before the second trial, Flowers' parents' house burned down. Shortly afterwards, his mother was told of a threat made by a white resident that, "If they let that n----- go, another house is going to burn." Jurors deadlocked in Flowers' fourth and fifth trials, split along racial lines. All the white jurors voted for death in both of those trials. Only one black juror served on the sixth jury, and Flowers was sentenced to death in that trial. Although it is unconstitutional to exclude jurors from service based on race, the practice is ubiquitous in many jurisdictions that heavily use the death penalty. Over the course of 332 criminal trials in CaddoParish, Louisiana in the decade from 2003-2012, prosecutors struck black jurors at more than triple the rate of other jurors, approximately the same disproportionate rate at which black jurors were struck in 35 cases resulting in death sentences in South Carolina in the fifteen years between 1997-2012. In 173 capital cases tried over a twenty-year period in North Carolina, and in more than 300 capital trials over more than two decades in Philadelphia, Pennsylvania, prosecutors struck black jurors twice as frequently as other jurors. Most recently, in Georgia, Johnny Gates, who was sentenced to death in Columbus, Georgia in 1977, has challenged his conviction with evidence that his prosecutors struck every black juror they could in the seven capital trials they prosecuted between 1976 and 1979, empaneling all-white juries in six of those cases. 

ANALYSIS: Research Supports Assertion that U.S. Death Penalty "Devalues Black Lives"

The Movement for Black Lives has called for abolishing the death penalty in the United States, asserting that capital punishment is a racist legacy of slavery, lynching, and Jim Crow that “devalues Black lives." A Spring 2018 article in the University of Chicago's philosophy journal Ethics, co-authored by Michael Cholbi, Professor of Philosophy at California State Polytechnic University and Alex Madva, Assistant Professor of Philosophy at Cal Poly Pomona, examines the philosophical underpinnings of those assertions and concludes that they are correct. In Black Lives Matter and the Call for Death Penalty Abolition, the authors examine "the two central contentions in the movement’s abolitionist stance"—that the death penalty as practiced in the United States wrongs Black communities as a whole, rather than just the individual Black defendants charged with capital murder or the particular Black victims whose murders were not capitally prosecuted; and that abolition of the death penalty in its entirety, rather than attempts at piecemeal reform, is "the most defensible remedy for this wrong." Cholbi and Madva review numerous 21st-century death-penalty studies and find that the data show two major classes of racial distinctions in American death-penalty practices: a White-victim preference in both prosecutorial choices to seek and jury verdicts to impose the death penalty and a sentencing bias against non-White defendants once a case has been designated as capital. Cholbi and Madva conclude that Black Americans are subject to a citizenship class that renders them vulnerable to both retributive and distributive injustice: retributive in the sense that individual Black capital defendants are empirically more likely to be subject to execution than defendants of other races and distributive in that that those who murder Black people are empirically less likely to be subject to execution than those who murder non-Black people. As a result of, in part, implicit racial biases that manifest at every level of the capital punishment system, Black capital defendants face the retributive injustice of being more likely to be sentenced to death than any other group. “Preexisting biases regarding blacks' proclivity toward and insusceptibility to violence that may otherwise remain dormant are galvanized when individuals are afforded the opportunity to render judgments regarding who ought to be executed for their crimes,” Cholbi and Madva write. In one shocking study cited by the pair, White respondents became more supportive of capital punishment when informed about the issue of racial bias in capital sentencing. Another study showed White members of a mock jury more likely to convict Black people and less likely to convict White people when informed that the maximum sentence possible was death as opposed to a life sentence. “Such results suggest that capital punishment is not just another arena infected with bias but instead represents a distinctive channel for racial discrimination” where anti-Black biases are "activate[d] and amplif[ied]." To not address the distinct and permeative nature of this discrimination, Cholbi and Madva write, “amounts to a form of societal or institutional recklessness.” Research supports the Movement for Black Lives' assertion that all Black people, not just individual Black capital defendants, are unjustly impacted by capital punishment’s systemic racial bias. Because the murder of a Black person is less statistically likely to result in a death sentence, Cholbi and Madva argue, “the law fails to penalize killings of blacks in a manner consistent with their having the equal protection of the law.” Given that the law “routinely punishes those who kill blacks less harshly than those who kill others, killing blacks becomes commensurably less risky (especially if the killer is white)." This distributive injustice “is one that all blacks face, not only those who actually are murdered.” The authors analyze attempted state-level death-penalty reforms and conclude that they “have had modest success at best” at eliminating racial bias, and therefore "abolishing the death penalty may itself be one among many necessary reforms for reducing broader racial disparities in criminal imprisonment." The task of ensuring that the lives of Black people are comparably protected and their killers are equally punished in the U.S. criminal justice system is impossible, they argue, without dismantling the capital punishment system for good. 

