DPIC Analysis: The Decline of the Death Penalty in Philadelphia
During his election campaign, Philadelphia District Attorney Larry Krasner described the economic wastefulness of city prosecutors' pursuit of the death penalty as "lighting money on fire." A DPIC analysis of the outcomes of the more than 200 death sentences imposed in the city since 1978 (click image to enlarge) and the last seven years of capital prosecution outcomes provides strong support for Krasner's claim. Data tracking the final dispositions of cases in which Pennsylvania prosecutors had provided notice of intent to seek the death penalty showed that between 2011 and 2017, 98.7% of the 225 cases in which Philadelphia prosecutors had sought the death penalty ended with a non-capital outcome. Similarly, 99.5% of the 201 death sentences imposed in the city—mostly in the 1980s and 1990s—have not resulted in an execution. Two thirds of the convictions or death sentences have already been reversed in the courts and 115 of the former death-row prisoners have since been resentenced either to life sentences (101) or a term of years (11) or been exonerated (3). The single execution was of a severely mentally ill man whom courts initially found incompetent to waive his rights, but was later permitted to be executed.
DPIC Executive Director Robert Dunham announced the results of the DPIC analysis at the National Constitution Center in Philadelphia at a news conference conducted by the death-row exonerees' organization Witness to Innocence. Dunham said that the data showed Philadelphia's pursuit of the death penalty has been "a colossally inefficient" waste of judicial resources and "a colossal waste of money."
Death sentences imposed in Philadelphia peaked in the first term of District Attorney Ronald Castille's administration in 1986-1989, when an average of 11.25 death sentences per year were imposed. 99 more death sentences were imposed in the decade of the 1990s. By 2001, 135 prisoners were on Philadelphia's death row, and the 113 African Americans on its death row were more than in any other county in the United States. Since then, death sentencing rates have plummetted, falling to 1.5 per year in 2006-2009, the final term of District Attorney Lynn Abraham's administration, and to fewer than one a year this decade, during the administration of Seth Williams. But even as the number of death sentences fell, the proportion of defendants of color sentenced to death in Philadelphia increased. In the past two decades, 82.6% of the defendants sentenced to death in Philadelphia have been African American. Of the 46 defendants sentenced to death in Philadelphia since 1997, 44 (95.7%) have been defendants of color.
Krasner's campaign pledge not to use the death penalty, Dunham said, was a "natural conclusion" of the steep decline in death penalty usage in the city.
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Supreme Court to Review Mississippi Death-Penalty Case in Which Prosecutor Systematically Excluded Black Jurors
The U.S. Supreme Court has agreed to review whether a prosecutor with a long history of racially discriminatory jury-selection practices unconstitutionally struck black jurors in the trial of Mississippi death-row prisoner Curtis Giovanni Flowers (pictured). On November 2, 2018, the Court granted certiorari in the Flowers’s case on the question of “[w]hether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky,” the landmark 1986 Supreme Court decision barring the use of discretionary strikes to remove jurors on the basis of race.
Flowers has been tried six times for a notorious 1996 quadruple murder in Winona, Mississippi. He was prosecuted each time by Doug Evans, the District Attorney in Mississippi's Fifth Circuit Court District since 1992. Flowers was convicted by all-white or nearly all-white juries based on questionable circumstantial evidence and the testimony of a jailhouse informant (who has since recanted) that Flowers had confessed to the murders. Court pleadings and the American Public Media (APM) podcast series, In the Dark, have cast doubt upon much of the evidence in the case, and a prominent pathologist who examined the autopsy reports and crime scene photograph has disputed the prosecution’s theory that the murder was committed by a single perpetrator.
In the Dark conducted a study of jury selection in the Fifth Circuit Court District during the 26-year period from 1992 to 2017 in which Evans was District Attorney, analyzing prosecutorial strikes or acceptances of more than 6,700 jurors in 225 trials. APM found that throughout Evans's tenure, prosecutors struck prospective black jurors at nearly 4½ times the rate of white prospective jurors. In Flowers’s case, Evans struck nearly all of the African-American jurors in each trial. In his first three trials, the Mississippi Supreme Court overturned Flowers’s convictions because of prosecutorial misconduct, with courts finding that Evans had violated Batson in two of those trials. The fourth and fifth trials ended in mistrials. In the sixth trial, in June 2010, Evans accepted the first qualified African-American potential juror and then struck the five remaining African Americans in the jury pool. Flowers challenged the prosecution’s jury strikes on appeal, but the Mississippi Supreme Court, over the dissents of three justices, rejected his claim. In June 2016, the United States Supreme Court vacated the state court’s ruling and returned the case to the Mississippi Supreme Court to reconsider the issue in light of the Court’s decision one month earlier in Foster v. Chatman, finding that prosecutors in a Georgia capital case had unconstitutionally stricken jurors because they were black. However, over the dissents of three justices, the Mississippi Supreme Court again affirmed, writing that the prior adjudications that Evans had already twice violated Batson “do not undermine Evans’ race neutral reasons” for striking black jurors in the sixth trial and that “the historical evidence of past discrimination ... does not alter our analysis.” The U.S. Supreme Court has not yet set a date for oral argument in the case.
