New Analysis: Capital Cases Overturned At Least Four Times Illustrate How Pervasive Prosecutorial Misconduct Contributes to High Cost of Death Penalty

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. 

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