STUDY: Pervasive Rubberstamping by State Courts Undermines Legitimacy of Harris County, Texas Death Sentences

State-court factfinding by judges in Harris County, Texas death-penalty cases is "a sham" that "rubberstamps" the views of county prosecutors, according to a study of the county's capital post-conviction proceedings published in the May 2018 issue of the Houston Law Review. In The Problem of Rubber Stamping in State Capital Habeas Proceedings: A Harris County Case Study, researchers from the University of Texas School of Law Capital Punishment Center examined factfinding orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, Harris County judges adopted the county prosecutors' proposed findings of fact verbatim. In the vast majority of cases, judges signed the state’s proposed document without even changing the heading. Looking at the 21,275 individual factual findings that county prosecutors had proposed, the researchers discovered that 96% of the judicial findings were word-for-word what prosecutors had written. The study's authors—Capital Punishment Center Director and Judge Robert M. Parker Chair in Law Jordan M. Steiker, Center Co-Director and Clinical Professor James W. Marcus, and Clinical Fellow Thea J. Posel—identified two related state post-conviction practices that they say "undermine the accuracy and fairness of the death penalty" in the nation's most prolific county for executions: "the reluctance of state trial courts to conduct evidentiary hearings to resolve contested factual issues, and the wholesale adoption of proposed state fact-finding instead of independent state court decision-making." State post-conviction applications typically present affidavits from witnesses and experts containing evidence that could have been, but was not, presented at trial. This evidence may "relate[ ] to the accuracy of the conviction, including forensic, alibi, or eyewitness testimony; or the affidavits might highlight important [penalty-phase] mitigating evidence regarding the inmate’s psychiatric or psychological impairments, abused background, or redeeming qualities." The systemic rubberstamping rejects this evidence, often without any evidentiary hearing into contested factual issues. The "inadequate development of facts" caused by this "one-sided consideration of contested factual issues," the researchers say, "prevents Harris County post-conviction courts from enforcing federal constitutional norms." The sham state-court proceedings also lead to unreliable federal habeas corpus review of Harris County death sentences, the researchers said, "[b]ecause even rubberstamped findings receive deference in federal court." When federal habeas relief is denied and an execution occurs, "prosecutors and newspapers recount the many layers of review undertaken" in the case, notwithstanding the underlying reality that "those layers of review afforded no meaningful consideration of the inmate’s constitutional claims." The reality of rubberstamped state-court factfinding and illusory federal appellate review, they say, "undermines the legitimacy of Harris County executions."

STUDIES: Death-Penalty Jury Selection “Whitewashes” Juries and is Biased Towards Death

As support for the death penalty has declined in America, the process of "death-qualification"—which screens potential jurors in death-penalty cases based upon their views about capital punishment—produces increasingly unrepresentative juries from which African Americans are disproportionately excluded and, according to a new study by researchers at the University of California, increasingly biases juries in favor of conviction and death sentences. Death-qualification, the researchers say, "systematically 'whitewashes' the capital eligible pool [and] leaves behind a subgroup [of jurors] that does not represent the views of its community." Professor Mona Lynch (pictured, l.) of University of California-Irvine's Department of Criminology, Law, and Society, and Professor Craig Haney (pictured, r.) of University of California-Santa Cruz's Department of Psychology conducted two surveys of jurors in Solano County, California—which has the highest concentration of African Americans in the state—18 months apart to examine how racial differences in death-penalty opinions affect the composition of capital juries. As support for the death penalty has declined in recent years, the gap between the views of Whites (and particularly White males) and the views of African Americans and women has grown, exacerbating what the authors call "tension between the constitutionally sanctioned practice of death-qualification and a capital defendant’s constitutional right to be tried by a representative and unbiased jury." The researchers asked respondents about their views on the death penalty, and about whether those views would interfere with their ability to apply the law in a death-penalty trial, which would make them legally excludable from a jury. They found that the death-qualification process excluded a far greater percentage of people who said they opposed the death penalty than said they supported it, and that the rate of exclusion was even more disproportionate for African Americans. And while nearly equal percentages of White men and women were excluded by the process, the women who were excluded were much more likely to oppose capital punishment. The death-qualification process, they said, also contributed to racially disparate use of discretionary jury strikes by the prosecution by providing a facially race-neutral reason for disproportionately excluding African-American jurors. When the researchers asked jurors about their attitudes towards potentially aggravating and mitigating evidence, they found that a majority of White jurors—and particularly White male jurors—disregarded most mitigating evidence that would be offered to spare a defendant's a life and that a significant minority of these jurors inappropriately viewed many of these mitigating factors as reasons to impose a death sentence. They also found that White respondents "were significantly more receptive to aggravating evidence and were more inclined to weigh these specific items in favor of a death sentence compared to African American respondents." The process, they said, "creat[es] a jury whose members are unusually hostile to mitigation," which may "functionally undermine" the fair consideration of a capital defendant's case in mitigation. "This risk," the authors wrote, "is particularly high in cases involving African American defendants, especially where white men dominate the jury." The overall result, they said, is that, "[i]n a county in California where support for and opposition to capital punishment are beginning to approach parity, death qualification still has the potential to produce jury pools that are significantly more likely to favor the death penalty." 

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