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STUDIES: Electoral Pressures Influence Judges' Decisions in Capital Cases

"[E]lectoral pressures influence judges' decisions in capital cases," according to a new report by the Brennan Center for Justice at the New York University School of Law. That report, How Judicial Elections Impact Criminal Cases, surveyed numerous empirical studies that had reviewed the effects of judicial elections on outcomes in criminal cases. The vast majority of criminal defendants - including capital defendants - face elected judges at trial and on appeal. According to the report, 87% of state judges face election, and 94% of felony convictions are tried in state courts. The report found that "the pressures of upcoming re-election and retention campaigns make judges more punitive toward defendants in criminal cases" in general, but that these pressures also produced identifiable effects in death penalty cases. First, electoral pressures affected trial judges in capital cases. "In Alabama, with its unique system of judicial override, trial judges are more likely to impose death over jury verdicts of life imprisonment during election years," the report said. The report also found that "appellate judges facing re-election are more inclined to affirm death sentences, and less inclined to dissent from orders affirming them." Referencing a recent Reuters study, the report said states with elected supreme court justices had substantially lower rates of reversing death sentences on appeal than states with appointed justices. Justices who ran against other candidates for office were the least likely to vote to reverse a death sentence (11%), and those who faced retention elections reversed only 15% of the time. Justices who were appointed were comparatively more likely to vote to reverse death sentences (26%). The report concludes, "Empirical studies across states, court level, and method of election find that proximity to re-election makes judges more punitive — more likely to impose longer sentences, affirm death sentences, and even override life sentences to impose death. Without reform, terms of incarceration and executions will continue to be determined, in part, by the decision-maker’s proximity to re-election."


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STUDIES: Explaining Virginia's Disappearing Death Penalty

A new study by University of Virginia law professor Brandon Garrett (pictured) shows a dramatic decline in the death penalty in Virginia over the last decade. Virginia has carried out the third highest number of executions since the 1970s and historically has executed a higher percentage of its death-row prisoners than any other state. However, Garrett said there are now fewer than two capital sentencing trials per year and Virginia juries have not imposed any new death sentences since 2011. Reviewing Virginia capital proceedings from 2005 to 2014, Garrett found that "[a]lmost all capital cases are now plea bargained," with only 21 proceeding to a capital sentencing hearing. Juries imposed life sentences in more than half of those cases. Garrett found troubling trends in the evidence used in capital cases, which relied frequently on forms of evidence that have been found to be unreliable or susceptible to abuse, such as unrecorded confessions to police, informant testitmony, or eyewitness identifications. He also found significant geographic disparities in death penalty verdicts. “The ‘new’ Virginia death penalty is almost never imposed and when it is, a death sentence is so freakish that it raises the constitutional concerns with arbitrariness under the Eighth Amendment that U.S. Supreme Court justices have long expressed,” Garrett said. “Virginia may be a bellwether for the future of the American death penalty.” The study also compared sentencing proceedings in the past decade with 20 capital trials from 1996 to 2004 to try to explain the drop in death sentences. Garrett concluded that improved representation - both leading to pleas and in performance at trial - was the primary factor in the decline.   


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STUDIES: Elected High Court Judges Half as Likely as Appointed Judges to Overturn Death Sentences

A Reuters analysis of more than 2,000 state Supreme Court rulings in capital cases has found that elected judges are much less likely to overturn death sentences than judges who are appointed. In the 15 states in which the state Supreme Court is directly elected, justices overturned death sentences only 11% of the time as compared to a 26% reversal rate in the 7 states in which justices are appointed. 15 states have a hybrid system, where justices are initially appointed, but must then face election to remain on the bench; those states fell in the middle, with a 15% reversal rate. Tennessee Justice Gary Wade, who ran television ads during his re-election campaign touting the court's 90% rate of affirming death sentences, told Reuters, "Those who were employed to run the campaign believed that it was important for this court to have a demonstrated record, or willingness, to impose the death penalty." An Ohio defendant, Ashford Thompson, is arguing that politics played a role in the Ohio Supreme Court's 4-3 decision to uphold his death sentence in a decision rendered less than a week before two of the majority justices faced re-election. The justice who wrote that opinion was the beneficiary of a $600,000 advertising campaign that featured television ads praising her previous votes to uphold death sentences. Dissenting Justice William O'Neill wrote, "The majority’s failure to seriously engage in the weighing process provides yet another reason why, in my opinion, Ohio’s system of imposing and reviewing death sentences is unconstitutional."


