New Analysis: Capital Cases Overturned At Least Four Times Illustrate How Pervasive Prosecutorial Misconduct Contributes to High Cost of Death Penalty

The sin­gle most com­mon out­come for a death sen­tence in the mod­ern era is for it to be reversed on appeal due to a con­sti­tu­tion­al vio­la­tion. Most peo­ple whose sen­tences are reversed get resen­tenced to life in prison or less, but some pros­e­cu­tors per­sist in seek­ing new death sen­tences even after mul­ti­ple rever­sals. A Death Penalty Information Center analy­sis of the 14 peo­ple sen­tenced to death four or more times for the same crime finds that pros­e­cu­to­r­i­al mis­con­duct, includ­ing racial bias, con­tributed to the high num­ber of rever­sals. When a court over­turns a death sen­tence due to gov­ern­ment mis­con­duct, pros­e­cu­tors are not required to seek death again — but when they decide to do so, they cre­ate new trau­ma for vic­tims’ fam­i­ly mem­bers and add new costs for tax­pay­ers. While this analy­sis focus­es on a small sub­set of death-sen­tenced peo­ple, their expe­ri­ences with pros­e­cu­to­r­i­al mis­con­duct pro­vide insight into the prob­lems that affect many oth­er capital cases. 

Pervasive Prosecutorial Misconduct

Curtis Flowers is like­ly the most well-known of those with high rever­sal and resen­tenc­ing rates, and his case serves as a stark exam­ple of pros­e­cu­to­r­i­al mis­con­duct. Tried six times by the same pros­e­cu­tor and sen­tenced to death four times, Mr. Flowers was exon­er­at­ed after the U.S. Supreme Court over­turned his final death sen­tence in 2019 and the state of Mississippi sub­se­quent­ly dropped all charges. The Court grant­ed Mr. Flowers relief based on over­whelm­ing evi­dence of racial dis­crim­i­na­tion: across all six tri­als, pros­e­cu­tor Doug Evans used 41 of 42 peremp­to­ry strikes to exclude Black poten­tial jurors. ​“The num­bers speak loud­ly,” Justice Brett Kavanaugh wrote for the sev­en-jus­tice major­i­ty. ​“The State’s relent­less, deter­mined effort to rid the jury of black indi­vid­u­als strong­ly sug­gests that the State want­ed to try Flowers before a jury with as few black jurors as pos­si­ble, and ide­al­ly before an all-white jury.”

Mr. Flowers’ first two con­vic­tions were over­turned due to mis­con­duct in how the state pre­sent­ed evi­dence, ques­tioned wit­ness­es, and argued to the jury. The Mississippi Supreme Court found the state’s actions in the first tri­al to be ​“egre­gious,” ​“bad faith,” and ​“high­ly prej­u­di­cial,” then held that the state ​“employed many of the same tac­tics” dur­ing the sec­ond tri­al. Mr. Flowers’ third con­vic­tion was over­turned by the Mississippi Supreme Court because Mr. Evans used all 15 of the state’s peremp­to­ry strikes against Black poten­tial jurors in vio­la­tion of Batson v. Kentucky (1986), which bars racial dis­crim­i­na­tion in jury selec­tion. That court held that Mr. Evans’ behav­ior rep­re­sent­ed ​“as strong a…case of racial dis­crim­i­na­tion as we have ever seen in the con­text of a Batson chal­lenge.” Mr. Flowers’ fourth and fifth tri­als end­ed with hung juries. 

In revers­ing Mr. Flowers’ sixth and final con­vic­tion and death sen­tence, the U.S. Supreme Court wrote that the ​“State appeared to pro­ceed as if Batson had nev­er been decid­ed.” Beyond the ​“bla­tant pat­tern” in the race of exclud­ed jurors, the Court also point­ed to ​“dra­mat­i­cal­ly dis­parate ques­tion­ing of black and white prospec­tive jurors,” ​“fac­tu­al­ly inac­cu­rate state­ments about black prospec­tive jurors,” and sim­i­lar­i­ties between struck Black jurors and retained white jurors as key indi­ca­tors of Mr. Evans’ dis­crim­i­na­tion. Mr. Flowers received Mississippi’s max­i­mum com­pen­sa­tion of $500,000 for his 22 years of wrong­ful incar­cer­a­tion on death row. 

