NEW RESOURCES: Connecticut Study Reveals Arbitrariness in Death Cases

Professor John Donohue of Yale University's School of Law recently conducted a study of death sentences in Connecticut and found that seeking the death penalty often correlated with the race of the victim and the defendant, and not necessarily with the severity of the crimes, as the law requires. "There was basically no rational system to explain who got the death penalty," Donohue said. "It really is about as random a process as you can possibly construct."

After reviewing 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution, the study found:

  • Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.
  • Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.
  • Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.

The study is being used in a suit brought by death row inmates in the state challenging the constitutionality of the way the death penalty is being applied. The state has contested the findings of the study.  Read the study in full here.

(DAVE COLLINS, "Yale study: racial bias, randomness mar Conn. death penalty cases," Associated Press, December 12, 2007).

See Arbitrariness and Studies.

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NEW RESOURCES: Native Americans and the Death Penalty David Baker has written a thorough and insightful analysis of how the death penalty in the U.S. has been used against Native Americans. In "American Indian Executions in Historical Context," Baker places the execution of Native Americans within the history of colonialism, slavery and the conquering of indigenous tribes in early America. The article traces these developments to the current era, about which the author concludes:
The trend in American Indian executions during the present historical period of self determination shows a significant increase in Indian executions during the 1990s. The 15 American Indian executions since 1973, in many cases, accent the problems endemic to contemporary capital punishment schemes—increasing rates of voluntary executions, botched executions, racist prosecutorial discretion, and ineffective capital defense counsel. In these cases, all the victims were white and the American Indian defendants largely suffered from severe alcoholism, drug abuse, and mental illness. In most cases, defendants came from predictable backgrounds of abject poverty, alcoholic and abusive parents, and violent family histories.
David Baker is an Associate Professor of Sociology at Riverside Community College in California. He has also collected a comprehensive list of all executions of Native Americans in U.S. history.
(20 Criminal Justice Studies 315–373 (No. 4, December 2007)). Read the article. See Race.

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U.S. Supreme Court to Address Discriminatory Jury Selection in Death Penalty Case

On Tuesday, Dec. 4, the U.S. Supreme Court will hear arguments in Snyder v. Louisiana, a case involving a black defendant sentenced to death by an all-white jury after the prosecution used its peremptory strikes to exclude all of the qualified black jurors.  During Allen Snyder’s 1996 trial for the murder of a man his estranged wife was dating, prosecutor James Williams of Jefferson Parish urged the all-white jury to sentence the defendant to death so that Snyder would not "get away with it" like O.J. Simpson. Simpson was acquitted of a highly publicized double homicide less than a year before. The defense challenged the selection of the jury as a violation of equal protection, but Snyder's conviction was upheld by the Louisiana Supreme Court.

In 2005, the U.S. Supreme Court reversed the conviction of Texas death row inmate Thomas Miller-El because of the prosecution's racially discriminatory jury strikes. The Court not only looked at the credibility of the reasons the prosecutor gave for eliminating individual black jurors, but also drew inferences from the cumulative effect of the prosecutor's actions throughout the process.  When Snyder's case first came before the Supreme Court, it was remanded back to Louisiana in light of the Miller-El ruling.

Before the trial, the prosecutor had made public references comparing Snyder's case to O.J. Simpson's, but he promised the trial judge that he would not make such references before the jury. This same prosecutor reportedly displayed on his desk a toy electric chair with pictures of the faces of the five black men he had sent to death row pasted to it. Two of the people Williams sent to death row were exonerated after it was discovered that prosecutors had failed to disclose exculpatory evidence.  Jefferson Parish was known for having supported white supremacist David Duke in various elections.
(Posted November 30, 2007). Read the Petitioner's and State's briefs here. Amicus briefs have also been filed in support of Snyder by the Constitution Project and Religious Ministers of Jefferson Parish. 

See also U.S. Supreme Court and Race.

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American Bar Association Report Urges Death Penalty Reforms in Pennsylvania

According to a new report from a team of investigators sponsored by the American Bar Association (ABA), flaws in Pennsylvania's death penalty system are so pervasive that the state risks executing an innocent person. "The problems found in this assessment strike at the very heart of Pennsylvania's justice system," stated ABA president-elect H. Thomas Wells, Jr. The five-member Pennsylvania assessment team that conducted the review urged a series of important death penalty reforms designed to improve capital defense representation and reduce the likelihood of false confessions, crime-lab errors, witness misidentification and racial disparities. In addition to the reform recommendations, the ABA called on Governor Ed Rendell to order a more comprehensive study of Pennsylvania's death penalty.

