The single most common outcome for a death sentence in the modern era is for it to be reversed on appeal due to a constitutional violation. Most people whose sentences are reversed get resentenced to life in prison or less, but some prosecutors persist in seeking new death sentences even after multiple reversals. A Death Penalty Information Center analysis of the 14 people sentenced to death four or more times for the same crime finds that prosecutorial misconduct, including racial bias, contributed to the high number of reversals. When a court overturns a death sentence due to government misconduct, prosecutors are not required to seek death again — but when they decide to do so, they create new trauma for victims’ family members and add new costs for taxpayers. While this analysis focuses on a small subset of death-sentenced people, their experiences with prosecutorial misconduct provide insight into the problems that affect many other capital cases.
Pervasive Prosecutorial Misconduct
Curtis Flowers is likely the most well-known of those with high reversal and resentencing rates, and his case serves as a stark example of prosecutorial misconduct. Tried six times by the same prosecutor and sentenced to death four times, Mr. Flowers was exonerated after the U.S. Supreme Court overturned his final death sentence in 2019 and the state of Mississippi subsequently dropped all charges. The Court granted Mr. Flowers relief based on overwhelming evidence of racial discrimination: across all six trials, prosecutor Doug Evans used 41 of 42 peremptory strikes to exclude Black potential jurors. “The numbers speak loudly,” Justice Brett Kavanaugh wrote for the seven-justice majority. “The State’s relentless, determined effort to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.”
Mr. Flowers’ first two convictions were overturned due to misconduct in how the state presented evidence, questioned witnesses, and argued to the jury. The Mississippi Supreme Court found the state’s actions in the first trial to be “egregious,” “bad faith,” and “highly prejudicial,” then held that the state “employed many of the same tactics” during the second trial. Mr. Flowers’ third conviction was overturned by the Mississippi Supreme Court because Mr. Evans used all 15 of the state’s peremptory strikes against Black potential jurors in violation of Batson v. Kentucky (1986), which bars racial discrimination in jury selection. That court held that Mr. Evans’ behavior represented “as strong a…case of racial discrimination as we have ever seen in the context of a Batson challenge.” Mr. Flowers’ fourth and fifth trials ended with hung juries.
