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New Jersey Marks Tenth Anniversary of Abolition of Capital Punishment

On December 17, 2007, New Jersey abolished the death penalty. On the tenth anniversary of abolition, the editorial board of the New Jersey Law Journal writes, "On the Death Penalty, New Jersey Got it Right." The editorial board wrote, “Abolition has proven its worth, in that there has been no surge of murders, a significant decline of prosecution and appeal expenses, and the elimination of unremediable judicial mistakes. [Abolition] was and remains both the right thing and the sensible thing to have done.” In August 1982, New Jersey reenacted the death penalty, six years after the United State Supreme Court decision in Gregg v. Georgia upheld the constitutionality of state capital punishment laws. However, no defendant was ever executed in the state. In January 2006, the state legislature passed a bill creating the New Jersey Death Penalty Study Commission and imposing a moratorium on executions until the commission issued its report. The study commission’s report, released on January 2, 2007, recommended abolishing capital punishment. Among other findings, the commission determined that the costs of imposing the death penalty were “greater than the costs of life in prison without parole” and that there was “no compelling evidence that the New Jersey death penalty serves a legitimate penological intent.” Less than a year later, Governor Jon Corzine signed legislation abolishing the death penalty. Murders fell in New Jersey after the moratorium and repeal bills became law, marking the first time since 1999 that New Jersey experienced a drop in murders for two consecutive years. One year after repeal, New Jersey prosecutors reported that the abolition had not hindered prosecution of the state’s most violent offenders. The Law Journal editorial board said that, after a decade, the study commission’s assessment that the death penalty was not a deterrent to murder “has proven its worth." The murder rate in New Jersey has been lower than it was in 2007 for eight of the past nine years and a 2017 DPIC study of murder rates over the last three decades found no difference in murder trends based upon whether a state had, or did not have, capital punishment. A December 15 statement released by the Catholic Bishops of New Jersey hailed the state’s abolition of the death penalty “as a victory for the dignity of life.” The Bishops wrote that while they “affirm the state’s duty to punish criminals, to prevent crime, and to assist victims,” they also “recognize the need to improve our criminal justice system and to forge a greater societal commitment to justice.” Society, they said, “has effective ways to protect itself and to redress injustice without resorting to the use of the death penalty.”


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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."


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BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."


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Utah County Fires Lawyer Who Criticized Its Underfunding of Death-Penalty Appeals

A Utah county has fired an appeals lawyer who had publicly criticized the county's underfunding of death-penalty cases. Attorney Samuel Newton (pictured)—hired by Weber County to handle the appeals of condemned prisoners Douglas Lovell and Floyd Maestas, as well as other indigent criminal defendants in the county—had his contract terminated by County Commissioner James Harvey, who said Newton's comments to the media about underfunding were "harmful to the county's reputation." Harvey also criticized Newton for assertedly spending too much time developing a relationship with his clients when "all the state wants to know is if the appropriate decision has been made." The American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases require that a capital defense attorney "establish a relationship of trust with the client, and should maintain close contact with the client." Newton had previously withdrawn from Lovell's case after arguing that the financial strain placed upon him from the county's funding cap, and the county's interference with his ability to communicate with his client, has caused him stress-related heart problems. In an email to the Salt Lake Tribune, Newton said that “[t]he state gives enormous resources to the prosecution” and "must similarly commit to equally and adequately support criminal defense attorneys, which is a right guaranteed by the United States Constitution.” He said that defense attorneys—and especially solo practitioners such as himself—“should not have to personally bear and front the financial cost for the enormous review required in a capital case.” The payment dispute with Weber County, Newton said, left him feeling as thought he "had to choose" between supporting his family financially and effectively representing his clients. Commissioner Harvey told Newton that his contract to handle the appeals of indigent Weber County defendants has been terminated effective January 31. Harvey said, "I don’t agree with giving a guy an open checkbook because he wants to create a relationship with a convicted felon on the taxpayers' dime." In a letter to the judge, Lovell wrote, “For the first time, I got an attorney who represented me to the fullest, … who knows my case inside & out & now the county had pulled the rug on funding him." Ralph Dellapiana, chairman of the Utah Association of Criminal Defense Lawyers capital defense committee, said that the state should not expect capital defense attorneys to work for free. “That’s a problem, the state refusing to pay qualified counsel to do the necessary work for appeals in death penalty cases,” he said. “And the solution is either to pay for it or end the death penalty.”

