Transcript
Anne Holsinger 00:01
Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Managing Director of the Death Penalty Information Center. In this episode I’ll be discussing DPIC’s recent report Lethal Election: How the US Electoral Process Increases the Arbitrariness of the Death Penalty with Leah Roemer. Leah is DPIC’s Legal Fellow, and along with Executive Director Robin Maher, authored the report. Leah graduated from Berkeley Law in 2023, with a certificate in Public Interest and Social Justice. In law school, she was a member of the Death Penalty Clinic where she assisted in the defense of a client on death row in Alabama. She also interned at public defender offices in Albuquerque, Seattle, and the Bay Area. For Lethal Election, she conducted original research into prosecutorial and judicial decision making to examine how elections influenced the outcomes of capital cases. Thank you for joining me, Leah.
Leah Roemer 00:52
Thanks for having me on.
Anne Holsinger 00:55
This report is obviously very timely being released in a major election year. But, what inspired you to explore the issue of politicization?
Leah Roemer 01:02
So, the fact that it is a major election year was definitely a big part of it. We thought people would be interested in understanding the way that politics affects the death penalty, since that’s our area of research. But, we were also interested in exploring this issue because there’s this kind of long accepted, quote unquote wisdom, that the death penalty is a political tool, and specifically that a pro death penalty stance helps candidates win elections. This has sort of been a political belief for decades, and at DPIC we’ve observed major changes in the relationship between the public and the criminal legal system generally. You know, we now know that a majority of Americans believe the death penalty is administered unfairly and with the increasing awareness of wrongful convictions, and issues with representation, with attorney defense, and so many other issues with the actual practice of the death penalty, we see the public having a larger awareness of the fact that the death penalty may not be administered fairly. And we were curious to see if that, again, that belief that the death penalty was a political tool that benefited politicians was still true with this changing public belief about the criminal legal system.
Leah Roemer 01:02
What were the key findings of the report?
Leah Roemer 01:13
We had key findings in three separate areas. So, the first was about justices. We looked at State Supreme Court justices in Georgia and North Carolina and Ohio. And we found that they affirmed twice the number of death penalty cases during an election year compared to other years and that effect was statistically significant when controlling for the number of cases each year. So, in essence, during an election year, they were much more likely to deny relief to someone who had been sentenced to death who presented a case to them compared to non-election years. We also found that looking at elected prosecutors in death penalty jurisdictions, that changing public opinion means that zealous support for the death penalty is no longer a litmus test for those officials. So, as I alluded to in the first question, we did end up finding that based on sort of increasing public skepticism towards the death penalty, it appears that the public is no longer demanding that an official holds a pro death penalty stance, and some officials have shifted their behavior and they’re now no longer running on a pro death penalty platform. In fact, many viable candidates and successful candidates are even opposing the death penalty, or pledging reforms. And finally, we found when looking at clemency granted by executives, particularly governors, but also including presidents, we found that those elected officials seem to be making clemency decisions based on political cycles. So, they were more likely to grant clemency when they did not face voters in an upcoming election. However, based on this, you know, declining public support for the pro death penalty stance that became apparent through our research, it seems that that may have shifted as well. And elected officials are now granting increased numbers of clemency grants.
Anne Holsinger 04:13
How did you decide to focus on prosecutorial and judicial elections in the research?
Leah Roemer 04:18
Yes, so the US is an outlier here. We are the only country to elect prosecutors and we’re one of a small number to elect judges. And we were particularly interested in these elections, because while you know, we could have looked at national or even local elections for representatives, and we do discuss those to a minor extent in the report, politicians have less of a role in a individual death penalty case compared to prosecutors and judges. So we’ve seen lots of stories where a local judge or prosecutor seemed to be making a decision in a death penalty case based on their political cycle and we wanted to explore that. We were also interested in prosecutor and judge elections because those roles have significant differences compared to a congress person or a president. Our judicial system rests on an assumption of impartiality, that judges are instructed to avoid any behavior that would jeopardize the public’s belief in their neutrality. So, we were interested how, under those circumstances does a judge run for office and discuss their past record and make promises for the future. There definitely seems to be a tension between the expectations of an election and the expectation of impartiality for judges. And similarly, prosecutors, they have this expectation that they will only pursue charges in cases that meet certain criteria. But because there’s so much discretion in the death penalty charging process, past studies showing that race, gender, location, other factors influence the charging process, we thought that research might show politics having a similar effect. But especially in conjunction with that accepted wisdom that for so long, prosecutors could win on a death penalty record, we thought that politics could be one of these influences that are not supposed to affect the death penalty case, but may be doing so on a local level. So we thought that these local figures would have the biggest role in the death penalty case and we’d be able to see a possible effect based on political cycles.