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NEW PODCAST: The Death Penalty and Human Dignity; Lessons From the Anti-Slavery Movement
“[T]he issue of race and the death penalty is not unique to the death penalty, it’s part of the broader problem with the criminal justice system,” says Bharat Malkani (pictured), author of the 2018 book Slavery and the Death Penalty: A Study in Abolition, in a new Discussions With DPIC podcast. In the October 2018 DPIC podcast, Malkani—a senior lecturer in the School of Law and Politics at Cardiff University in the United Kingdom—speaks with DPIC’s executive director Robert Dunham and Ngozi Ndulue, DPIC’s Director of Research and Special Projects. They discuss the historical links between slavery, lynching, Jim Crow, and the death penalty and the lessons modern opponents of capital punishment can learn from the strategies employed by slavery abolitionists.
Malkani explores the parallels between the institutional approaches of conservative and moderate anti-slavery activists and the arguments of modern conservatives and contrasts them with the broad morality-based arguments of radical slavery abolitionists, who, he says “fought not just for the abolition of slavery, but for the recognition of the dignity of black people and the equal dignity of black people, alongside whites.” The conservative and moderate opponents of slavery, he said, “focused on slavery as a standalone social issue,” rather than as “a symptom of a much broader problem with the social order. ... And we know in hindsight that one of the problems with [those] anti-slavery voices was that it entrenched the problems of racial subjugation.”
Malkani recognizes that pragmatic arguments based upon innocence, the costs of capital punishment, and systemic failures in the way capital punishment is administered have a role to play in efforts to end the death penalty, but argues that “in the longer term, the morality-based arguments, based on a recognition of dignity, will have a greater social impact.” History teaches “that we cannot think of the death penalty as separate [from] America’s history of slavery and racial violence,” he says. Death-penalty abolitionists, he says, must keep “the bigger, longer-term picture” in mind. “The issue here is not just the problems with the death penalty in practice, but the underlying values that lend support for the death penalty. ... If we do not tackle the values that underpin the problem and question the values that underpin the death penalty, then we’re just going to entrench the problems that lead to the death penalty.”
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Study: Racial Disparities in Death Penalty Begin with Investigations and Arrests
A study of more than three decades of homicide arrests suggests that racial disparities in arrests and policing practices introduce an additional layer of bias in the application of the death penalty in the United States. While earlier research has documented that the race of victims affects prosecutors' decisions to seek the death penalty, and juries' and judges' decisions to impose death sentences, a new study by Professors Jeffrey Fagan of Columbia University (pictured, left) and Amanda Geller of New York University (pictured, right) has found that those disparities appear even earlier in the process, at the arrest stage. "[H]omicides with white victims are significantly more likely to be 'cleared' by the arrest of a suspect than are homicides with minority victims," the authors write. Since death-penalty prosecutions must begin with an arrest in a capital-eligible murder, these clearance rates create a disproportionately larger pipeline of white-victim cases. Fagan and Geller examined every homicide recorded in the FBI's Supplementary Homicide Reports from 1976 to 2009, uncovering county-level patterns in the "clearance rate" (the rate at which cases are closed by the arrest of a suspect). Counties with higher proportions of minority residents had lower clearance rates than counties with whiter populations, but the authors say that county characteristics alone do not completely account for the disparities. Rather, they say that broader policing practices also play a role. "Inequalities in policing, such as the underpolicing of the most serious crimes in the most disadvantaged communities, coupled with overpolicing of the least serious offenses in those same places, seem to extend to the initial stages of the production of death sentences and executions," they write. They attribute the lower clearance rates of black-victim cases in part to distrust of police in communities of color, resulting in less willingness to cooperate in investigations. "Perceived injustices can disincentivize citizens from cooperating with the police," they explain, "including both 'petty indignities' and egregious acts of police violence." Thus, discriminatory policing practices contribute to disparate clearance rates, which in turn contribute to the discriminatory application of capital punishment.
