On December 17, 2007, New Jersey abolished the death penalty. On the tenth anniversary of abolition, the editorial board of the New Jersey Law Journal writes, "On the Death Penalty, New Jersey Got it Right." The editorial board wrote, “Abolition has proven its worth, in that there has been no surge of murders, a significant decline of prosecution and appeal expenses, and the elimination of unremediable judicial mistakes. [Abolition] was and remains both the right thing and the sensible thing to have done.” In August 1982, New Jersey reenacted the death penalty, six years after the United State Supreme Court decision in Gregg v. Georgia upheld the constitutionality of state capital punishment laws. However, no defendant was ever executed in the state. In January 2006, the state legislature passed a bill creating the New Jersey Death Penalty Study Commission and imposing a moratorium on executions until the commission issued its report. The study commission’s report, released on January 2, 2007, recommended abolishing capital punishment. Among other findings, the commission determined that the costs of imposing the death penalty were “greater than the costs of life in prison without parole” and that there was “no compelling evidence that the New Jersey death penalty serves a legitimate penological intent.” Less than a year later, Governor Jon Corzine signed legislation abolishing the death penalty. Murders fell in New Jersey after the moratorium and repeal bills became law, marking the first time since 1999 that New Jersey experienced a drop in murders for two consecutive years. One year after repeal, New Jersey prosecutors reported that the abolition had not hindered prosecution of the state’s most violent offenders. The Law Journal editorial board said that, after a decade, the study commission’s assessment that the death penalty was not a deterrent to murder “has proven its worth." The murder rate in New Jersey has been lower than it was in 2007 for eight of the past nine years and a 2017 DPIC study of murder rates over the last three decades found no difference in murder trends based upon whether a state had, or did not have, capital punishment. A December 15 statement released by the Catholic Bishops of New Jersey hailed the state’s abolition of the death penalty “as a victory for the dignity of life.” The Bishops wrote that while they “affirm the state’s duty to punish criminals, to prevent crime, and to assist victims,” they also “recognize the need to improve our criminal justice system and to forge a greater societal commitment to justice.” Society, they said, “has effective ways to protect itself and to redress injustice without resorting to the use of the death penalty.”
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.)
Executions and new death sentences remained near historic lows in 2017, and public support for the death penalty polled at its lowest level in 45 years, according to DPIC's annual report, “The Death Penalty in 2017: Year End Report,” released December 14. Both the 23 executions and the 39 projected new death sentences in 2017 were the second lowest totals in more than a quarter-century. Four more people were exonerated from death row in 2017, bringing the total to 160 death-row exonerations since 1973. For the 17th consecutive year, the number of prisoners on the nation’s death rows fell, as the combination of exonerations, non-capital resentencings, and deaths by natural causes again outpaced new death sentences imposed. The 3-, 5-, and 10-year periods ending in 2017 had the lowest numbers of death sentences of any corresponding periods since 1976, continuing the nation’s long-term decline in the use of the death penalty. “Perhaps more than any place else, the changes in Harris County, Texas are symbolic of the long-term change in capital punishment in the United States,” said Robert Dunham, DPIC’s Executive Director. “For the first time since 1974, the county that has carried out more executions than any other did not execute any prisoner or sentence any defendant to death.” Public support for the death penalty dropped to 55%, according to an October 2017 national Gallup Poll, the lowest since March 1972. Support for the death penalty fell five percentage points nationally and 10 percentage points among Republicans since Gallup's October 2016 poll. Of the 81 scheduled execution dates in 2017, 58 (71.6%) were never carried out, either because of court ordered stays, gubernatorial reprieves or commutations, or rescheduling. The death penalty remains geographically isolated, with two states—Texas and Arkansas—accounting for nearly half (48%) of all executions in 2017 and another two states—Alabama and Florida—accounting for an additional quarter. More than 30% of the new death sentences nationwide came from just three counties—Riverside, California; Clark, Nevada; and Maricopa, Arizona. Indeed, the 27 new death sentences imposed in the other 3,140 U.S. counties and county equivalents, were fewer than even last year's historic low. The report found that an alarming 90% of the 23 prisoners executed in 2017 presented significant evidence of mental illness, intellectual disability, brain damage, severe trauma, and/or innocence. Four prisoners were executed despite substantial concerns about their guilt. (Click image to enlarge.)