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Atlanta Journal-Constitution Series

MORE STAYS GRANTED On October 24, the U.S. Court of Appeals for the 11th Circuit granted a stay of execution to Daniel Siebert, who was to be executed in Alabama on Oct. 25. On Oct. 22, the Georgia Supreme Court granted another stay, this time to Curtis Osborne. These stays are related to the issue of lethal injection as the U.S. Supreme Court considers the matter.

According to “A Matter of Life or Death,” a recent four-part news series published by the Atlanta Journal-Constitution, Georgia’s death penalty is “as predictable as a lightning strike.” Based on an investigation of 2,328 murder convictions in Georgia between January 1, 1995, and December 31, 2004, the paper determined that the state’s capital punishment system is unfairly shaped by racial and geographic bias, and fails to reserve the death penalty for “the worst of the worst.”

The AJC reporters worked with University of Maryland criminologist Ray Paternoster to examine the cases. Though their investigation determined that 1,315 of these cases involved crimes that made defendants eligible for the death penalty, prosecutors sought it in only 25% of those cases. Of those that faced a capital trial, only 1 in 23 was sentenced to death. “It’s like a roulette wheel. Arbitrariness is a weakness of the death penalty,” observed former Georgia Chief Justice Norman Fletcher.

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EDITORIAL: Atlanta Journal Constitution Calls for Abolition of Georgia's Death Penalty

In an editorial that followed a four-part news series reviewing death penalty-eligible murder cases in Georgia between 1995 and 2004, the Atlanta Journal Constitution called on the state to abandon capital punishment because death sentences are often unfairly influenced by geography, a prosecutor's personal politics, or the victim's race. The paper also said that Georgia fails to meet minimum standards to ensure an accurate and fair capital punishment system, noting:

For criminal cases involving the most severe punishment that society can inflict, justice has never been blind. As we're learning, it probably never can be.

But if society chooses to inflict death, it has an obligation to do so fairly. A death sentence should not be arbitrary and capricious, imposed on some but not on others who are guilty of even more heinous crimes.

And because a death sentence is absolute, it should be imposed only in cases where the person's guilt is absolutely certain, and it should be imposed based on clear standards in the law, not on the human biases and prejudices that afflict all of us.

The death penalty as it is imposed here in Georgia does not meet those minimum standards.

For example:

• District attorneys in metro Atlanta counties such as DeKalb and Fulton routinely offer defendants in capital crimes the option of pleading guilty and facing life sentences without hope of parole.

But in similar cases elsewhere in the state, prosecutors seek and win death penalty sentences, making the punishment irrational.

"It would make as much sense just to execute every 10th or every 100th murderer [as] it would be to figure out the rhyme or reason for why we're picking the ones to get the death penalty," as Atlanta defense attorney Jack Martin noted.

• Race has played a role in the administration of justice in this country since its founding. That ugly and intractable dynamic is still evident today; according to a statistical analysis of more than a thousand cases, prosecutors in Georgia were twice as likely to seek the death penalty if the victim was white than if the victim was black. In the more specific category of murders carried out during an armed robbery, defendants were an astonishing six times as likely to face death sentences if the person they killed was white.

• The Georgia Supreme Court has the responsibility to scrutinize death sentences to ensure the penalty is being applied uniformly statewide, based on precedents set in earlier cases. But former and sitting justices openly admit that their "proportionality reviews" have often been woefully sloppy and inaccurate.

In the vast majority of 159 such reviews undertaken since 1982, the justices have cited cases as precedent that had actually been dismissed, overturned or reversed on appeal, including some that had been overturned by the justices themselves. Only 14 of those 159 proportionality reviews cited no cases that had been reversed.

In 1972, citing evidence that the death penalty in Georgia was being applied in a similarly arbitrary manner, the U.S. Supreme Court threw out death-penalty laws here and in 39 other states as well. Since then, laws have been rewritten and processes and safeguards allegedly tightened, but to little apparent effect.

