Clark County, Nevada Losing Capital Convictions Because of Prosecutors' Race Discrimination in Jury Selection
The racially discriminatory jury selection practices of the Clark County, Nevada, District Attorney's office are now causing it to lose convictions in capital cases. In a December 18 article, the prosecutorial watchdog, The Open File, details repeated violations by Clark County death-penalty prosecutors of the constitutional proscription against striking prospective jurors from service on the basis of race. Four times in the past four years, the Nevada Supreme Court has ordered new trials in Clark County cases because prosecutors violated the U.S. Supreme Court's 1986 decision in Batson v. Kentucky by discriminatorily excluding jurors of color, including in three cases in which the death penalty had been imposed. The Open Files writes that “prosecutors in the Clark County District Attorney’s office either do not know, ignore, or gamble on Batson, unsuccessfully hoping the courts will not hold them accountable to it.” In June 2014, the Nevada Supreme Court reversed the conviction and death sentence of Charles Conner, after prosecutors used six of their nine peremptory strikes against jurors of color, claiming that the jurors were “weak” on the death penalty. The court ruled that this purportedly race-neutral justification was pretextual, noting that one of the black jurors to whom prosecutors claimed the justification applied was an Air Force Reserve officer and full-time correctional officer, who had previously served in the Navy and as a police officer. The court found that the prosecutors' explanations for striking this juror were "belied by the record" and that manufacturing "[a] race-neutral explanation that is belied by the record is evidence of purposeful discrimination.” In March 2016, the court granted African-American death-row prisoner Jason McCarty a new trial after Clark County prosecutors excluded two of three eligible black jurors, pretextually attempting to justifying the strikes on the grounds that one worked in a strip club and the other had a brother with a criminal record. However, prosecuters had run detailed employment background checks on only two of the 36 potential jurors, suggesting to the court that prosecutors had not been genuinely concerned about the excluded juror's employment. The prosecutors also disparately questioned jurors whose family members had criminal histories, asking the black juror whom they struck 15 follow-up questions, while asking a similarly-situated white juror a single follow-up question. In granting McCarty a new trial, the court observed: “Discriminatory jury selection is particularly concerning in capital cases where each juror has the power to decide whether the defendant is deserving of the ultimate penalty, death.” In October 2017, the court also granted a new trial to third death-row prisoner, Julius Bradford, after the trial court had permitted the prosecution to strike one Hispanic and one African-American juror without providing the defense an opportunity to contest the race-based nature of the strikes.
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DPIC Year End Report: New Death Sentences Demonstrate Increasing Geographic Isolation
Nearly one-third (31%) of the 39 new death sentences imposed in the United States in 2017 came from just three counties, Riverside, California; Clark, Nevada; and Maricopa, Arizona, according to statistics compiled for DPIC's annual year end report. In a press release accompanying the annual report, DPIC said that the year's sentences reflect "the increasing geographic isolation and arbitrary nature of the death penalty." Riverside imposed five death sentences in 2017, Clark four, and Maricopa three, and no other county imposed as many as two. The other 3,140 counties and parishes in the country imposed 27 new death sentences, fewer than the record low total of death sentences imposed in the country last year. These three counties were featured in a 2016 report by Harvard University's Fair Punishment Project of the most prolific death sentencing counties in the country. That report found that the death penalty high-use counties tended to share "a history of overzealous prosecutions, inadequate defense lawyering, and a pattern of racial bias and exclusion," among other criminal justice issues. In a recent article about DPIC's year end report published in the Desert Sun, Dunham said, "You don’t see counties that overproduce death penalties and are model citizens in the administration of justice as a whole." Current Riverside County District Attorney Mike Hestrin told the paper that he “strenuously” objected to that characterization, which he called "a bunch of nonsense." Riverside County Public Defender Steven Harmon said that while the county has historically overused the death penalty, Hestrin, who took office in 2015, "has taken a far more measured approach to deciding in which cases he should seek the death penalty.” The Desert Sun reported in 2016 "an astronomical rise in wiretaps" in Riverside county that was "so vast it once accounted for nearly a fifth of all U.S. wiretaps," including triple the number issued by any other state or federal jurisdiction in 2014. Riverside police ranked 9th in the nation in killings of civilians. 76% of those sentenced to death in Riverside between 2010 and 2015 were defendants of color, and during that time frame it imposed death sentences at a rate that was 9 times greater per homicide than the rest of the state. All six defendants sentenced to death in Riverside in 2016 or 2017 were black or Latino. Riverside has imposed more death sentences than any other county in the country over the last five years, and 2017 was the second time in the last three years that it sentenced more people to death than any other county. Its five death sentences constituted 45% of the death sentences imposed in California this year, and more than were imposed by any other state. Four other southern California counties (Los Angeles, Kern, Orange, and San Bernardino) are also among the ten most prolific death sentencers in the past five years, and the region has been dubbed "the buckle of a new death belt." Riverside County alone has imposed 8.5% of all new death sentences in the country since 2013, and the five-county "death belt" has imposed 21.8%. By contrast, Harris County, Texas, which has executed more people than any other county, produced no executions or death sentences this year. Only 15% of all counties in the U.S. have ever imposed a death sentence that resulted in an execution. (Click image to enlarge.)
