Randomness and Prosecutorial Misconduct in Death Penalty Cases Highlighted in South Carolina

A recent arti­cle in the Post and Courier details research into the rea­sons why 18 death sen­tences have been over­turned in South Carolina, find­ing one of the main rea­sons to be pros­e­cu­to­r­i­al mis­con­duct. Research found that 11 of the 18 pris­on­ers received new sen­tences because of pros­e­cu­to­r­i­al mis­con­duct, while the oth­er sev­en received new sen­tences after the deci­sion in Atkins v. Virginia because they had intellectual disability.

The Post and Courier’s research indi­cates that four of the 18 men who received sen­tenc­ing relief were pros­e­cut­ed by for­mer 11^th Circuit Solicitor Donnie Myers, who pros­e­cut­ed more cap­i­tal cas­es than any­one else in South Carolina his­to­ry. Solicitor Myers once referred to a defen­dant as ​“King Kong,” ​“a mon­ster,” ​“a cave­man” and ​“a beast of bur­den,” and made improp­er and prej­u­di­cial state­ments in sev­er­al oth­er cas­es. According to a 2016 report from the Fair Punishment Project, courts con­clud­ed that Solicitor Myers com­mit­ted mis­con­duct in 18, or near­ly half, of the 39 death penal­ty cas­es he suc­cess­ful­ly pros­e­cut­ed before his term in office end­ed in 2016. The arti­cle notes that two oth­er South Carolina solic­i­tors also made com­ments dur­ing tri­als that led to cas­es being resentenced.

Responding to that research, the edi­to­r­i­al board of the same news­pa­per not­ed the ran­dom­ness, racial dis­par­i­ties, and ques­tions of inno­cence that have also been observed in the death penalty: 

The edi­to­r­i­al board goes on to rec­om­mend that ​“a statewide pan­el of [pros­e­cu­tors]” rather than indi­vid­u­al­ly elect­ed pros­e­cu­tors, make deci­sions about whether the death penal­ty will be sought. That, the Board explained, would remove the deci­sion-mak­ing pow­er from peo­ple who must stand for reelec­tion and who can be ​“too eas­i­ly swayed by pub­lic emo­tion.” That sin­gle change, the Board wrote, would reduce the ran­dom­ness of the death penal­ty and reversals.