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Anti-Death Penalty District Attorney Elected in Philadelphia, the Nation's 3rd Largest Death Penalty County

Philadelphia, Pennsylvaniathe nation's third largest death-penalty county—has elected as its new district attorney a candidate who ran on a platform of ending mass incarceration and eschewing use of the death penalty. Democrat Lawrence Krasner (pictured), a longtime civil rights lawyer and opponent of the death penalty, who once joked that he’d “spent a career becoming completely unelectable,” received 75% of the vote in easily defeating his Republican opponent Beth Grossman. As a civil rights and criminal defense attorney, Krasner had represented political protesters and Black Lives Matter activists, and had sued the Philadelphia Police Department on numerous occasions. He has likened use of the death penalty to "lighting money on fire,” saying that capital punishment “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962.” A July 2015 DPIC analysis of death sentences imposed in Philadelphia reported that at least 148 death sentences imposed in the city since Pennsylvania reinstituted the death penalty in 1974 had been overturned. In that time, one prisoner from Philadelphia—who voluntarily dropped his appeals—was executed. Krasner called his election a "mandate" for "transformational change." He said, "[t]his is a story about a movement. And this is a movement that is tired of seeing a system that has systematically picked on poor people—primarily black and brown poor people." Those are the people who, historically, have been most disproportionately affected by Philadelphia's death penalty. A major study of Philadelphia's death penalty in the 1980s and 1990s documented that black capital defendants faced more than triple the odds of being sentenced to death than did other defendants, and that an estimated one-third of the more than 100 African Americans who were on the city's death row at the turn of the century would have received life sentences but for their race. Another study showed that death-sentencing in the city was heavily influenced by a defendant's physical appearance: the probability that a black defendant charged with killing a white victim would be sentenced to death doubled if the defendant was perceived as having "stereotypically African" physical features—darker skin, a broader nose, and thicker lips. Even as the number of death sentences imposed in Philadelphia has dramatically declined—falling from an average of 9.9 death sentences per year in the 1990s to less than one sentence per year this decade—the racial disproportionality of the death sentences imposed in the city has grown. Nine of the 99 death sentences imposed in Philadelphia in the 1990s were directed at white defendants, as compared to only one of the 25 death sentences imposed this century, and 45 of the last 47 people sentenced to death in the city have been defendants of color. 


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New Report Documents “Dramatic Rise” in Republican Support for Death-Penalty Repeal

"The death penalty is dying in the United States, and Republicans are contributing to its demise," concludes a new report, The Right Way, released on October 25 by the advocacy group Conservatives Concerned About the Death Penalty. The report traces "the dramatic rise in Republican sponsorship of bills to end the death penalty" and the trends that it says helped contribute to this rise. Based on this data, the report says "[m]ore Republican lawmakers are recognizing that the death penalty is a broken policy and taking an active role in efforts to end it." The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bi-partisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, "ten times as many [who] sponsored repeal bills ... in 2000." It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty. In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican "red states." In Kansas, the state Republican Party "removed its death penalty support from the Party’s platform in 2014" in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly "forsak[ing] the death penalty," pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the new policy of position the National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws. Recent national polls confirm the report's observations. The October 2017 Gallup poll on the death penalty indicated that death-penalty support among Republicans fell by ten percentage points, from 82% to 72%, in the last year, and the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Right Way highlights the actions of five Republican state legislators' efforts to repeal capital punishment in predominantly Republican states, and addresses the substantive concerns that have given rise to Republican death-penalty opposition. "Plagued by wrongful convictions, high costs, and delays," the report says, "the death penalty has proven to be ineffective and incompatible with a number of core conservative principles. It runs afoul of conservative commitments to limited government, fiscal responsibility, and a culture of life." As renewed pushes to abolish the death penalty move forward in states like Utah and New Hampshire, the Gallup organization suggests that the actions of Republicans may be critical in determining the death penalty's future. It's analysis of this year's poll states: "Thirty-one states, primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future."


