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Missouri Judge Sentences Defendant to Death After 11 Jurors Had Voted for Life Sentence

A St. Charles County trial judge has sentenced a Missouri man to death two months after 11 of the 12 jurors in his case had voted to spare his life. On October 6, Judge Kelly Wayne Parker disregarded the near-unanimous vote of the jury on August 13 and imposed the death penalty upon former Dent County deputy sheriff and state correctional officer Marvin Rice (pictured) for murdering his ex-girlfriend, Annette Durham, during a custody dispute over their son. The judge also sentenced Rice to life for killing Durham's boyfriend, Steven Strotkamp, formally imposing the sentence unanimously agreed to by jurors when they convicted him of second-degree murder for that killing. No state in the United States authorizes a judge to override a jury's recommendation of a life sentence and the three states that had permitted the practice have ended it in the past two years. In April 2017, Alabama repealed the portion of its death-penalty statute that permitted judicial override of a jury's life recommendation. In March 2016, the Florida legislature repealed the judicial override provisions of its death-penalty statute. Shortly thereafter, in August 2016, the Delaware Supreme Court invalidated its death penalty statute, including its judicial override provisions. The Court ruled that judicial imposition of a death sentence after any juror voted for life violated the Sixth Amendment. Then in October 2016, the Florida Supreme Court held that judicial death sentences following a non-unanimous jury vote for death violated both the Sixth Amendment and the Florida constitution. Missouri law authorizes judicial sentencing in a capital case when the jury is "unable to decide or agree upon the punishment." In those circumstances, it declares that there is a hung jury, and the judge becomes the trier responsible for finding and weighing aggravating and mitigating evidence and pronouncing sentence. However, granting independent factfinding powers to a capital sentencing judge is itself constitutionally problematic: in January 2016, the U.S. Supreme Court ruled in Hurst v. Florida that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." At trial, Rice's lawyer, Charles Hoskins told jurors that Rice had "snapped" when Durham told him "You’re never seeing [your son] again, and neither is your family.” Mental-health evidence that Rice had a pituitary tumor at the time of the murder and was taking 17 medications that affected his impulse control and made him paranoid convinced all but one juror to vote in favor of a life sentence. Prosecutors argued that jurors had already found one aggravating factor that made Rice eligible for the death penalty, and had not unanimously decided that mitigating evidence outweighed that aggravating circumstance. No jury has sentenced anyone to death in Missouri since 2013. 


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Duane Buck, Whose Death Sentence Was Tainted by Racial Bias, Is Resentenced to Life

Duane Buck (pictured), the Texas death-row prisoner whose controversial racially tainted death sentence was reversed by the U.S Supreme Court in February, has been resentenced to life in prison. In a plea deal entered in a Harris County (Houston) courtroom on October 3, Buck, who is 54, pled guilty to two new counts of attempted murder that each carried terms of 60 years in prison to be served concurrently with two life sentences imposed on his capital murder charges. In a news release, District Attorney Kim Ogg said, "[a]fter reviewing the evidence and the law, I have concluded that, twenty-two years after his conviction, a Harris County jury would likely not return another death penalty conviction in a case that has forever been tainted by the indelible specter of race. Accordingly, in consideration for Buck pleading guilty to two additional counts of attempted murder we have chosen not to pursue the death penalty." After 20 years on death row and numerous appeals in which he was denied relief by the state and federal courts, the U.S. Supreme Court ruled in February that Buck's capital sentencing hearing had been unconstitutionally poisoned by the testimony of a psychologist—presented by his own lawyer—that Buck was more likely to commit future acts of violence because he is black. Saying that the "law punishes people for what they do, not who they are," Chief Justice John Roberts said that the "particularly noxious" stereotyping of Buck as dangerous because he is a black man was toxic testimony that was "deadly" even "in small doses." "No competent defense attorney," Roberts wrote, "would introduce such evidence about his own client.” Because Texas did not provide life without parole as an alternative to the death penalty at the time of Buck's trial in 1995, Ogg insisted on the two additional charges for attempted murder to foreclose the possibility of release when Buck became eligible for parole from the life sentences in 2035. She said the plea deal "can close a chapter in the history of our courts, in that they will never again hear that race is relevant to criminal justice or to the determination of whether a man will live or die. Race is not and never has been evidence."