Anne Holsinger 06:21
You mentioned earlier that you conducted a new analysis of clemency decisions. Were executives influenced by election cycles and how did that play out?
Leah Roemer 06:31
Yes they were, there did appear to be a political effect in clemency decisions. So there are basically two types of clemency decisions, how we sorted them, there’s an individual grant to a person based on specific facts about their casen and then there’s also a mass grant, for example, commuting and entire death row; there are also different structures by state. So, in some states, the governor has the sole authority to grant clemency qnd in other places, there’s a parole board that has a binding recommendation. So, when we were looking at all clemency grants, including the different structures, and including individual and mass grants, we found that a majority so that 56% of those grants were made by executives not running for reelection. When we looked at just at governors with the sole authority to grant clemency, this increase to a little over 63%. So, close to two thirds of clemency grants were made when the executive was not running for reelection. And this effect was even more pronounced for individual grants. So when we were only looking at executives who made individual grants, a majority of those about 54% occurred when the executive was not running for reelection. But that actually increased to about 85%, when the executive had sole authority. So, I know that’s kind of a lot of different elements. But just to simplify that we basically found that when a governor has the sole authority to grant clemency to it to an individual person, they are making that decision 85% of those grants were made when the governor was not running for reelection. So, that suggests I think a strong political influence that they were afraid of making those grants when they did have to face voters, and they believed that voters would punish them for granting clemency. And in fact, they only granted clemency under those circumstances, four times in over five decades. So that was that was one of our biggest takeaways there. We also found that about half of clemency grants occurred in only the month of December and January, suggesting a political timing there. And we found numerous grants are occurring on officials last day or in their last week in office, suggesting you know, as they’re going out, they’re making this decision when they believe it won’t have political consequences. However, like I mentioned earlier, we found it — we found that the average number of death sentences commuted has risen each decade since the 1970s. So, that’s suggesting a change and maybe some of the effects we observed are sort of phasing out as people realize that voters aren’t punishing people for these clemency grants and in cases.
Anne Holsinger 09:08
Yeah, I think it’s also worth noting that in a lot of cases, someone can only apply for clemency when they’re actually facing an execution date. So it’s not like prisoners have the opportunity to choose when to apply for clemency. In most cases, that’s not always true. But it really introduces an extra layer of arbitrariness, if someone can only apply for clemency when they’re facing execution and that happens to fall in an election year or not. And that really determines the likelihood that they’ll be granted clemency.
Leah Roemer 09:40
Yes, absolutely. I think the whole goal of our report was to explore whether politics caused arbitrariness in that way, where if you have two people with the exact same facts in their cases, they’re both facing a sentence of death but one comes before one of these actors, so comes before a prosecutor or or a judge or a governor in an election year versus not, if their outcome is different? And we did find evidence that outcomes were different based on politics.
Anne Holsinger 10:11
What did your research process look like? These are such weighty decisions. Someone’s life is literally on the line and so it seems like this information should be publicly available in the interest of government transparency. Did you find that to be the case?
