DPIC News

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

State Attorney Aramis Ayala's First Capital Prosecution Ends in Deal for Life in Prison

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”

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 TribuneKerr 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.

Co-Chairs of Oklahoma Commission Praise Steps Towards Death-Penalty Reform

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."

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. 

No Executions in the “Capital of Capital Punishment” for First Time in 30 Years

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%.

Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death

The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”

Underfunding of Capital Defense Services in Louisiana Leaves Defendants Without Lawyers

Facing court challenges for underfunding the state's public defender system and pressure from prosecutors angered by the zealous capital representation provided in the state by non-profit capital defense organizations, the Louisiana legislature enacted a law last year redirecting $3 million to local public defenders that had previously been allocated to fund capital defenders. As it has nearly every winter, however, the Louisiana public defender system has run out of money, and the underfunded capital defense offices, already at full capacity, say they cannot take any more cases. As a result, The Marshall Project reports, "[a]t least 11 Louisiana defendants facing the death penalty — including five who have already been indicted — have no defense team and may not have one until new money becomes available in July." And, with Louisiana law requiring prosecutors to seek the death penalty in murder cases unless the prosecutor explicitly decides otherwise, the wait list is expected to grow. Ben Cohen, an attorney with the non-profit The Promise of Justice Initiative likens the situation to “a conveyer belt" of murder cases. He said, "we’re grabbing them off as they come. But with the funding cuts, they essentially pulled some of us away from the line, and now the cases are piling up and crashing to the floor.” “They robbed Peter to pay Paul,” said Jay Dixon, chief defender for the Louisiana Public Defender Board. “We’re still in crisis; it’s just a different crisis ... [and] we could be facing an even greater crisis next year." Hugo Holland, a death-penalty prosecutor who doubles as chief lobbyist for the Louisiana District Attorneys Association, suggests that the capital defenders should lower their standards in providing representation, taking more than the five cases per year recommended by the American Bar Association standard adopted by the state Public Defender Board in 2007. He also argues that the defenders should back off of the ABA-recommended standard of a defense team of two lawyers, a fact investigator, and a penalty-phase mitigation specialist. He rails against the capital defenders as "boutique law firms" whom he believes are "intentionally thwarting the administration of justice." The defense lawyers, he says, should "do [their] f***ing job and provide anyone represented by [them] constitutional representation." Cohen says Louisiana has placed capital-defense lawyers "an awful moral conundrum." It is, he says, "[l]ike a doctor who has to perform 12 heart surgeries in a day, but then his staff gets cut in half. He can either do a crappier job on these life-or-death procedures, or he can take fewer of them and make the others wait." Prior to the new law, the Louisiana Public Defender Board had spent about 28% of its annual budget on capital cases, totaling about $9.5 million two years ago and 8.5 million last year. Louisiana's death penalty has been plagued with problems. Former Louisiana Supreme Court Chief Justice Pascal Calogero has characterized prosecutorial misconduct in capital cases as "endemic and persistent." There are equally persistent allegations of racism in its administration of capital punishment. And since 2000, courts have reversed 96% of the Louisiana death sentences that have completed appellate review. Eleven prisoners wrongly convicted and sentenced to death in Louisiana have been exonerated, the most recent exoneration occurring in April 2017. New Orleans capital defense attorney Nick Trenticosta says that if the state wants to have the death penalty, it has to pay for it. "You can’t try to put a man to death on the cheap."

History of Lynchings of Mexican Americans Provides Context for Recent Challenges to U.S. Death Penalty