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Report: Deterrence is Based on Certainty of Apprehension, Not Severity of Punishment
The certainty of apprehension, not the severity of punishment, is more effective as a deterrent. So argues Daniel S. Nagin (pictured), one of the nation’s foremost scholars on deterrence and criminal justice policy, in his chapter on Deterrence in the recently released Academy for Justice four-volume study, Reforming Criminal Justice. Reviewing deterrence scholarship since the 1960s and five leading studies from the past two decades, Dr. Nagin concludes that evidence supporting a deterrent effect from "the certainty of punishment is far more convincing and consistent than for the severity of punishment." Moreover, he writes, "[t]he certainty of apprehension, and not the severity of the ensuing legal consequence, is the more effective deterrent." Dr. Nagin is the Teresa and H. John Heinz III University Professor of Public Policy and Statistics at Carnegie Mellon’s Heinz College of Information Systems and Public Policy and previously chaired the Committee on Deterrence and the Death Penalty for the National Research Council of the National Academies of Science (NAS). In that capacity, he served as co-editor of the 2012 National Academies report, Deterrence and the Death Penalty. Nagin explains in his Academy for Justice chapter that although "certainty must result in a distasteful consequence" for the punishment to be a deterrent, "[t]he consequences need not be draconian, just sufficiently costly, to deter the prohibited behavior." In making policy judgments about the justification for increasingly severe sanctions, he says, "the deterrent return to increasing an already long sentence appears to be small, possibly zero." The 2012 NAS Committee found that "research to date on the effect of capital punishment on homicide is not informative about whether capital punishment decreases, increases, or has no effect on homicide rates" and recommended that those deterrent studies "not be used to inform deliberations requiring judgments about the effect of the death penalty on homicide." A February 2015 study by the Brennan Center for Justice of the dramatic drop in crime in the U.S. in the 1990s and 2000s found that the death penalty had no effect on the decline in crime.
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NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty
The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution.
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No Executions in the “Capital of Capital Punishment” for First Time in 30 Years
Harris County (Houston), Texas, has executed 126 prisoners since the U.S. Supreme Court upheld Texas's capital punishment statute in 1976, more than any other county in the United States and, apart from the rest of Texas, more than any state. But in 2017, no one will be sentenced to death in Harris County and, for the first time since 1985, no one sentenced to death in the county will be executed. In 2017, the U.S. Supreme Court also overturned two controversial Harris County death-penalty cases, resulting in agreements with county prosecutors that Duane Buck and Bobby Moore should be resentenced to life. District Attorney Kim Ogg (pictured), elected in 2016 as a reform prosecutor, said she views these developments "as a positive thing." "I don't think that being the death penalty capital of America is a selling point for Harris County," she said. Death Penalty Information Center Executive Director Robert Dunham told the Houston Chronicle that, because of its prolific execution rates, "Harris County has always symbolized America's death penalty." This year's statistics, he said, are "both symbolic and emblematic of the change in capital punishment in the United States. For the first time in a generation, the nation's largest executioner has executed no one." Texas death-row exoneree Anthony Graves credited the Ogg administration "for being out front on criminal justice reform.... Because this is what it is, this is what it looks like," he said. Texas's seven executions in 2017 are still more than were carried out in any other state, but a majority of the death warrants issued during the year did not result in executions. Death-penalty proponent Dudley Sharp attributed the execution decline to the increase in time between sentencing and execution. In Texas, however, much of that increase is a result of changes in state law arising from legislative concerns about wrongful convictions: the Texas Court of Criminal Appeals granted seven stays of execution in 2017 permit prisoners to litigate claims that their convictions or death sentences were the product of defective forensic testimony, false evidence, or the suppression of exculpatory evidence by prosecutors or violated this year's Supreme Court decision in Moore v. Texas. The seven executions statewide stood in stark contrast to the 40 executions the state carried out in 2000. Declining murder rates, the availability of life without parole as a sentencing alternative, and reduced public support for the death penalty have all contributed to the reduction of new death sentences in Harris County. A 2016 report by the Kinder Institute for Urban Research at Rice University found that the number of Houston-area residents preferring the death penalty over life sentences for those convicted of first-degree murder had fallen to just 27%.
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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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