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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Prosecutors Accept Life Plea by Severely Mentally Ill Man in Killing of Texas Sheriff's Deputy
Texas prosecutors have dropped their pursuit of the death penalty against a severely mentally ill capital defendant charged with what they characterized as the "ambush murder" of a Harris County sheriff’s deputy. Special prosecutor Brett Ligon (pictured, left)—the Montgomery County District Attorney who was handling the prosecution because Houston prosecutors had a conflict that prevented them from participating in the case—announced on September 13 that he had agreed to a plea deal in which Shannon Miles (pictured, right) would be sentenced to life without possibility of parole in the killing of Sheriff’s Deputy Darren Goforth. Miles’s lawyers say that he has schizophrenia and episodic psychosis when he is not on psychiatric medication, that he has no memory of the murder, and that they intended to pursue an insanity defense in the case. In 2012, the trial court had declared Miles incompetent to be tried. In March of 2017, after treatment at a state mental hospital that had been delayed by a shortage of available beds, the court found Miles competent to stand trial. In explaining the plea deal, Ligon said "[t]he state's experts all came to the same conclusion, the likelihood of executing a mentally incompetent man was almost zero." The victim’s widow, Kathleen Goforth, said she supported to deal because her two children “have been spared” the ordeal of extended death-penalty proceedings. She said, “They will not have the backdrop of their lives, for the next 10 to 25 years, being court dates, trials and appeals…. They won't have that inflicted upon them and that is merciful. It's compassionate and it's the right thing to do." Harris County Sheriff Ed Gonzalez and Donald Cuevas, president of the Harris County Deputies Organization, said justice had been served by the plea deal. The plea had been entered against the backdrop of an emerging sex scandal. The sole grounds on which prosecutors could seek the death penalty in the case was if Officer Goforth had been killed in the performance of his duties. However, evidence had come to light that Goforth was at the gas station to meet his mistress, who was a witness to the murder and would be called upon to testify in the case. Two sheriff’s officers—one who was assigned to investigate the case—had been fired for having sexual relations with the woman, and a third had been fired for sending her an email soliciting sex. The Goforth murder once again focused attention on the role of mental illness in premeditated murders of police officers. In July 2016, in unrelated incidents, mentally ill Gulf War veterans who exhibited symptoms of Posttraumatic Stress Disorder fatally shot five police officers in Dallas, Texas and three in Baton Rouge, Louisiana. In July 2015, a Washington jury sentenced a mentally ill and delusional capital defendant, Christopher Monfort, to life without parole for the ambush murder of a Seattle police officer.
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Virginia, Pennsylvania Death Rows Smallest in a Quarter Century as Death Sentences Show Long-Term Decline
Death rows are shrinking nationwide, and the experience in states like Virginia and Pennsylvania helps explain why. Virginia's death row has fallen from a reported high of 58 in 1995 to four in September 2017, the lowest it has been since 1979. Pennsylvania's death row of 160 prisoners is its smallest in nearly 25 years—down from 175 last December and from a reported 247 in April 2002. These declines mirror the national trends, as the number of prisoners removed from death row continues to outstrip the number of new death sentences imposed. In May 2017, a Bureau of Justice Statistics report showed that the population of death row nationwide had decreased for 15 consecutive years. Although Virginia has executed more prisoners since 1976 than any other state but Texas, executions do not by themselves account for the magnitude of the decline, and Pennsylvania's death row has shrunk despite not having executed anyone this century. A combination of exonerations, court decisions overturning death sentences, commutations, and deaths while appeals were underway have also removed significant numbers of prisoners from the two Commonwealths' death rows. Moreover, as in states like Georgia and Missouri that have been among the nation's most prolific recent executioners, the increase in executions has been accompanied by a decrease in the number of new death sentences imposed by juries. State Delegate Robert B. Bell, a death-penalty proponent who chairs the Virginia State Crime Commission, said obtaining the death penalty has become “an arduous endeavor for prosecutors,” requiring expenditures of staff time and financial resources that small counties cannot afford. As in Georgia and Texas, which have experienced major declines in new death sentences, Virginia also has made trials fairer by creating regional capital defense offices that provide better representation to indigent defendants at trial and by informing juries that capital defendants who are sentenced to life in prison will not be eligible for parole. Low murder rates and historically low public support for the death penalty also have contributed to the decline in new death sentences. In Pennsylvania, more than fifty defendants have been removed from death row in the past decade as their convictions or death sentences were overturned and they were resentenced to terms of life or less, and more have had their sentences overturned in the interim. Recently, the removal of prisoners from the Commonwealth's death row accelerated after a federal appeals court struck down the state's long-standing practice of automatically keeping capital defendants in solitary confinement until they had completed their retrial or resentencing proceedings, even after courts had overturned their death sentences.
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Recent Jury Trials in Dallas Highlight Death Penalty Decline Across Texas
From 2007 to 2013, Dallas sentenced twelve capitally charged defendants to death—more than any other county in Texas—and Dallas ranks second nationally, behind only Harris County (Houston), in the number it has executed since 1972. But the county has not imposed any new death sentences since then, and the recent life sentences in the capital trials of Justin Smith and Erbie Bowser highlight a statewide trend away from the death penalty. Smith was charged with killing three and injuring two others in a drug-house robbery; Bowser, with killing four women and injuring four children in what has been described as "a two-city rampage." After hearing evidence of Bowser's prison adjustment after being medicated for mental illness, his jury split on whether he posed a future threat to society and he was sentenced to life without parole. When Smith's jury told the court it was split on whether he had proven mitigating circumstances, he agreed to accept a plea deal to life. Such outcomes are becoming more common in Texas. About half (7 of 15) of the death penalty trials in the state since 2015 have resulted in life sentences. The fact that prosecutors have taken death penalty cases to trial just 15 times in two-and-a-half years is itself a significant change. A combination of factors, including declining public support for capital punishment, the availability of a life-without-parole sentencing option, the high cost of death penalty trials, and concerns about innocence, have led prosecutors to seek death sentences less often. Former Montague County District Attorney Tim Cole said his views on the issue have shifted: "It is time for the death penalty to go away. My primary concern with it is we don't seem to get it perfectly.... The execution of one innocent person isn't worth it to me." He said he believes the option of life without parole has also contributed to the declining number of death sentences by giving prosecutors and jurors a severe alternative punishment. Paul Johnson, an attorney for Justin Smith, agreed: "[Jurors] know that if they don't give them death, they're going to die in prison anyway. Why put someone to death when you can give them life without parole?" In an editorial, The Dallas Morning News wrote, "[e]vidence continues to mount that this system is too ripe for mistakes." The newspaper lauded the state's progress in reducing death sentences, and pointed to recent legislation as further evidence of capital punishment's decline. A death penalty repeal bill was given public hearings this session, and legislators have passed and sent to the governor reforms aimed at reducing wrongful convictions. Under the new bill, "Police would be required to record interrogations, and prosecutors would have to provide jurors more information about testimony from so-called prison snitches. Stricter protocols also would be in place for eyewitness identification." (Click image to enlarge.)
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