Nevada Says Fentanyl Was Easy to Obtain, But Execution Protocol Draws Criticism from Doctors, Legal ExpertsPosted: December 13, 2017
As U.S. pharmaceutical companies have strengthened distribution controls on their medicines to prevent their use in executions, states have been changing their execution protocols in search of new or more readily available drugs. That search has led Nebraska and Nevada to build their execution protocols around fentanyl—the drug known for its role in the current opioid crisis in America—and the paralytic cisatracurium, which have never been used in executions before. According to a report in the Washington Post, Nevada's former chief medical officer, Dr. John DiMuro, quickly chose a never-before-used combination of drugs for the state's execution protocol based upon “the few drugs available to the prison system.” In an e-mail to the Post, the Nevada corrections department said the drug was easy to obtain. “We simply ordered it through our pharmaceutical distributor, just like every other medication we purchase, and it was delivered,” wrote corrections spokeperson Brooke Keast. “Nothing out of the ordinary at all.” In April, drug distributor McKesson Medical-Surgical sued Arkansas after learning that the state was using one of the medicines it obtained from the distributor as an execution drug, alleging the state had deliberately misled McKesson to believe that the purchase was for legitimate medical purposes. That lawsuit is still pending in the Arkansas courts. Dr. DiMuro said he created the untried execution protocol “based it on procedures common in open-heart surgery.” However, the protocol has spawned a new round of criticism from doctors and lethal-injection experts. Mark Heath, a professor of anesthesiology at Columbia University, told the Post that if the fentanyl or the sedative Valium—which Nevada would also administer before the paralytic—“don’t work as planned, or if they are administered incorrectly,” then the prisoner would be awake and conscious during the execution. “It would be an agonizing way to die, but the people witnessing wouldn’t know anything had gone wrong because you wouldn’t be able to move” because of the paralytic drug, he said. Emory University Professor of Anesthesiology Joel Zivot said the protocol is the latest in a series of attempts by states to “obtain certain drugs, try them out on prisoners, and see if and how they die.” The states, he said, have “no medical or scientific basis” for selecting the execution drugs. Fordham University law professor Deborah Denno, a leading scholar on methods of execution, criticized the states for continuing to adopt experimental drug protocols. The reason for the change in protocols, she said, is “not really for the prisoner. It’s for the people who have to watch it happen. We don’t want to feel squeamish or uncomfortable. We don’t want executions to look like what they really are: killing someone.” On November 27, a Nevada state trial court issued an inunction barring the state from using a paralytic in conjunction with fentanyl in the execution of Scott Dozier. The state has appealed the order.
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.
There will be no death penalty in the first capital prosecution authorized under the administration of Orange and Osceola County, Florida, State Attorney Aramis Ayala. In a case that rekindled the political confrontation between State Attorney Ayala and Governor Rick Scott over the use of the death penalty, Emerita Mapp (pictured) pleaded no contest on December 8 to one count of murder and a second count of attempted murder in exchange for a sentence of life without parole. The plea deal came just three days before the trial judge was scheduled to rule on Mapp’s motion arguing that the court should bar the death penalty in her case because the state attorney’s office had missed the filing deadline for seeking the death penalty. In March, State Attorney Ayala announced that her office would not seek the death penalty, saying that the use of the punishment was “not in the best interests of this community or in the best interests of justice." Scott responded by removing Ayala’s office from more than two dozen potential death-penalty cases over the course of several months, and replacing her with Lake County State Attorney Brad King. The move, which was opposed by civil rights groups and the Florida black legislative caucus, had unspoken racial undertones: Ayala, a Democrat, is Florida's only black elected state attorney; King, a Republican, is white and a vocal proponent of capital punishment. Ayala sued Scott, alleging that he had overstepped his powers, but in August 2017, the Florida Supreme Court upheld his actions, holding that Scott had acted “well within the bounds of the Governor’s broad authority.” Ayala said she respected the ruling and announced the formation of a panel to decide in which cases to pursue capital punishment. Mapp’s case was the first in which the panel had authorized the death penalty, but that authorization came 22 days after the deadline for providing notice of capital prosecution. That prompted another round of criticisms traded between Scott and Ayala as to who was to blame for missing the deadline.