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STUDIES: Louisiana Study Reports Stark Death-Penalty Disparities Linked to Race and Gender of Victims

A new study by Professor Frank Baumgartner of The University of North Carolina at Chapel Hill and Tim Lyman, a Documentation Specialist in New Orleans, reports stark disparities in Louisiana death sentences and executions depending upon the race and gender of the homicide victim. The study - to be published in the Loyola University of New Orleans Journal of Public Interest Law - finds that defendants accused of killing white victims are nearly twice as likely to be sentenced to death and nearly four times as likely to be executed than defendants accused of killing black victims. The disparities are even greater when both race and gender are compared. Defendants accused of killing white women are sentenced to death at nearly 12 times the rate of defendants accused of killing black men (56.94 vs. 4.88 death sentences per 1,000 homicides), and executed at a rate that is 48 times higher (11.52 vs. 0.24 executions per 1,000 homicides). The authors find that both the race and gender of victims affect sentencing outcomes in murder cases, but that death sentencing and execution rates are higher in cases involving white victims, irrespective or gender, and in cases involving female victims, irrespective of race. 72% of murder victims in Louisiana since 1976 have been black, but just 33% of death sentence have involved black victims. Cases involving black male victims had the lowest rate of death sentences and executions per homicide of any class of victim. 12,693 black males have been murdered in Louisiana since 1976 (61% of murder victims), with only 3 executions (0.02% of these murders; 8% of Louisiana executions). (Click image to enlarge)


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Stanford Law Professor Debunks Myth That The Death Penalty Deters Murder

In an op-ed for Newsweek, Stanford Law Professor John Donohue argues that there is "not the slightest credible statistical evidence that capital punishment reduces the rate of homicide" and presents data to show that the death penalty is not an effective deterrent. Comparisons between neighboring jurisdictions show no effect of capital punishment: "Whether one compares the similar movements of homicide in Canada and the U.S., when only the latter restored the death penalty, or in American states that have abolished it versus those that retain it, or in Hong Kong and Singapore (the first abolishing the death penalty in the mid-1990s, and the second greatly increasing its usage at the same), there is no detectable effect of capital punishment on crime." He cites a 2012 study by the National Academy of Sciences, which, "concluded that there was no credible evidence that the death penalty deters homicides." He also appeals to the psychology of crime and punishment: "Since murderers typically expose themselves to far greater immediate risks, the likelihood is incredibly remote that some small chance of execution many years after committing a crime will influence the behavior of a sociopathic deviant who would otherwise be willing to kill if his only penalty were life imprisonment." Donohue argues that a more effective way of reducing murders "is to take the resources that would otherwise be wasted in operating a death penalty regime and use them on strategies that are known to reduce crime," such as improved policing. Donohue concludes, "With zero evidence that the death penalty provides any tangible benefits and very clear indications of its monetary, human and social costs, this is one program about which there can be little debate that its costs undeniably outweigh any possible benefits."


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STUDIES: Racial Bias in Jury Selection

A new study of trials in Caddo Parish, Louisiana, revealed that potential jurors who were black were much more likely to be struck from juries than non-blacks. The results were consistent with findings from Alabama, North Carolina, and other parts of Louisiana, highlighting an issue that will be reviewed by the U.S. Supreme Court this fall. In Caddo Parish, an area known for its many death sentences, prosecutors used peremptory strikes against 46% of black jurors, but only 15% of other jurors, according to the study by Reprieve Australia. The racial composition of the juries appeared to make a difference in the ultimate outcome of the cases. The study found that no defendants were acquitted by juries with 2 or fewer black jurors, but 19% were acquitted when 5 or more jurors were black. In an Alabama study, prosecutors used peremptory strikes to remove 82% of eligible black potential jurors from trials in which the death penalty was imposed. A study of death penalty cases in North Carolina found that prosecutors struck 53% of black potential jurors but only 26% of others. (Click image to enlarge.)


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NEW RESOURCES: Capital Punishment and the State of Criminal Justice 2015

The American Bar Association has released a new publication, The State of Criminal Justice 2015, examining major issues, trends, and significant changes in America's criminal justice system. The chapter devoted to capital punishment was written by Ronald Tabak, an attorney at Skadden Arps and board member of the Death Penalty Information Center. Tabak presents evidence of the declining use of the death penalty in death sentences and executions, particularly noting the growing geographic isolation of the death penalty. He includes recent developments, such as the moratorium on executions in Pennsylvania and ongoing controversy and secrecy surrounding methods of execution. He also highlights numerous studies and cases regarding innocence and racial bias. He concludes, "[I]t is vital that the legal profession and the public be better informed about what is really going on in the capital punishment system.... Ultimately, our society must decide whether to continue with a system that cannot survive any serious cost/benefit analysis."