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Following Washington Death Penalty Abolition, Op-eds Encourage Other States to Follow Suit
Following the Washington Supreme Court's October 11, 2018 decision declaring the state's death penalty unconstitutional, news outlets have questioned what comes next. Op-ed writers in North Carolina, Texas, and California have responded, urging their states to reconsider their capital punishment laws. The Washington court cited racial bias, "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as reasons why it struck down the death penalty. In a guest column in the Sacramento Bee, University of California Berkeley School of Law Dean Erwin Chemerinsky wrote, "California’s death penalty suffers the same flaws and likewise should be struck down." Similarly, Kristin Collins, Associate Director of Public Information at the Center for Death Penalty Litigation, wrote in a commentary for the North Carolina blog, The Progressive Pulse, "[i]f those are reasons to outlaw the death penalty, then it is surely time for the North Carolina death penalty to go." Writing in the Austin American-Statesman, University of Texas sociology professor William R. Kelly observed: "In light of the ever-present potential for error and bias, the absence of a deterrent effect and the extraordinary cost to prosecute, appeal and execute someone, we are left with the basic question: Is the death penalty worth it? It’s a question more states ought to ask."
Collins and Chemerinsky pointed to systemic problems in their respective states that they say provide reasons to repeal the death penalty or declare their capital punishment statutes unconstitutional. Collins said a September 2018 study by the Center for Death Penalty Litigation revealed that "most of the people on N.C. death row are only there because they had the bad luck to be tried under outdated laws, before there were basic legal protections to ensure fairness at their trials." "Had they been tried under modern laws," she wrote, "most wouldn’t be on death row today." Chemerinsky highlighted the lengthy delays in California's death-penalty system and the large body of evidence showing that the state's death penalty is discriminatorily applied. Quoting federal Judge Cormac Carney's summary of the state of California's death row, he wrote: "Indeed, for most, systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death." These types of problems "and the fact that the death penalty is extraordinarily expensive and does not do much to deter violent crime," Professor Kelly wrote, "may help propel other states to abolish it."
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Washington Supreme Court Declares State's Death Penalty Unconstitutional
Finding that the death penalty "is imposed in an arbitrary and racially biased manner," a unanimous Washington Supreme Court has struck down the state's capital-punishment statute as violating Washington's state constitutional prohibition against "cruel punishment." The court's ruling, authored by Chief Justice Mary E. Fairhurst and issued on October 11, 2018, declared: "The death penalty, as administered in our state, fails to serve any legitimate penological goal; thus, it violates article I, section 14 of our state constitution." The decision also converted the sentences of all eight people on the state's death row (pictured) to life imprisonment without possibility of release. The court's action makes Washington the twentieth U.S. state to have judicially or legislatively abolished the death penalty, and the eighth to have done so this century. Governor Jay Inslee, who imposed a moratorium on all executions in 2014, hailed the ruling, saying, "Today’s decision by the state Supreme Court thankfully ends the death penalty in Washington. ... This is a hugely important moment in our pursuit for equal and fair application of justice.”
The court issued the ruling in the case of Allen Gregory (pictured, bottom row, second from the right), an African-American man sentenced to death for the rape and murder of a white woman. In declaring the death penalty unconstitutional, the court cited recent research that found Washington juries were more than three times more likely to impose a death sentence on a black defendant than on a white defendant in a similar case. "Given the evidence before this court and our judicial notice of implicit and overt racial bias against black defendants in this state, we are confident that the association between race and the death penalty is not attributed to random chance," the opinion stated. The opinion also cited "arbitrary decision-making, random imposition of the death penalty, unreliability, geographic rarity, and excessive delays" as systemic constitutional flaws supporting the court's decision.
Washington has not carried out an execution since 2010. King County Prosecutor Dan Satterberg said that the court's ruling had finally brought to an end "Washington's four-decade experiment with the death penalty." Satterberg, a Republican, who with Democratic Attorney General Bob Ferguson supported bipartisan legislation to abolish Washington's death penalty, said "I think the criminal justice system will be stronger without capital punishment." The abolition bill, which was the subject of legislative hearings during the 2018 state legislative session, passed the Washington Senate and the House judiciary committee, but did not receive a vote in the full House.