Texas District Attorney Asks State to Spare Life of Man She Prosecuted Under Controversial “Law of Parties”Posted: December 8, 2017
The Texas prosecutor who sought and obtained the death penalty almost 20 years ago against Jeffery Wood (pictured), a man who never killed anyone, has now asked that his sentence be reduced to life in prison. In a letter to the Texas Board of Pardons and Parole, sent in August and obtained December 7 by the Texas Tribune, Kerr County District Attorney Lucy Wilke asked the board to recommend that Governor Greg Abbott grant Wood clemency and commute his sentence to life in prison. In 1998, Wilke—then an assistant district attorney—prosecuted Wood for the 1996 murder of Kriss Keeran, a Kerrville convenience store clerk who was shot to death by Wood's roommate, Daniel Reneau, while Reneau was robbing the store. Reneau was executed. Wood, who has denied that he had any knowledge that Reneau was going to commit a robbery or had taken a gun into the store, was sitting outside in the truck when the shooting occurred. He was prosecuted for murder and sentenced to death under Texas’s felony-murder statute, commonly known as the law of parties, which holds an accomplice liable for the actions of every other participant in the crime, even if the accomplice did not know and did not intend that a murder would occur. Wood's case drew national attention when the state scheduled his execution for August 2016. At that time, a broad range of groups, including evangelical leaders, state representatives, and editorial boards, called for Wood to be spared. More than 50 House members of both parties signed on to a letter written by conservative Rep. Jeff Leach asking Gov. Abbott and the pardons board to reduce Wood's sentence. Six days before his scheduled execution, the Texas Court of Criminal Appeals stayed Wood's execution on unrelated grounds, sending his case back to the Kerr County trial court to review Wood’s claim his death sentence was the product of false predictions of future dangerousness by a psychiatrist, Dr. James Grigson, who had been expelled from the American Psychiatric Association and Texas Society of Psychiatric Physicians for his unprofessional practices. "Had I known about Dr. Grigson’s issues with said organizations, I would not have used him as the State’s expert witness in this case on the issue of future dangerousness,” Wilke wrote in the letter. Although Wilke actively pursued the death penalty against Wood, she told the pardons board that “the penalty now appears to be excessive.” “While I am aware that requests for clemency in Death Penalty Capital Murder cases are normally considered when there is an execution date pending,” Wilke wrote, “I respectfully ask that you consider this request for commutation of sentence and act on it now, in the absence of such an execution date, in the interest of justice and judicial economy." Along with the fact that he wasn't the shooter, Wilke cited Wood's below-average IQ of 80, his history of nonviolence, and Dr. Grigson’s testimony as grounds for clemency. The letter was co-signed by Kerrville Police Chief David Knight, who was an officer at the time of the murder, and District Court Judge Keith Williams, who is presiding over Wood's challenge to the constitutionality of the prosecution's use of "false testimony and false scientific evidence" from Dr. Grigson.