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Death-Penalty Prosecutions Create Million-Dollar Budget Burden for South Dakota County

County Commissioners in Pennington CountySouth Dakota have approved budget increases of a half-million dollars each for the county's courts and its public defender office for 2018, largely as a result of two high-profile death-penalty prosecutions. Taxpayers will shoulder most of the financial burden resulting from the capital prosecutions of Rapid City defendants Jonathon Klinetobe and Richard Hirth, charged with murder, kidnapping, and conspiracy in the disappearance and death of Klinetobe’s ex-girlfriend, Jessica Rehfeld, in 2015. A third man involved in the alleged plot avoided the death penalty by agreeing to plead guilty and cooperate with the prosecution. In preparation for their trials, the public defender’s office in Pennington County, the state's second most populous, requested a $567,000 increase over and above its current $2.4 million budget. The county courthouse, which pays court-appointed attorneys, requested an increase of $530,000 above its already $1.4 million budget. The county prosecutor's office will also receive a $135,000 increase to its $5.1 million budget. The County Commissioners approved the increases on September 26. Eric Whitcher, director of the Pennington County Public Defender’s Office, said death-penalty cases are “exceedingly expensive” and taxpayers can “reasonably expect” to pay between $500,000 to $1 million in trial-related costs. His June 13 letter to the county auditor’s office stressed that additional funding was essential to cover "substantial expenditures" for expert evaluations, travel expenses, and witness fees. The public defender's office, which represents Klinetobe, is prohibited from representing both defendants, requiring the appointment of private counsel for Hirth. The court has appointed two private lawyers in his case, and Klinetobe is represented by one private lawyer, in addition to two lawyers from the public defender’s office. About $200,000 of the new funding granted to the public defender’s office has been earmarked for Klinetobe’s defense alone. Holli Hennies, county commission office manager, said in June that budget increases would largely be funded from property tax collections. 


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Prosecutors Seeking Death Sentences for Aging Defendants Despite Taxpayer Cost, Likelihood of Dying Before Execution

Two cases in which prosecutors have elected to pursue the death penalty against aging or infirm defendants who will almost certainly never be executed have raised questions about the costs and benefits of capital charges and the arbitrary exercise of prosecutorial discretion. Federal prosecutors in Missouri are seeking the death penalty against 61-year-old Ulysses Jones Jr., a man with terminal renal disease, for the 2006 killing of another prisoner at a federal prison hospital. At the same time, Philadelphia's judicially-appointed interim district attorney, filling the unexpired term of a district attorney convicted of public corruption charges, is pursuing the death penalty against 64-year-old Robert Lark in the retrial of a 1979 murder. Lark won a new trial in 2014, seven years after Philadelphia prosecutors appealed a lower federal court ruling that they had unconstitutionally struck African Americans from serving as jurors in Lark's case because of their race. Jones is currently facing a capital sentencing hearing in the United States District Court for the Western District of Missouri after having been convicted on October 4 of murdering 38-year-old Timothy Baker with a makeshift knife in January 2006 at the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. Jones has been receiving dialysis for the last 30 years, and the medical center, known as Fed Med, houses the nation’s largest dialysis center. Two other prisoners, Wesley Paul Coonce Jr. and Charles Michael Hall, are on federal death row for another murder at Fed Med. Jones's lawyer, Thomas Carver, argues that the capital trial is senseless, both because Jones is already serving a life sentence for two unrelated robberies and murders, and because, if he is sentenced to death, he will likely die before his appeals process is complete, and almost certainly before an execution would be scheduled. "We're talking millions of dollars here," Carver said. Carver believes Jones—whom the defense says has significant intellectual and cognitive impairments—was not indicted until 2010 "because the government was hoping he would die.” In Lark's case, Interim Philadelphia District Attorney Kelley Hodge has decided to seek the death penalty even though Lark's appeals in his case, if he were sentenced to death, would not be completed before Lark was in his late-70s or his 80s, far beyond his expected survival on death row. Marc Bookman, a longtime Philadelphia public defender who now serves as Director of the Atlantic Center for Capital Representation, called the decision to seek death, made "by a prosecutor chosen by Philadelphia judges rather than one chosen by the community[,] ... a needless step backward" for Philadelphia. Quoting Lawrence Krasner—who overwhelmingly won the Democratic nomination for Philadelphia district attorney after campaigning on a promise not to seek the death penalty and is heavily favored in the November general election—Bookman says, “We have to stop lighting money on fire.” Krasner has said that the death penalty “has cost Pennsylvania taxpayers over $1 billion, yet no one on Pennsylvania’s death row has been put to death involuntarily since 1962,” and his Republican opponent, Beth Grossman has publicly "wonder[ed] whether [the death penalty] is at this point even economically feasible.” In February 2015, Pennsylvania Gov. Tom Wolf declared a moratorium on executions, noting that Pennsylvania’s failing death-penalty system forced “the families and loved ones of victims to relive their tragedies” with each reversed death sentence. The only certainty in the current system, he said, “is that the process will be drawn out, expensive, and painful for all involved.”