Prosecutors also com­mit mis­con­duct when they with­hold evi­dence favor­able to the defense or present evi­dence they know to be false. During Lacey Mark Sivak’s fourth cap­i­tal tri­al in Idaho for the mur­der of a gas sta­tion atten­dant dur­ing a rob­bery, the pros­e­cu­tion called two jail­house infor­mants who claimed that Mr. Sivak had con­fessed to the mur­der. While Mr. Sivak admit­ted to par­tic­i­pat­ing in the rob­bery, he argued that his code­fen­dant shot and sex­u­al­ly assault­ed the vic­tim. Both infor­mants claimed on the stand that they had not received any favors from the pros­e­cu­tion for their tes­ti­mo­ny, but let­ters dis­cov­ered by the defense years lat­er revealed that the pros­e­cu­tion had helped get charges dropped in two states for one of the infor­mants and writ­ten to the parole board to rec­om­mend his release. The oth­er infor­mant wrote to his sen­tenc­ing judge that he had been ​“promised deals by the pros­e­cut­ing attorney’s office,” admit­ted that he was ​“a chron­ic liar,” and said that ​“lying was a way of life” for him. 

The Ninth Circuit held in 2011 that the state had vio­lat­ed Mr. Sivak’s con­sti­tu­tion­al rights. The ​“only direct evi­dence of Sivak’s per­son­al par­tic­i­pa­tion in the crime” came from the two infor­mants and his code­fen­dant, the Ninth Circuit held, and because all three wit­ness­es were ​“inher­ent­ly unre­li­able,” there was a rea­son­able like­li­hood that the out­come would have been dif­fer­ent if the state had not sub­orned wit­ness per­jury. Mr. Sivak’s three pre­vi­ous death sen­tences were over­turned based on errors by the tri­al judge, includ­ing fail­ing to read his find­ings to Mr. Sivak in open court, refus­ing to con­sid­er new mit­i­ga­tion evi­dence, and improp­er­ly con­sid­er­ing vic­tim impact evi­dence. Mr. Sivak was resen­tenced to life with­out parole in 2013 based on an agree­ment with pros­e­cu­tors, who told press that ​“we’re sat­is­fied that this is the right thing under the cir­cum­stances” and not­ed that the victim’s fam­i­ly sup­port­ed a life sentence.

Another type of pros­e­cu­to­r­i­al mis­con­duct involves mak­ing improp­er argu­ments to the jury, such as com­ments that unfair­ly char­ac­ter­ize the defen­dant or bol­ster the strength of the prosecution’s evi­dence. Such was the case for Phillip Tomlin, who was sen­tenced to death by an Alabama judge four times despite the fact that every jury that heard his case unan­i­mous­ly rec­om­mend­ed a life sen­tence.¹ Courts over­turned three of Mr. Tomlin’s death sen­tences due to pros­e­cu­to­r­i­al or juror mis­con­duct, and the fourth based on the judge’s mis­use of the over­ride func­tion, before Mr. Tomlin was final­ly resen­tenced to life with­out parole in 2004. 

During clos­ing argu­ments of Mr. Tomlin’s first tri­al, the pros­e­cu­tor implied that the tri­al judge agreed with the prosecution’s evi­dence, then sug­gest­ed that Mr. Tomlin’s wife’s deci­sion not to tes­ti­fy was sus­pi­cious. The Alabama Court of Criminal Appeals held that the prosecutor’s com­ments ​“seri­ous­ly affect­ed the fair­ness and integri­ty of the judi­cial pro­ceed­ings.” The same court over­turned Mr. Tomlin’s sec­ond con­vic­tion because the state again com­mit­ted mis­con­duct, this time when the pros­e­cu­tor elicit­ed tes­ti­mo­ny that Mr. Tomlin’s code­fen­dant had been sent to death row for the mur­ders, then improp­er­ly com­ment­ed on Mr. Tomlin’s deci­sion not to tes­ti­fy. The court also iden­ti­fied sev­er­al errors by the tri­al judge, includ­ing mis­stat­ing the stan­dard for first-degree mur­der dur­ing jury instruc­tions. And in 1996, the Alabama Court of Criminal Appeals reversed Mr. Tomlin’s third con­vic­tion and death sen­tence because a juror did not reveal key facts about him­self dur­ing jury selec­tion, includ­ing his crim­i­nal record, his own expe­ri­ences as a crime vic­tim, and his knowl­edge of the case. The court found that the juror had a ​“total dis­re­gard for truth­ful dis­clo­sure” and the prin­ci­ples of jury service. 

Though Mr. Tomlin even­tu­al­ly won relief, Jerry Jerome Smith remains on death row in Alabama as one of only two peo­ple sen­tenced to death five times for the same crime in the mod­ern era.² Mr. Smith’s first four death sen­tences were over­turned due to con­sti­tu­tion­al errors by the jury and judge, but the Equal Justice Initiative has also point­ed to evi­dence of pros­e­cu­to­r­i­al mis­con­duct across mul­ti­ple of Mr. Smith’s tri­als. The pros­e­cu­tor exclud­ed all 11 qual­i­fied Black poten­tial jurors in Mr. Smith’s fourth sen­tenc­ing tri­al, result­ing in an all-white jury, and then pri­vate­ly ques­tioned only Black poten­tial jurors dur­ing the fifth sen­tenc­ing tri­al before strik­ing them at high­er rates than white jurors. 

