RESOURCES: Death Sentences in Texas Are Fewer and More Geographically Isolated

A new report on the death penalty in Texas found that death sentences have declined by more than 75% since 2002, and more than half of all new death sentences were imposed in the Dallas-Fort Worth area this year, while no new death sentences were imposed in Harris County (Houston) for the third time in five years. The report, Texas Death Penalty Developments in 2012: The Year in Review by the Texas Coalition to Abolish Death Penalty, stated there were 9 new death sentences in 2012, near the record low since the death penalty was reinstated in 1976.  According to TCADP, racial patterns continue to persist in the use of the death penalty: "Seven of the new death row inmates in 2012 are African-American, one is Hispanic, and one is a white female.  Over the last five years, nearly 75% of death sentences in Texas have been imposed on people of color – 46% African-American and 28% Hispanic.” Kathryn Kase, Executive Director of the Texas Defender Service, remarked, “Although Texas is using the death penalty less, the state still uses it disproportionately on people of color. This is a recurring problem and Texas’ failure to fix it demonstrates how broken its capital punishment system is.”

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SENTENCING: No Death Sentences in North Carolina for the First Time Since 1977

No new death sentneces were imposed in North Carolina in 2012, marking the first time since 1977 that this has occurred. The state had a record-low of four capital trials in 2012. Thomas Maher, executive director of North Carolina’s Indigent Defense Services, said, “In some ways, it’s a milestone. In other ways, it’s part of a trend.” In 2000, juries in the state presided at 57 capital trials, ultimately yielding 18 death sentences. In 2011, there were 12 capital trials resulting in 3 death sentences. North Carolina has not carried out an execution since 2006. This declining use of the death penalty is in line with a broader national trend. In 2011, there were 78 new death sentences in the U.S., a 75% drop from 1996, when 315 individuals were sentenced to death. It was the first time since 1976 that the country produced fewer than 100 death sentences in a single year.

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STUDIES: Colorado's Death Penalty Rarely Applied and Arbitrary

A new study conducted by law professors Justin Marceau (left) and Sam Kamin (middle) of the University of Denver and Wanda Foglia (right) of Rowan University found that the death penalty in Colorado is applied so rarely as to render the system unconstitutional.  The authors concluded that Colorado's death penalty law is applicable to almost all first-degree murders, but is imposed so infrequently that it fails to provide the kind of careful narrowing of cases required by the Supreme Court in Furman v. Georgia (1972).  In this groundbreaking study, the researchers reviewed all first-degree murder cases in the state between 1999 and 2010. They found that 92 percent of the 544 first-degree murder cases in that time span contained at least one aggravating factor that made the defendant eligible for the death penalty. However, prosecutors filed notices of intent to seek the death penalty in only 15 murder cases and pursued the death penalty at trial in only five of those cases — a 1% rate among death-eligible cases. The authors wrote, “Under the Colorado capital sentencing system, many defendants are eligible but almost none are actually sentenced to death. Because Colorado's aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment.”

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Use of the Death Penalty in California Declines in Key Counties

Use of the death penalty in California has declined in recent years. There have been no executions in six years, and the number of death sentences in 2011 dropped sharply from previous years.  District Attorney Mark Peterson of Contra Costa County said his office tries to be smart on crime rather than automatically seeking death. "People here want us to be tough on crime, but they want us to be smart on crime," he said. "Even though we might personally believe a defendant deserves the death penalty, it doesn't do us any good to take a hard stance if the community isn't going to support it.  The statistics bear out that the number of death penalty cases have gone down over the years," Peterson said. "It's been almost two years without a death verdict and for the ninth largest county in the state, I think that says a lot.  For the vast majority of eligible cases, we don't seek the death penalty," he said. A recent Field Poll found that while support for the death penalty in California continues, there is also a growing tendency of voters to favor life in prison without parole over capital punishment. Elisabeth Semel, professor of law at Berkeley Law School, explained that public opinion can influence the decision of prosecutors. She said, "Prosecutors are increasingly willing to use the punishment of life without the possibility of parole and recognize that it is more acceptable to the general public. The decreasing popularity of the death penalty ... has an influence in the decision." Laurie Levenson, professor of law at Loyola Law School in Los Angeles, agreed: "The whole tenor in both the criminal justice system and in the community has changed in regard to the death penalty," she said. "Prosecutors realize, in the end, it might not be worth it." 

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NEW VOICES: South Carolina Officials Point to Costs and Uncertainty for Death Penalty's Decline

Use of the death penalty has decreased in South Carolina, and some state officials are pointing to the high costs and uncertainty of capital punishment as reasons for this decline. The state has had only one execution in the past three years, and the size of death row has declined almost 30% since 2005.  No one was sentenced to death in 2011.  Prosecutor David Pascoe initially planned to seek the death penalty for a mother who killed her two children, but later changed his mind, with cost being one factor:  "Once you file for the death penalty, the clock gets moving and the money, the taxpayers start paying for that trial," he said.  Representative Tommy Pope (pictured), a state legislator and former prosecutor who sought the death penalty for Susan Smith in a similar murder, now would tell victims' families to consider agreeing to a life-without-parole sentence instead of the death penalty.  Life without parole was adopted by the state in 1995.  It "allow[s] them a measure of closure that three retrials in a death penalty case never would," Pope said. 