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BOOKS: End of Its Rope—How Killing the Death Penalty Can Revive Criminal Justice

"The death penalty in the United States is at the end of its rope [and] its abolition will be a catalyst for reforming our criminal justice system." So argues University of Virginia Law Professor Brandon L. Garrett in his widely anticipated new book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which analyzes the reasons behind the steep decline in capital punishment in over the last 25 years. With the help of other researchers at the University of Virginia, Garrett analyzed death-sentencing data from 1990 to 2016, county by county. He found that numerous interrelated factors contributed to the decline: the drop in murders across the country, the creation of institutional capital defender offices that greatly improved the quality of representation, the availability of life without parole as a sentencing option, the cost of the death penalty system, and growing public awareness of exonerations and the risk of wrongly sentencing innocent defendants to death, fueled further by the abolition of capital punishment in some states and the abandonment of capital prosecutions by many counties. Local culture had a profound effect on death sentencing practices: Garrett found that states and counties that most frequently executed people developed what he terms a “muscle memory” for the practice and “imposed far more death sentences just as a function of having done so in the past." But, the converse was also true: when a county stopped sentencing people to death, it was less likely to resume the practice. Garrett found that death sentences have now all but disappeared from rural America, and are now imposed mainly in larger, urban areas. Garrett told the The Marshall Project, "we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a 'white lives matter' effect," he said. In an interview with University of Virginia publicists, Garrett described the death penalty as "a failed experiment." He said states’ recent efforts to reform death-penalty procedures to “save the death penalty from itself” have failed because “the bias, both racial and geographic, is too ingrained. Lawmakers have tried to speed up executions, but have instead seen more delays and botched executions. They have tried to insist on higher-quality proof, and have still seen exonerations of innocent death row inmates." Garrett hopes that as the death penalty wanes, the lessons learned can buttress other efforts to reform America's criminal justice system and to move away from "mass incarceration and harsh punishment more broadly.”


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North Carolina Decline in Death Verdicts Highlights Penalty's Cost, Ineffectiveness

Death sentences are sharply down in North Carolina and the combination of cost concerns and more effective representation have made them progressively rare. In an interview with The Hickory Daily Record, David Learner, District Attorney for the 25th prosecutorial district encompassing Catawba, Caldwell, and Burke counties, who has personally tried two death-eligible cases, says “It’s extraordinarily difficult to get a death verdict. ... [Y]ou come to realize it’s very difficult for a jury seated in that box to say ‘yes, you need to kill that man.'” Murder cases in which the death penalty may be sought are defended by five regional capital defender offices, which have a record of effectively investigating cases and negotiating non-capital outcomes. According to statistics maintained by the North Carolina Office of Indigent Defense Services (NCIDS), from 2007 to 2015, nearly 60% of capital prosecutions ended with non-capital convictions for second-degree murder or less, and only 2.2 percent of all capital cases in the state resulted in death sentences. In Wake County, juries have returned life verdicts in eight consecutive capital sentencing trials. When a case is charged, Assistant Capital Defender Victoria James told the paper, "you know what happened, but you don’t know why it happened.... And that’s where you get into the client’s mental health, provocation, and many times, those are the kind of cases you hope to be able to resolve without going to trial.” With representation by the regional capital defenders, there have been only 5 death sentences in the state over the past five years, down from 140 death sentences imposed 20 years ago in the five years spanning 1992-1996. No one has been executed in the state since 2006 and most of the 262 prisoners who the North Carolina Department of Public Safety (NCDPS) says have been removed from death row have been resentenced to life in prison without the possibility of parole after their convictions or death sentences were overturned. Although 98% of North Carolina cases that start out as capital do not end up with a death sentence, pursuing the death penalty has had significant financial consequences. NCIDS reports that, in fiscal years 2007 to 2015, the average costs were 4.4 times higher in a capital case ($93,231 per case) than when prosecutors did not pursue the death penalty ($21,022 per case). A Duke University study in 2009 concluded that repeal of the death penalty would have produced approximately $10.8 million in annual savings from reduced expenditures on murder cases. Between 2008 and 2013, the percentage of cases in which prosecutors have sought the death penalty has fallen from 28.1% to 11%, and budget cuts to the North Carolina Attorney General's office have shifted to local district attorneys the cost of criminal appeals that used to be handled by state prosecutors. “This thing about, ‘we need to execute him,’ the actual mechanics of the court system, it’s not happening,” Learner said. “Realizing the reality of the death penalty in North Carolina through the court system, it’s really about worthless.” Looking to the future, he said, “I wouldn’t be surprised if North Carolina eventually had a moratorium or completely dismantled the death penalty.”


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