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Filming Underway for Movie Adaptation of ‘Just Mercy’
Filming for the movie adaptation of Bryan Stevenson's best-selling book, Just Mercy, began August 27, 2018 in Montgomery, Alabama. The film will feature Michael B. Jordan (Creed, Black Panther) as Stevenson and Oscar-winner Jamie Foxx (Ray, Django Unchained) as wrongfully convicted death-row prisoner Walter McMillian. Stevenson, the founder of the Equal Justice Initiative, represented McMillian — a Black man framed for the 1986 murder of an 18-year-old White woman in Monroeville, Alabama — in McMillian's appeal of his conviction and death sentence. Like the book upon which it is based, the movie will tell the story of that representation and McMillian's exoneration from death row. McMillian was convicted in a trial that lasted only a day and a half. The prosecution presented three witnesses who falsely implicated McMillian in the murder. The jury — composed of eleven Whites and one African American — ignored the testimony of six African-American alibi witnesses who had been with McMillian at a church fish fry at the time of the murder. Although the jury convicted McMillian, the jurors recommended that he be sentenced to life. However, the trial judge overrode the jury’s sentencing verdict and instead sentenced McMillian to death. The Alabama Court of Criminal Appeals affirmed the conviction and death sentence on appeal, but Stevenson's investigation revealed that prosecution witnesses had lied and that prosecutors had illegally hidden evidence that proved McMillian's innocence. After Stevenson filed a motion for a new trial, the appeals court on February 23, 1993, reversed McMillian’s conviction and ordered a new trial. One week later, on March 2, 1993, prosecutors dismissed the charges against McMillian and he was released. After spending six years on death row, McMillian was exonerated. The film is expected to open in early 2020.
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BOOK: Slavery and the Death Penalty
"It is widely recognized that capital punishment in the United States of America continues to be imbued with the legacy of slavery" and, to end it, American death-penalty abolitionists "should draw on the radicalism of [anti-slavery] abolitionists." So argues British death-penalty scholar and abolitionist Dr. Bharat Malkani, a Senior Lecturer at the Cardiff University School of Law and Politics, in his new book, Slavery and the Death Penalty: A Study in Abolition. Malkani's book explores the historical and conceptual links between slavery and capital punishment and the efforts of abolitionist to end both practices. His book contrasts the discourse of conservative and pragmatic anti-death penalty activists, which he says accepts the legitimacy of the institutional machinery of capital punishment and the moral values of harsh retributivism, with arguments that "emphasize the inherent dignity of the person facing execution." He says the lessons of history suggest that the latter, "expressly rooting anti-death penalty efforts in the idea of dignity," is more effective. Malkani looks closely at the practical and psychological links between slavery and capital punishment, which he finds to be clear and inescapable. "The imposition of death sentences discriminates along racial lines and is disproportionately imposed on the poor, just as slavery was marked by divisions over race and class. Executions have occurred mainly, albeit not exclusively, in former slave states — the same places that witnessed the highest frequencies of lynchings. And," he writes, "capital punishment, like slavery, is predicated on the notion that some people do not belong to the political and moral human community." Malkani analogizes contemporary "conservative" and "pragmatic" anti-death penalty arguments that portray the death penalty as a failed government program or that focus on the economic costs of capital punishment to the approach of those anti-slavery advocates who argued for incremental legal restrictions on slavery or called for the gradual emancipation of only some slaves. He argues that the morality-based approach of more radical slavery abolitionists — emphasizing that the inhumanity of slavery violated the dignity of the slave, the slaveholder, and the community as a whole — has greater social impact. He believes that the arguments of many modern-day anti-death penalty activists focus too narrowly on the death penalty, giving too much credence to life in prison without parole as a viable option. These arguments, he writes, ignore the broader social injustices omnipresent within the United States' administration of the criminal laws. "[C]ontemporary anti-death penalty efforts," he writes, "must be radical in their visions, in order to inspire much-needed changes to the tendency to view some people’s lives as less valuable than others."