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STUDIES: Researchers Find Racial Disparities in Delaware's Death Penalty

A new study published on the Social Science Resource Network by a group of professors at Cornell University found a high incidence of racial disparities in the operation of Delaware’s death penalty. The study, published in conjunction with a symposium honoring the late David Baldus (pictured), examined the state’s death penalty since 1972 and found:
- Of 49 defendants sentenced to death since 1972, 53% were black, 39% were white, and 8% were Hispanic or Native American. In contrast, 69% of Delaware’s population is white, 21% is black, and 8% are Hispanic.
- Thirty-five of the 49 cases (73%) involved a white victim. Of the current death row inmates, 59% were convicted of murdering white victims and 41% were convicted of murdering black victims.
- Of the current death row population in Delaware, 59% are black, 23% are white, and 18% are Hispanic. Combined, the minority population comprises 77% of the state's death row. Nationally, the minority population accounts for approximately 56% of the death row population.
- Even when compared to southern states, Delaware's rate of death sentencing for black defendants with white victims is unusually high; it is 75 percent higher than the next highest states, Georgia and Nevada, more than twice as high as that of South Carolina or Virginia, and more than three times as high as that of its near neighbors, Maryland and Pennsylvania.  Read full text of study here.

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STUDIES: Military Death Sentence More Likely for Defendants of Color

A recent study published in the Journal of Criminal Law and Criminology about the U.S. Military death penalty system found that racial disparities among those sentenced to death are worse in the military than in other criminal courts.  The study, conducted by Catherine Grosso of Michigan State's College of Law, the late David Baldus of the University of Iowa College of Law, and others, reviewed all potentially death-eligible military prosecutions from 1984 to 2005 and identified 105 death-eligible murder cases. The study found that defendants of color in the military are twice as likely as white defendants to be sentenced to death. The researchers said the disparities against defendants of color “sharply distinguishes the military system from the typical civilian system” at a “magnitude that is rarely seen in court systems.” In typical studies on the civilian side, the likelihood of a death sentence increased when the victim in the underlying crime was white, and was even more pronounced if the defendant was a person of color. In U.S. military courts, however, discrimination based on the race of defendant - regardless of the race of victim - was more prominent. The researchers argued that limiting the military death penalty to the most aggravated and heinous crimes - e.g., murder of a commissioned officer or a premeditated attack on U.S. troops resulting in death - would reduce racial disparities. Grosso concluded, “If race is on the table, if it puts a thumb on the scale, that’s injustice.  These findings speak for themselves. They reflect how the military criminal justice system is operating, and it can do better.” Read the Study.

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RACE: Historic Hearing Begun in North Carolina Under New Anti-Bias Law

The first hearing under North Carolina's Racial Justice Act convened at the beginning of February for death row inmate Marcus Robinson. The Racial Justice Act was passed in 2009, allowing death row inmates to use empirical and statistical data to demonstrate racial bias in their conviction or sentencing. Following changes in North Carolina's legislature in the 2010 elections, there were efforts to repeal the Act.  Governor Perdue vetoed a repeal bill and the legislature could not override her veto.  Robinson, who is black, was sentenced to death for a 1991 murder of a white victim. He  is seeking to have his sentence reduced to life without parole by showing racial bias in the jury selection for his trial. Barbara O’Brien, an expert in this area from Michigan State University, testified that state prosecutors in capital trials excluded qualified black jurors at more than twice the rate of qualified non-black jurors. For Robinson’s jury pool, qualified blacks where 3.5 times more likely to be rejected. O’Brien said, “Being black does predict whether or not the state will strike the potential juror, even when controlling for these other variables.” Robinson’s hearing is expected to conclude by mid-February, and the presiding judge’s decision will shape the way the new law is interpreted in the future. Other studies in North Carolina have shown that those who murder white victims are more likely to receive the death penalty than those who murder black victims.

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STUDIES:"Death Penalty for Female Offenders"

Professor Victor Streib (pictured) of the Ohio Northern University Law School has published the latest edition of his periodic reports, Death Penalty for Female Offenders. This study offers statistics and information related to women who have been executed or are currently on death row.  Among the report’s findings are:
- In 2011, women constituted 6.4% of all persons sentenced to death, the highest percentage for any year since 1973.
- As of the end of 2011, fifty-eight (58) women were on death row, 18 of whom are in California, which hasn’t executed a woman since 1962.
- California, Texas and Florida were the leading states for sentencing women to death from 1973 through 2011.
- A total of 174 death sentences were imposed upon female offenders from 1973 through 2011. These 174 death sentences for female offenders constitute just 2.1% of all death sentences imposed during the same time period.
- Approximately 50% of the women on death row received the death penalty for killing a husband, boyfriend, a related child, or a child in her care.
-There have been 12 executions of women since the death penalty was reinstated in 1976, just under 1% of all executions in that time.

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STUDIES: Part II on N.Y. Times Editorial "The Random Horror of the Death Penalty"

(On January 10, DPIC posted an item about an editorial in the New York Times criticizing the arbitrariness of the death penalty.  That editorial relied heavily on the research of Prof. John Donohue (pictured) of Stanford Law School and his study of the Connecticut death penalty.  This post looks further at the underlying study.)  Prof. Donohue's research found that out of thousands of murders committed in Connecticut between 1973 and 2007, only one resulted in an execution of the defendant. He concluded that "the state’s record of handling death-eligible cases represents a chaotic and unsound criminal justice policy that serves neither deterrence nor retribution. . . .At best, the Connecticut system haphazardly singles out a handful for execution from a substantial array of horrible murders," and that "arbitrariness and discrimination are defining features of the state’s capital punishment regime."

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