The difficulties of fairly, accurately and efficiently carrying out the death penalty in Georgia are further illustrated by two prominent cases in the news. The first involves Brian Nichols, charged in a sensational 2005 killing spree that left four people dead, including a judge, his court reporter, a sheriff's deputy and a federal agent. The proceedings have been repeatedly delayed by controversy over the cost of Nichols' state-appointed legal defense, which has now reached more than $1.8 million.

The multiple crimes alleged to have been committed by Nichols are at least as heinous as those that have put other people on Death Row. But even if Nichols is found guilty, at this point the odds of a death sentence being imposed and carried out against him appear pretty slim. If that assessment proves valid, it would add to the already overwhelming evidence of the arbitrary nature of the death penalty in Georgia.

The second Georgia case involves the fate of Troy Anthony Davis, who was convicted in 1991 of killing a Savannah police officer and has been sitting on death row ever since. Davis was convicted based exclusively on eyewitness testimony, which in other cases has proved notoriously unreliable, especially when no supporting physical evidence existed. For example, in cases in which DNA evidence has exonerated felons of crimes they did not commit, faulty eyewitness reports often turns out to have played a central role in the original conviction.

In the Davis case, the uncertain nature of eyewitness testimony is compounded by the fact that most of the prosecution witnesses have since recanted or contradicted their testimony naming Davis as the killer. Yet Davis was one day from execution before state officials agreed to a temporary stay to examine his case more carefully.

Georgia's death penalty law can and should be updated to try to wring as much unfairness as possible from the system, but reform can never eradicate the possibility of error, and it can never remove human bias and prejudice from the process. Imposing the absolute penalty requires absolute justice, and in the absence of that, the death penalty ought to be abolished.

(Atlanta Journal Constitution, September 27, 2007). See Editorials, Innocence, and Race.

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NEW RESOURCES: American Bar Association Sponsored Study Calls for Death Penalty Moratorium

According to a new study released by the American Bar Association, Ohio's capital punishment system is so flawed that it should be suspended while the state conducts a thorough review of its fairness and accuracy. The study, conducted by a 10-member panel of Ohio attorneys appointed by the ABA, found that the state's death penalty is prone to racial and geographic imbalances and that it meets only four of the 93 ABA recommendations to ensure a fair capital punishment system. "Regardless of one's views of the morality of the death penalty, it is beyond question that if Ohio is to have a death penalty it needs to be one that is fair, accurate and provides due process to all capital defendants and those on death row. Unfortunately, this is not the case," said Phyllis Crocker, a Cleveland State University law professor and member of the Ohio review team.

Among the panel's key recommendations were the following:

  • Ohio should ensure that it provides adequate opportunities for death row inmates to prove their innocence. This includes improved preservation of biological evidence while inmates are incarcerated, creation of nationally-certified crime laboratories, videotaping of all interrogations in potentially capital cases, and implementation of lineup procedures that protect against incorrect eyewitness identification. In addition, the report recommends that Ohio Governor Ted Strickland supplement the state's current clemency process by appointing a commission to conduct investigations, hold hearings, and test evidence, to review cases of factual innocence in capital cases.
  • Ohio should ensure that all capital defendants and death row inmates who are poor receive competent lawyers. The panel noted that Ohio does not have safeguards in place to ensure competent representation in all cases. It urged compliance with the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. It also urged lawmakers to better compensate defense attorneys to ensure high quality representation, and to provide defense teams with sufficient funds for access to experts and investigators.
  • Ohio should exempt people with severe mental disabilities from the death penalty. The panel found that while Ohio does protect those with mental retardation from facing the death penalty, it does not extend this protection to those with other types of serious mental disorders.
  • Ohio should eliminate racial and geographic bias from its death penalty system. As part of its assessment, the ABA conducted a racial and geographic disparity study which looked at death sentences in Ohio between 1981 and 2000. The review found that those who kill white victims are 3.8 times more likely to receive a death sentence than those who kill black victims. It also found that the chances of receiving a death sentence in Hamilton County are 2.7 times higher than in the rest of the state, 3.7 times higher than in Cuyahoga County, and 6.2 times higher than in Franklin County.
  • Ohio should provide increased discovery in state post-conviction appeals. The panel noted that Ohio denies petitioners access to discovery procedures necessary to develop post-conviction claims. The ABA criticized an existing policy that allows reporters and other members of the public to use the public records law to obtain materials in support of post-conviction claims, but prohibits a petitioner from using this law to obtain these same documents.