Leah Roemer 10:25
So unfortunately, no, it was a bit different for the different questions we were investigating. So, in general, the research process involves building internal databases of all cases that met certain criteria. For judges that meant looking at State Supreme Courts and identifying all the cases under our parameters through legal research databases, like Westlaw and Lexis. And for clemencies, you know, we used a variety of sources to confirm certain facts, including public statements and newspaper, paper records and that kind of thing. But particularly for prosecutors, we faced massive transparency issues. We were looking for information from District Attorney’s Offices to examine charging decisions in death penalty cases and we found that there was what appeared to be a widespread secrecy around these decisions. Many offices never responded to our records requests or they refuse to share information. And the places that did share information with us appeared to not keep detailed records about the charging process and death penalty cases. For example, Harris County, Texas, which was long known as the quote unquote, capital with capital punishment, more people have been executed from Harris County than anywhere else in the country. We did get records from them, but their records released to us stated that their office does not actively track or maintain comprehensive historic lists of when or where they sought the death penalty. So that means that the place where historically the most death sentences and executions occurred, does not necessarily even know for whom everyone the death penalty was sought, when those decisions were made, why they were made, and that was, frankly, disturbing to us. And all of this, all of these barriers that we faced that was also confirmed by the research that we did other studies that have been done showing poor record keeping practices in District Attorney offices and difficulties with determining the factors that go into the decision to seek death in a case. And with this lack of transparency, how can we be certain that the death penalty is being sought fairly, and that these unconstitutional factors like politics, race, and gender and other factors are not playing a role in the decision to seek death?
Anne Holsinger 12:39
What surprised you most about the findings from the report?
Leah Roemer 12:42
So I think the thing that surprised me most was the way that in some areas, it appeared, things had really changed. And that that accepted wisdom, again in quotes, was just simply not true any longer. The decline in the use of the death penalty that we’ve observed over the past 30 years, where 300 death sentences were being sought per year in the late 1990s versus under 30 for the past couple of years now, to the extent that that illustrates voters decreasing appetites for the death penalty, it appeared in our research that elected officials in some areas really responded to that, especially in large metro areas, they got the message that voters are not necessarily interested in a pro death penalty stance. So one example was in Philadelphia, in the 1990s and early 2000s, the elected District Attorney was Lynne Abraham, and she was known as the Queen of Death. She’s also called the deadliest D.A. in the country. She was in office for two decades, and by the end of her tenure had overseen 108 death sentences. And contrast that with Larry Krasner, who was elected in 2017 in Philadelphia, and is now in his second term, he ran on a platform opposing the death penalty. Since being in office, he’s asked the Pennsylvania Supreme Court to find the death penalty unconstitutional. And he said that when he was first running for district attorney, he was told that he needed to decide whether he wanted to win this election or be the unicorn by declaring that he was against the death penalty. So he was essentially told that the election would depend on his stated support for the death penalty, or vice versa. And he said it anyway, he took this anti-death penalty stance, and he had a decisive win and he also defeated a challenger who supported the death penalty, went up for election the second time, and he’s now serving his second term. So that was, you know, an indication of strong change in Philadelphia, even within the past few decades. And similarly, in Harris County, which I mentioned earlier in Texas, this is the Houston metro area, in the late 1900s, so about 1980 to 2000, the DA was Johnny Holmes and he sent over 200 people to death row was a really strong advocate for capital punishment. But in the past couple of years, the DA has been Kim Ogg, who, while not being outright opposed to the death penalty, dropped charges in several big death penalty cases, she sought it very infrequently. And she said that she didn’t think being the death penalty capital of America is the selling point for Harris County. And it seems that in both cases in Philly and in Harris County, that Larry Krasner and Kim Ogg were reflecting the will of the voters. So in Philadelphia, there are indications that the voters were becoming more progressive and more anti-capital punishment. And then polling showed in Harris County, that when asked, if they favored the death penalty versus life without parole or life in prison as the punishment for murder, only 20% of people in 2020, he said that they favored the death penalty. So these are places that historically were huge bastions of capital punishment and now it seems that voter opinion has changed and district attorneys have responded to that by taking critical or even outright anti-death penalty positions.
Anne Holsinger 16:12
Thanks for sharing those examples of you know how elections can really shift a county’s death penalty record. Are there examples from the report that you think best illustrate how elections influence decisions in death penalty cases?