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Congressional Black Caucus Asks Oklahoma Governor to Review Case of Julius Jones
The Congressional Black Caucus has urged Oklahoma Governor Mary Fallin to review the case of death-row prisoner Julius Jones (pictured) and to use her authority to correct what it characterized as his "wrongful conviction." In an August 21, 2018 letter to the Governor, the Black Caucus — an organization of African-American members of the U.S. House of Representatives — expressed its "deep concerns" about racial bias in the application of the death penalty in Oklahoma and the risk of executing an innocent person. Jones' case, it said, fell "[a]t the nexus" of those issues. Jones, an African-American honor student who was co-captain of his high school football, basketball, and track teams, was convicted and sentenced to death for the murder of a white businessman. His conviction relied heavily on the testimony of his co-defendant, Christopher Jordan, who avoided the death penalty and was given a substantially reduced sentence in exchange for his testimony against Jones. According to the letter, "[t]wo prisoners even heard Mr. Jordan bragging that he set-up Julius, and that he would get out of prison in 15 years in exchange for his testimony." Jones did not fit the description of the murderer given by the victim's sister, but Jordan did. However, Jones' lawyers, the letter emphasized, had no capital trial experience, "failed to show the jury a photograph of Mr. Jones, taken a few days before the shooting ... that [proved] he could not be the person who the victim's sister described," and "did not put on a single witness to testify during the guilt-innocence phase of his trial." The letter said Jones' case also "was plagued by a racially charged investigation and trial," and his sentence was tainted by the "profound inequity in the application of the death penalty based on race." Jones' current attorneys recently uncovered evidence that one of his jurors used a racial slur during the trial. "One juror reported telling the judge about another juror who said the trial was a waste of time and 'they should just take the [n-word] out and shoot him behind the jail,'" the letter states. The Oklahoma Court of Criminal Appeals has agreed to consider this new evidence, and Jones also has a petition pending before the U.S. Supreme Court. Relying on a 2017 study on race and death sentencing in the state, that petition argues that Oklahoma's death penalty unconstitutionally discriminates on the basis of race. One key finding of that study, the letter said, is that "a black defendant accused of killing a white male victim in Oklahoma is nearly three times more likely to receive a death sentence than if his victim were a non-white male." The congressmembers also urged Gov. Fallin to address a range of systemic reforms suggested by the Oklahoma Death Penalty Review Commission, including reforms to eyewitness identification procedures, forensic science reform, regulating the use of informants, and recording custodial interrogations. "Major reform is needed to the criminal justice system to ensure that the fair and impartial process called for by the Death Penalty Study Commission becomes a reality," they write. "Given this backdrop, we strongly urge you to use the power of your office to put these recommended reforms in place."
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Amnesty International Issues Report on the Death Penalty in Florida
A new report by Amnesty International says Florida's approach to redressing the nearly 400 unconstitutional non-unanimous death sentences imposed in the state has deepened its status as an outlier on death-penalty issues by "add[ing] an extra layer of arbitrariness to [the state's] already discriminatory and error-prone capital justice system." The report, released on August 23, 2018, examines the impact of Florida's reponse to U.S. and Florida Supreme Court rulings in Hurst v. Florida and Hurst v. State that overturned the state’s capital sentencing statute. That response, Amnesty said, would permit the execution of more than 170 prisoners whom the state acknowledges were sentenced to death under unconstitutional sentencing procedures. Executing those prisoners, Amnesty wrote, will violate "well-established" international human rights law requiring that any person "convicted of a capital offence must benefit when a change of law following charge or conviction imposes a lighter penalty for that crime." In 2016, the Florida Supreme Court struck down a state practice that permitted judges to impose a death sentence despite the recommendations of one or more jurors that a life sentence should be imposed. However, the court then declined to enforce that ruling in cases that had completed direct appeal before the U.S. Supreme Court announced in Ring v. Arizona in June 2002 that capital defendants had a right to have a jury decide all facts that were necessary to impose the death penalty. The Amnesty International report described the Florida court's refusal to enforce the constitution in cases in which it acknowledged that constitutional violations had occurred as "fear of too much justice." "Finality won out over fairness when the Florida Supreme Court decided the Hurst retroactivity issue," the report said. The report highlights the cases of prisoners with serious mental illness, those with "actual or borderline intellectual disability," youthful offenders with backgrounds of severe deprivation and abuse who were condemned in unconstitutional sentencing trials, and the wrongful impact of race on sentencing decisions, and argues that Florida's refusal to review these cases is not only arbitrary, but also violates international human rights norms and the constitutional principle that the death penalty is supposed to be reserved for "the worst of the worst" cases. The report also discusses Florida's long history of employing unconstitutional death-penalty practices that were later overturned by the United States Supreme Court. It spotlights the case of James Hitchcock, who was unconstitutionally sentenced to death four times for a crime he committed at age 20. The first three times, his death sentence was overturned, including a landmark U.S. Supreme Court ruling striking down Florida's statutory restriction on the mitigating evidence the sentencing judge and jury could consider. The fourth time, he was sentenced to death after a non-unanimous jury vote, but was denied review of that constitutional violation. "The death penalty is no way to impart justice," said Amnesty's Americas Director, Erika Guevara Rosas. "Florida and all other states where the death penalty is still in use must impose immediate moratoriums on executions until they can end this cruel practice once and for all." In the meantime, the report urges all officials to “ensure an end to the use of the death penalty against anyone with intellectual disability or mental disability,” “ensure that all capital case decision makers are made fully aware of the mitigating evidence surrounding youth and emotional and psychological immaturity,” and “facilitate a public education campaign to raise awareness across Florida of the costs, risks and flaws associated with the state’s death penalty.”
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