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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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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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Florida Supreme Court Upholds Removal of Prosecutor From Death-Eligible Cases

The Florida Supreme Court has upheld Governor Rick Scott’s (pictured, left) removal of Orange and Osceola County State Attorney Aramis Ayala (pictured, right) as prosecutor in more than two dozen murder cases because of her official policy not to seek to seek the death penalty. Over two dissents, the seven-member Court held that Scott had acted “well within the bounds of the Governor’s broad authority” when he replaced Ayala with Lake County State Attorney and death-penalty proponent Brad King in cases that could be eligible for the death penalty under Florida law. On March 16, Ayala—the first African American elected as a Florida state attorney—announced that her office would not pursue the death penalty in any homicide cases, saying the use of capital punishment was “not in the best interests of this community or in the best interests of justice." That day, Governor Scott issued an executive order removing her from the case of Markeith Loyd, charged in the killing of an Orlando police officer, and appointing King to prosecute the case. He has since issued executive orders removing Ayala and appointing King in at least 26 other murder cases. Against a backdrop of racial discrimination, Ayala—supported by the Florida Legislative Black Caucus and a group of lawyers, legal experts, and retired judges—argued that Scott’s action was a power grab that threatened the autonomy of locally elected prosecutors to exercise their discretion in charging and sentencing practices. The court flatly rejected that argument, saying that “adopting a blanket policy against the imposition of the death penalty is in effect refusing to exercise discretion and tantamount to a functional veto” of Florida’s death-penalty law. The two women on the court, Justice Barbara Pariente, joined by Justice Peggy A. Quince, dissented. Justice Pariente wrote: “This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.” Ayala’s decision “not seek a sentence that produces years of appeals and endless constitutional challenges and implicates decades of significant jurisprudential developments,” she wrote “was well within the scheme created by the Legislature and within the scope of decisions State Attorneys make every day on how to allocate their offices’ limited resources.” Governor Scott hailed the decision as “a great victory.” Shortly afterwards, Ayala issued a statement saying she respects the ruling and announcing the formation of a death penalty review panel that will evaluate first-degree murder cases and recommend whether to seek the death penalty. “With implementation of this Panel,” the statement said, “it is my expectation that going forward all first-degree murder cases that occur in my jurisdiction will remain in my office and be evaluated and prosecuted accordingly."


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Florida Denies Relief to Prisoner Unconstitutionally Sentenced to Death, in Decision that Could Affect More Than 75 Cases

In a decision that could have broad impact on the state's death row, the Florida Supreme Court on August 10 upheld the death sentence imposed on James Hitchcock, despite his having been unconstitutionally sentenced to death. In a 6-1 ruling, the court said it would not enforce its 2016 ruling in Hurst v. State—which declared unconstitutional any death sentence imposed after one or more sentencing jurors had voted that a life sentence was the appropriate punishment—in cases that had completed the direct appeal process before June 2002. That date is when the U.S. Supreme Court ruled in Ring v. Arizona that a capital defendant has a Sixth Amendment right to have the jury determine all facts necessary for the state to impose a death penalty. But the Florida courts did not apply Ring to death-penalty cases in the state until the U.S. Supreme Court struck down Florida's death-penalty statute in 2016. At that time, in Hurst v. Florida, Justice Sonia Sotomayor reiterating that "[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death." When Hurst's case returned to the Florida Supreme Court later that year, the state court ruled that non-unanimous jury verdicts were unconstitutional. However, the court then ruled in an appeal brought by Mark Asay—scheduled to be executed August 24—that it would not apply Hurst to cases that pre-dated Ring. Hitchcock and other Florida death-row prisoners pressed a number of other constitutional arguments, including that death sentences imposed after non-unanimous jury votes are unreliable, in violation of the Eighth Amendment, and that the court's bright-line cutoff for enforcing Hurst was unconstitutionally arbitrary, violating due rocess and the right to equal protection of the law. The Hitchcock court declined to consider those arguments, dismissing them as "nothing more than arguments that Hurst v. State should be applied retroactively to [Hitchcock's] sentence." Hitchcock's case was closely watched because the Florida courts had frozen the briefing schedules for 77 similarly situated death-row prisoners who also were arguing that Hurst should be enforced in their cases. Justice Barbara J. Pariente dissented, writing, "[r]eliability is the linchpin of Eighth Amendment jurisprudence, and a death sentence imposed without a unanimous jury verdict for death is inherently unreliable." She noted that Hitchcock, who was twenty years old at the time of his crime, has had four different unconstitutional death sentences since he was first tried in 1977, with the U.S. Supreme Court twice overturning the death penalty in his case. She further noted that four Florida Supreme Court justices had written that his death sentence was disproportionate and that he should be resentenced to life. “To deny Hitchcock relief when other similarly situated defendants have been granted relief amounts to a denial of due process,” she wrote.


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Oklahoma Prisoners Argue State's Application of the Death Penalty Is Racially Biased, Unconstitutional