A spokesperson for Gov. Strickland said that he is reviewing the report and its recommendations.
(Associated Press, September 25, 2007, and ABA Death Penalty Moratorium Implementation Project Ohio Death Penalty Assessment Report, September 2007). Read the report and supporting documents. See also Arbitrariness, Race, Representation, Mental Illness, Innocence, and Studies.

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NEW RESOURCES: Study Finds Blacks Who Kill Whites More Likely to be Executed A new Ohio State University study has found that blacks convicted of killing whites are not only more likely than non-whites to receive a death sentence, but also more likely to be executed. Blacks on death row for killing non-whites are less likely to be executed than others on death row. "Examining who survives on death row is important because less than 10% of those given the death sentence ever get executed," said David Jacobs (pictured), co-author of the study and professor of sociology at Ohio State University. "The disparity in execution rates based on the race of victims suggests our justice system places greater value on white lives, even after sentences are handed down." Jacobs notes that this is the first study to examine how the race of victims impacts the probability that an offender will be executed.

Jacobs conducted the study with Ohio State sociology professor Zhenchao Qian, Jason Carmichael of McGill University, and Stephanie Kent of Cleveland State University. The group examined the outcomes of 1,560 people sentenced to death in 16 states from 1973 to 2002. Their findings showed that there is more than a 2-fold greater risk that an African-American who killed a white person will be executed than there is for a white person who killed a non-white person. Jacobs observed, "Overall, we found that our justice system is not colorblind, even after offenders are put on death row. White lives are still valued more than black ones when it comes to deciding who gets executed and who does not." The study is published in the August 2007 edition of the American Sociological Review and the research was funded by the National Science Foundation.
(Research News, Ohio State University, July 21, 2007). Read the article about the study. See Race and Studies.

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NEW RESOURCE: "Uneven Justice: State Rates of Incarceration by Race and Ethnicity"

Uneven Justice: State Rates of Incarceration by Race and Ethnicity is a new report by The Sentencing Project that examines the racial and ethnic dynamics of incarceration in the U.S. with tables by state and by race. The report notes that African Americans are incarcerated at nearly 6 times the rate of whites and Hispanics are incarcerated at nearly double the rate of whites. One in nine (11.7%) African American males between the ages of 25 and 29 is currently incarcerated in a prison or jail.

The report extends the findings of previous analyses by incorporating jail populations in the overall incarceration rate and by assessing the impact of incarceration on the Hispanic community, representing an increasing share of the prison population. The report notes: "In 2005, Hispanics comprised 20% of the state and federal prison population, a rise of 43% since 1990. As a result of these trends, one of every six Hispanic males and one of every 45 Hispanic females born today can expect to go to prison in his or her lifetime. These rates are more than double those for non-Hispanic whites."

"Racial disparities in incarceration reflect a failure of social and economic interventions to address crime effectively and also indicate racial bias in the justice system," stated Marc Mauer, Executive Director of The Sentencing Project. "The broad variation in the use of incarceration nationally suggests that policy decisions can play a key role in determining the size and composition of the prison population."

("Uneven Justice: State Rates of Incarceration By Race and Ethnicity," The Sentencing Project, July 2007). Read the report. See Studies and Race.

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ACLU Releases Report on Racial Disparities in the Federal Death Penalty

The federal death penalty impacts racial minorities differently than it does whites according to a recent report from the American Civil Liberties Union. The report, The Persistent Problem of Racial Disparities in the Federal Death Penalty, notes that defendants of color make up the majority of the federal death row. And the risk of a case being authorized for the death penalty is 84% higher in cases where the victim is white, regardless of the race of the defendant. The report pointed to earlier Justice Department statistics that showed that almost twice the percentage of white defendants had the possibility of a death sentence being removed through plea bargaining than the percentage of defendants of color.

In light of this evidence, the ACLU called for a moratorium on the federal death penalty and for Congress to conduct a study to examine the racial disparities. The group also recommended passage of a Racial Justice Act to allow capital defendants to use statistics as evidence of racial bias, as well as a law requiring the Department of Justice to report on its implementation of the federal death penalty.

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