DPI has iden­ti­fied over 600 instances in which courts over­turned death sen­tences or con­vic­tions due to pros­e­cu­to­r­i­al mis­con­duct, and yet more cas­es in which courts acknowl­edged that pros­e­cu­to­r­i­al mis­con­duct occurred but ruled that it did not affect the out­come of the tri­al. These find­ings illus­trate that pros­e­cu­to­r­i­al mis­con­duct — whether it involves racial dis­crim­i­na­tion against jurors, know­ing­ly allow­ing wit­ness­es to lie on the stand, with­hold­ing evi­dence from the defense that points to inno­cence, or mak­ing bad-faith argu­ments to jurors — may be a fea­ture rather than a bug of death penal­ty tri­als in some jurisdictions. 

The High Cost of Retrying Capital Cases

Studies con­sis­tent­ly show that the death penal­ty is sev­er­al times more expen­sive than life impris­on­ment, with recent esti­mates around the coun­try rang­ing from 2.5 to 5 times the cost. Factors con­tribut­ing to high­er costs in cap­i­tal cas­es include a larg­er, unique­ly qual­i­fied legal defense team; more com­plex pre­tri­al pro­ce­dures, tri­als, and appeals; addi­tion­al secu­ri­ty and staff dur­ing tri­al and incar­cer­a­tion; and expen­sive drugs and mate­ri­als for exe­cu­tion. These costs are com­pound­ed when pros­e­cu­tors decide to pur­sue anoth­er death sen­tence even after their own mis­con­duct has result­ed in an order for a new tri­al. Nine of the 14 indi­vid­u­als (64%) stud­ied here have been per­ma­nent­ly removed from death row because they were resen­tenced to life, had their sen­tences com­mut­ed, or in the case of Mr. Flowers, were exon­er­at­ed. These nine peo­ple col­lec­tive­ly had at least 43 cap­i­tal tri­als or sen­tenc­ing pro­ceed­ings fund­ed by tax­pay­ers, only for juries, courts, or pros­e­cu­tors to ulti­mate­ly deter­mine that life in prison was the appro­pri­ate sen­tence.³

Richard Jordan is sched­uled to die in Mississippi on June 25 on the basis of his fourth death sen­tence — even though the state pre­vi­ous­ly agreed that his crime did not mer­it the death penal­ty. When a court held that Mr. Jordan’s third death sen­tence was unlaw­ful because the tri­al judge had improp­er­ly exclud­ed mit­i­gat­ing evi­dence regard­ing his good behav­ior in prison, the state offered him a plea deal and he was resen­tenced to life in 1991. As part of the agree­ment, pros­e­cu­tors acknowl­edged mit­i­gat­ing cir­cum­stances includ­ing Mr. Jordan’s ​“remorse, his record of hon­or­able ser­vice and dis­abil­i­ty incurred in the mil­i­tary dur­ing the Vietnam War, his good behav­ior in prison, and his sig­nif­i­cant con­tri­bu­tions to soci­ety while incar­cer­at­ed.”⁴ But when that life sen­tence was inval­i­dat­ed in court for pro­ce­dur­al rea­sons, the pros­e­cu­tors reneged on their promise and suc­cess­ful­ly secured a fourth death sentence. 

Three Supreme Court jus­tices dis­sent­ed from the denial of review of Mr. Jordan’s appeal in 2015, with Justice Sonia Sotomayor writ­ing that Mr. Jordan should have been able to present evi­dence to a low­er court ​“that the prosecutor’s deci­sion to seek the death penal­ty after hav­ing agreed to a less­er sen­tence was uncon­sti­tu­tion­al­ly vin­dic­tive.” Justice Stephen Breyer also dis­sent­ed from denial of review in Mr. Jordan’s case in 2018, high­light­ing Mr. Jordan’s four-plus decades of incar­cer­a­tion and the ​“geo­graph­ic arbi­trari­ness” of his death sen­tence as rea­sons Justice Breyer believed the death penal­ty to be categorically unconstitutional. 

If Mr. Jordan’s exe­cu­tion pro­ceeds, he will become the first per­son exe­cut­ed in the mod­ern era whose death sen­tence was over­turned three times due to con­sti­tu­tion­al errors. He will be the fourth known mil­i­tary vet­er­an put to death this year,⁵ and at age 79, the third-old­est per­son exe­cut­ed in the mod­ern era.⁶ His exe­cu­tion is sched­uled to take place 49 years after he was first sen­tenced to death.

Individuals Sentenced to Death Four or More Times for Same Crime

See DPI’s Death Penalty Census for more infor­ma­tion about each indi­vid­ual and their death sentences.