Two of the co-chairs of the bipartisan Oklahoma Death Penalty Review Commission have praised organizations in the state for taking "essential steps" towards implementing some of the Commission's recommendations to reform Oklahoma’s death-penalty system. In an article published December 7 in the Tulsa World, former Oklahoma Governor Brad Henry (pictured, left) and Andy Lester (pictured, right), a prominent Oklahoma litigator, spotlighted actions by the Oklahoma Bar Association (OBA) and the state District Attorneys Council that they say "commit to reforms" recommended by the Commission that would improve the quality of death-penalty representation and help reduce the risk of wrongful convictions. The Commission spent more than a year "analyzing, debating and hearing from law enforcement, prosecutors, defense attorneys, judges, families of murder victims, those wrongfully convicted and others" before publishing a nearly 300-page report in April 2017 that included 45 recommendations for reforming Oklahoma's death penalty. The report emphasized that one of the "most significant factors that influence outcomes in capital cases is the quality of a defendant’s attorney," and called for the adoption of performance standards for death-penalty defense counsel. After meeting with the Commission, the state bar association created a task force that drafted minimum standards of capital-defense practice, which have since been approved by the OBA House of Delegates. The OBA's Rules of Professional Conduct Committee is now drafting rules for capital defense lawyers for consideration by the Oklahoma Supreme Court. Henry and Lester write that they "are so pleased" that the OBA's actions have shown that it "understands the importance of a qualified lawyer in death penalty cases." The co-chairs also praised the District Attorneys Council for "undertak[ing] recommendations from the commission." These included conducting a training over the summer on common causes of wrongful convictions and "considering the formation of a best practices committee." Henry and Lester recognize that the Committee's recommendations will not all be implemented overnight, but say they "are encouraged that two major players in Oklahoma’s capital punishment system are working to improve standards and training for defense lawyers and prosecutors. Without effective lawyers on both sides," they say, "we cannot guarantee that our system is just and fair."
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.
Harris County (Houston), Texas, has executed 126 prisoners since the U.S. Supreme Court upheld Texas's capital punishment statute in 1976, more than any other county in the United States and, apart from the rest of Texas, more than any state. But in 2017, no one will be sentenced to death in Harris County and, for the first time since 1985, no one sentenced to death in the county will be executed. In 2017, the U.S. Supreme Court also overturned two controversial Harris County death-penalty cases, resulting in agreements with county prosecutors that Duane Buck and Bobby Moore should be resentenced to life. District Attorney Kim Ogg (pictured), elected in 2016 as a reform prosecutor, said she views these developments "as a positive thing." "I don't think that being the death penalty capital of America is a selling point for Harris County," she said. Death Penalty Information Center Executive Director Robert Dunham told the Houston Chronicle that, because of its prolific execution rates, "Harris County has always symbolized America's death penalty." This year's statistics, he said, are "both symbolic and emblematic of the change in capital punishment in the United States. For the first time in a generation, the nation's largest executioner has executed no one." Texas death-row exoneree Anthony Graves credited the Ogg administration "for being out front on criminal justice reform.... Because this is what it is, this is what it looks like," he said. Texas's seven executions in 2017 are still more than were carried out in any other state, but a majority of the death warrants issued during the year did not result in executions. Death-penalty proponent Dudley Sharp attributed the execution decline to the increase in time between sentencing and execution. In Texas, however, much of that increase is a result of changes in state law arising from legislative concerns about wrongful convictions: the Texas Court of Criminal Appeals granted seven stays of execution in 2017 permit prisoners to litigate claims that their convictions or death sentences were the product of defective forensic testimony, false evidence, or the suppression of exculpatory evidence by prosecutors or violated this year's Supreme Court decision in Moore v. Texas. The seven executions statewide stood in stark contrast to the 40 executions the state carried out in 2000. Declining murder rates, the availability of life without parole as a sentencing alternative, and reduced public support for the death penalty have all contributed to the reduction of new death sentences in Harris County. A 2016 report by the Kinder Institute for Urban Research at Rice University found that the number of Houston-area residents preferring the death penalty over life sentences for those convicted of first-degree murder had fallen to just 27%.