Newly available evidence shows that Oklahoma's death penalty unconstitutionally discriminates on the basis of race, according to petitions filed by lawyers seeking to overturn the death sentences imposed on two African-American defendants, Julius Darius Jones (pictured) and Tremane Wood. Jones—a high school athlete and honor student who did not fit the description of the shooter and who has continuously maintained his innocence—and Wood were convicted and sentenced to death for killing white male victims in separate cases. Both men's claims are based on data from a study of race and the death penalty that was released as part of the April 2017 report of the Oklahoma Death Penalty Review Commission showing that, for the period 1990-2012, Oklahoma defendants convicted of killing white victims were more than twice as likely to be sentenced to death as those convicted of killing victims of color. For cases like Jones's and Wood's that involved only white male victims, defendants were nearly three times more likely to be sentenced to death. The study also showed that defendants of color were nearly three times more likely to be sentenced to death if convicted of killing a white victim than a victim of color and nearly twice as likely as a white defendant to be condemned for killing a white victim. Jones's petition argues that his death sentence violates the state and federal constitutions because he "faced a greater risk of execution by the mere happenstance that the victim who he was accused and convicted of killing was white.” Both Jones and Wood were capitally charged in Oklahoma County, one of the 2% of American counties responsible for more than half of all prisoners on the nation's death rows. 54 men and women were sent to death row during the 21-year administration of District Attorney “Cowboy” Bob Macy, who retired in 2001. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.”  Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Jones has also filed a motion with the Oklahoma County court seeking DNA testing on a red bandana that an eyewitness said the shooter was wearing over his face at the time of the murder. His lawyers say the bandana may contain DNA evidence that would identify the shooter and exonerate Jones.


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Florida Death-Row Population Drops to 12-Year Low As Jury Unanimity Ruling Takes Effect

The number of prisoners on Florida's death row is now lower than it was on June 30, 2005, as the pace of death sentencing slows and courts reverse the unconstitutional non-unanimous death sentences by which numerous capital defendants had been condemned. Applying the U.S. Supreme Court's 2014 ruling in Hurst v. Florida and subsequent Florida Supreme Court decisions in Hurst v. State and Perry v. State, state courts declared unconstitutional Florida's practice of permitting trial judges to impose death sentences after sentencing juries had not reached a unanimous agreement that death was the appropriate punishment. As a result, death sentences have been vacated in nearly 100 cases, and additional cases are working their way through Florida's court system. So far this year, 15 people have been removed from Florida's death row, and a 16th died after having his death sentence vacated under Hurst, while being transfered to a court hearing. The declining population on death row is not being replaced with new death sentences; the state's last death sentence was handed down in June 2016 and more than 3/4ths of death sentences imposed in the previous five years had involved non-unanimous jury votes for death. As a result, the number of prisoners housed on Florida's death row has fallen from 383 at the beginning of 2017, to 367—slightly lower than the 369 people who were on death row in 2005. Even more prisoners are expected to be removed from death row, as many of those whose death sentences have been invalidated are resentenced to life. (The Department of Corrections death-row roster only removes a prisoner from its list if the prisoner dies, receives clemency, is exonerated, or is resentenced to something other than death.) A DPIC review of Florida capital cases indicates that, through July 13, Florida courts have issued decisions involving Hurst in at least 119 cases. Those decisions have resulted in the vacation of 99 death sentences. To date, the counties most affected by the Hurst rulings have been: Duval (15 sentences); Orange (9 sentences); and Broward (9 sentences). In Duval County, 14 of the 15 death sentences reviewed (93.33%) have been vacated; in Orange County, all 9 death sentences reviewed have been vacated; and in Broward county, 7 of the 9 death sentences reviewed (77.78%) have been vacated. DPIC, in conjunction with researcher and professor Michael Radelet, has also identified at least 149 prisoners who are expected to obtain relief under the Florida court's current interpretation of Hurst, and is tracking what happens to those cases on resentencing. Former Florida Supreme Court Chief Justice Gerald Kogan said the resentencing hearings will present difficulties for the state's legal system: “That’s not an easy thing to go back and dig up all of this evidence and especially to dig up all the witnesses,” for a new sentencing hearing. “We have been very, very negligent in the state of Florida in handling these types of cases,” he said.


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Resentencing of Intellectually Disabled Prisoner Highlights Death Penalty Decline in South Carolina and Nationwide

In 1989, William Henry Bell, Jr. was convicted of murdering an elementary school principal. Nearly 30 years later, South Carolina's Free Times reports that the reversal of his death sentence because of intellectual disability provides evidence of the death penalty's continuing decline in the state and across the country. At the time of the murder, Bell maintained that he was innocent, but after four days in jail, he confessed to the murder. Prior appeals—including one alleging a pattern of racially discriminatory charging practices in interracial crimes involving black defendants and white victims—failed for 25 years, until a trial judge in November 2016 determined that Bell was ineligible for capital punishment because he had Intellectual Disability. In May 2017, the state attorney general's office decided it lacked grounds to appeal the court's decision, leaving Bell to face resentencing with a maximum penalty of life without parole. Emily Paavola, one of Bell's attorneys, said the case fits into a larger narrative of South Carolina's declining use of capital punishment. “It is increasingly hard to justify retaining the death penalty in South Carolina. Prosecutors rarely seek it, juries more rarely impose it, and even when the rare individual is sentenced to death, the odds are that the defendant will not be executed. We can no longer afford the financial and social costs of such a broken system,” she wrote. The last execution in South Carolina took place in 2011, and since that time only one person has been sentenced to death in the state. Similar declines have occurred nationwide, with death sentences and executions both dropping sharply in recent years. Fewer people were sentenced to death in 2016 than in any year since states began re-enacting the death penalty in 1973, and executions in 2016 were at their lowest level in 25 years. 


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