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New Study Shows Discrimination in Colorado Prosecutors' Use of Death Penalty

new study to be published in the University of Denver Law Review shows that whether prosecutors seek the death penalty in Colorado "depends to an alarming extent on the race and geographic location of the defendant." The study - based upon 10 years of data collected by attorney Meg Beardsley and University of Denver law professors Sam Kamin and Justin Marceau and sociology professor Scott Phillips - shows that race and place are statistically significant predictors of whether prosecutors will seek the death penalty in Colorado and that prosecutors are more likely to seek the death penalty against minority defendants than against white defendants. In a press release accompanying the release of the study, the researchers say the data "directly refutes the claims made by elected officials, that racial disparities merely reflect the propensity of certain races to commit more murders." The study also shows that, even after controlling for the rates at which different racial groups commit statutorily death-eligible murders and for the "heinousness" of the murders, non-white defendants and defendants in Colorado’s 18th Judicial District - where the capital trial of James Holmes for the Aurora movie theater killings is taking place - were more likely than others to be capitally prosecuted. 


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STUDIES: "Untrustworthy" Faces Increase Likelihood of Death Sentence

Two new studies suggest that a defendant's facial appearance predicts whether he is sentenced to life or to death, regardless of actual guilt or innocence. A study of Florida inmates published in the July 15 edition of Psychological Science finds that the perceived degree of trustworthiness of a defendant's face predicted which of the two sentences a defendant who has been convicted of murder ultimately received. A follow-up study also showed that the link between perceived untrustworthiness and the death penalty persisted even when study participants viewed innocent people who had been exonerated after having originally been sentenced to death. Researchers John Paul Wilson (pictured, l.) and Nicholas Rule (pictured, r.) of the University of Toronto showed participants photos of Florida inmates who had been convicted of first-degree murder and sentenced either to life without parole or death. Participants rated the trustworthiness of each face, without knowing that the person pictured had been convicted of any crime. The inmates who had been sentenced to death had faces that the raters perceived to be less trustworthy than the faces of those who had been sentenced to life. The less trustworthy a face was rated, the more likely it was that the inmate had been sentenced to death. "Here, we’ve shown that facial biases unfortunately leak into what should be the most reflective and careful decision that juries and judges can make — whether to execute someone," Wilson and Rule said. A follow-up study included the faces of individuals who had been convicted and later exonerated. Even among the exonerees, lower trustworthiness ratings correlated with higher likelihood of a death sentence. "This finding shows that these effects aren’t just due to more odious criminals advertising their malice through their faces but, rather, suggests that these really are biases that might mislead people independent of any potential kernels of truth," the authors explained.


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Childhood Trauma Prevalent Among Death Row Inmates

A majority of Texas death row prisoners who voluntarily responded to a recent survey by the Texas Observer reported having experienced abuse or other trauma as children. The survey results are consistent with the findings of academic studies that have repeatedly documented high rates of childhood abuse among those sentenced to death. The Texas Observer survey found that 22 of the 41 death row prisoners who responded (54%) volunteered having experienced "violent or abusive" childhoods. An additional nine death row prisoners (22%) described their childhoods as having been “hard,” typically citing impoverished conditions and high-crime neighborhoods. Psychiatric research shows that childhood trauma affects developing brains in lasting ways. "The Cycle of Violence," published by the American Psychological Association, found 94% of the 43 inmates studied had been physically abused, 59% sexually abused, and 83% had witnessed violence in adolescence. “Adverse Childhood Experiences and Adult Criminality,” a 2013 study published in The (Kaiser) Permanente Journal, compared a group of 151 offenders with a sample of the general population, finding that "the offender group reported nearly four times as many adverse events in childhood as the control group." Drs. Mark Cunningham and Mark Vigen, who reviewed the findings of seven clinical studies of death row prisoners for the journal Behavioral Sciences & the Law reported that the pathological family interactions experienced by capital murderers are consistent with an extensive body of research lnking the experience of abuse and neglect to later violence. Psychiatrist Frank Ochberg, founder and chairman emeritus of the Dart Center and a pioneer in the study of trauma, said that while "not all criminality is the product of childhood abuse[,] ... these early adverse situations reduce the resilience of human biology and they change us in very fundamental ways. Our brains are altered. And that’s what this research is bearing out.”


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