From 1846 to 1870, more than 100 men and women were hanged on the branches of the notorious "Hanging Tree" in Goliad, Texas. Many were Mexicans or Mexican Americans and many were killed by lynching. In a November 25 op-ed in the San Antonio Express-News, historian Alfredo Torres, Jr. writes that these public killings are a reminder that "the noose, [which] has been identified as emblematic of violence and oppression toward African-Americans, [is] often overlooked as a symbol of terror for Mexican-Americans." Torres says that no region experienced more lynchings of Mexican Americans than Southern Texas, and the public spectacles on the Goliad County Courthouse lawn (pictured), now an historic landmark and tourist attraction, were witnessed by Anglo families "in a carnival-like atmosphere, bringing picnic baskets and taking photos." Lynchings of more than 871 Mexican Americans are documented across 13 Western and Southwestern states after the Civil War. But Torres says "these numbers don’t compare to what was done in Texas," where historians William D. Carrigan and Clive Webb estimate that more than 5,000 Mexican Americans were murdered between 1910 to 1920. That wave of terror included numerous extra-judicial lynchings and murders of Mexican Americans by vigilantes, local law-enforcement officers, and Texas Rangers. Texas A & M-Kingsville journalism professor Manuel Flores wrote in an October 2017 column in the Corpus Cristi Caller-Times that the death and legend of Josefa “Chipita” Rodriguez—framed for the 1863 ax murder of a White cotton merchant and horse trader in what was still Confederate Texas—symbolizes the racial violence against Mexican Americans in the state and "are as pertinent to the state of Texas as that of the Alamo and Goliad stories." Rodriguez was falsely accused of murder and the theft of $600 after the dismembered body of John Savage was found on the banks of the river near her traveler's lodge. Though there was no evidence of her involvement in the murder and she insisted “No soy culpable" ("I'm not guilty"), she was quickly tried, sentenced, and hanged. In 1985, the Texas Legislature adopted a resolution absolving Rodríguez of the murder, and Gov. Mark White signed the resolution, posthumously pardoning her on June 13, 1985. Cardigan and Webb say that widespread lynchings of Mexican Americans persisted into the 1920s, "eventually declining largely because of pressure from the Mexican government." Issues of racial bias against Mexicans and others of Latino descent in the administration of the death penalty in the U.S. persist. 122 Latino prisoners have been executed in the United States since 1985. Texas has carried out 84.4% of those executions (103), including the controversial execution of Mexican national Ruben Ramírez Cárdenas on November 8, in violation of international treaty obligations to have permitted him to obtain consular assistance from his government. 373 Latino/a prisoners are on state or federal death rows across the United States, with three-quarters sentenced to death in California (188), Texas (67), or Arizona (27). A challenge to the constitutionality of Arizona's death penalty, filed by Abel Daniel Hidalgo, is currently pending in the U.S. Supreme Court. His petition presents evidence that in Arizona, "a Hispanic man accused of killing a white man is 4.6 times as likely to be sentenced to death as a white man accused of killing a Hispanic victim." The Court will consider during its December 1 conference meeting whether to accept Hidalgo's case for review.

Louisiana Justice Recused From “Angola 5” Death-Penalty Appeal After Radio Interview Commenting on the Case

Louisiana Supreme Court Justice Scott Crichton (pictured) will not participate in deciding the appeal of a prisoner sentenced to death in a controversial, high-profile prison killing, after Crichton publicly commented on the case during an appearance on a local radio program. On November 21, Crichton recused himself from the pending appeal of death-row prisoner David Brown, one day after Brown's lawyers sought his removal from the case because of Crichton's on-air comments about the "Angola 5" case and the judge's derrogatory references to capital appeals. Brown is one of the five men charged in the murder of prison guard, Capt. David Knapp at the Angola State Penitentiary in 1999. Crichton's "notice of self-recusal" provided no explanation for his decision. However, Brown's lawyers had argued in their recusal motion that, during an October 23 talk-radio appearance on the KEEL Morning Show with Robert and Erin, "[Crichton] and his interviewer agreed that inmates with life sentences 'have nothing to lose' and that murders by prisoners, like 'the Angola 5 in South Louisiana,' prove that the death penalty is a deterrent because inmates who have been executed cannot then harm prison guards." The lawyers also argued that Crichton had expressed personal opinions about the death penalty both on the October 23 program and in other recent radio interviews that violated the Code of Judicial Conduct and disqualified him participating in Brown's death-penalty appeal. In addition to his comments about the Angola 5 case, Justice Crichton—a former death-penalty prosecutor and judge in Caddo Parish, where the rate of death sentences per homicide was nearly 8 times greater between 2006 and 2015 than in the rest of Louisiana—disparaged death-penalty appeals, saying that it "boggles my mind" when an "inmate who has committed capital murder who is on death row is begging for his life. Think about the fact that the victim gets no due process." In 2014, a trial court had reversed Brown's death sentence after finding that Hugo Holland—another former Caddo Parish prosecutor who had been appointed as a special prosecutor to handle the case—had withheld evidence that a prisoner interviewed in connection with the murder had told prosecutors that two of the five men charged in the killing had admitted to him that only they had committed the murder. The Louisiana Supreme Court later reinstated Brown's death sentence, ruling that the suppression of this evidence was not "material" to the jury's sentence. Crichton had complained in previous appearances on the talk show about the appeal process in the death-penalty case of Nathaniel Code, against whom Crichton had obtained a death sentence in the 1980s: “He’s been on this crazy post-conviction relief status,” Crichton said. “He had 18 years of [post-conviction appeals] in the state system, which is absurd, obscene, and hideous.”

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