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 central problem with the death penalty is that the standards for seeking it (much less winning a death sentence) vary so drastically from one judicial circuit and even from one county to the next. That variation is a big reason there remains even today such a clear racial component for its application. It’s why one co-killer can be executed while the other one gets a life sentence — sometimes even when the one whose life is spared was the ringleader. It’s why even death-penalty supporters such as us sometimes find ourselves uncertain if the person being executed really committed the crime.

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.