Leah Roemer 16:29
Yes, so one big example we found was Kelly Ayotte, who was previously the New Hampshire Attorney General, then served a term as the senator from New Hampshire, and now is running for governor this year. So when she was New Hampshire Attorney General in the 2000s, she had the sole authority to seek the death penalty. And there was this man named Michael Addison who was accused of killing a police officer and Kelly Ayotte decided to seek the death penalty against him and she actually personally prosecuted the case. So she was there in court, making the arguments against him and seeking death to the jury and he got the death penalty. He’s— he was the only person in you know, 50 years of the modern death penalty to receive a death sentence in New Hampshire in 50 years, and now, the only person in perpetuity because New Hampshire has abolished the death penalty. And so emails released during her Senate campaign suggests that this was actually a politicized decision by Kelly Ayotte. These emails showed that right after she decided to seek the death penalty for Mr. Addison, she was emailing with her political advisor and said essentially, “Did you see this decision?” and her political adviser said, “Yeah, I did” and then kind of put himself in the words of an ad for her future campaign and he said, “Where does A.G. Ayotte stand on the death penalty? By the switch.”. So when this came out, this created some concern, obviously, among New Hampshire politicians, and also it was raised in her Senate campaign by her opponent, suggesting that this was a politicized decision and in fact, there was a commission in New Hampshire, who a group within the commission that made the recommendation to abolish the death penalty and in part cited the evidence that Kelly Ayotte decision in this case was political. They said that it suggested that the death penalty was being applied arbitrarily and not fairly in New Hampshire. Ms. Ayotte, she has run on this case for her entire political career. So she’s used it in multiple ads for her Senate campaign, and it is still featured prominently on her website for her campaign for Governor of New Hampshire this year. So that was one case where it appeared to be this very public evidence that she’d made this call to seek the death penalty and was already thinking at that point how it was going to play for her future political career, and then did act on that by using it for her future political career. Another example that showed I think a strong connection between elections and decisions of death penalty cases was evidence of this quote unquote, pay to play process in Harris County. So a study from a few years ago found that Harris County, again in the Houston area in Texas, found that attorneys in Harris County defense attorneys commonly donate to judges who then appoint them in capital cases and when you’re appointed in a capital case, you get a certain amount of payment for representing that person who’s facing a death sentence. And so, this research found that Harris County judges awarded attorneys who donated to them over twice the number of cases compared to non-donors, and it was essentially a return on investment where a donation of $1 to a Harris County Judge got you $28 in payment for representation and investigations, including by the Huffington Post into a particular attorney who represented many, many people over decades, his name was Skip Cornelius. He’s since deceased, I believe, but he represented people for decades in Harris County and capital cases, and he represented at least 10 people who were ultimately sentenced to death and these investigations found that he represented Jeffrey Provost whose sentence was overturned in February in part due to ineffective performance by Mr. Cornelius the attorney who carried an excessive caseload during the time of the trial and also failed to present critical mitigation evidence of abuse that Mr. Prevost suffered. So there were serious concerns to the point that a judge overturned Mr. Prevost’s sentence because of the performance of Mr. Cornelius. And similarly, Mr. Cornelius represented a man named Obel Cruz-Garcia who is still facing a death sentence. And Mr. Cornelius billed at least four hours per day claimed, like 30 fees for appearing in court for other cases during Mr. Cruz-Garcia’s trial. And he ultimately, you know, donated, we found that he donated to each of the judges in those cases and Mr. Prevost case and Mr. Cruz-Garcia’s case. And he donated over $17,000 to judges in Harris County over the course of his career. So that was another example where there just seemed to be this clear potential corrupting force based on the election of judges who needed to raise— who needed to raise money to continue being judges soliciting money from the various attorneys who would appear before them and ask them for appointments in capital cases. And there appeared to be a connection between that process and the representation of those clients.
Anne Holsinger 21:48
This report looked at decision makers from both parties, and also people in a variety of political offices and those things would suggest that this isn’t really a Republican or Democratic issue. And so if that’s the case, what is it about the US system that you think is causing these effects?
Leah Roemer 22:07
Yeah, I mean, we definitely saw this happen across the board, the examples that I just gave with Philly and Harris County, Lynne Abraham who was the DA in Philly, known as the Deadliest DA she was a Democrat. So it appeared to be somewhat nonpartisan. And I think the qualities of the US system that caused the effects are simply the incentives created by election cycles, to campaign, to share your record, to raise money to continue your campaign or to campaign in the future, and essentially, to make promises about how you will act in office. So that’s one thing for a representative like a congressperson or a mayor or a president because their whole job is seeking to implement policy. But that’s a whole nother thing for people who are supposed to be impartial, fair arbiters of justice. They’re supposed to handle the cases that come through the system in a consistent and apolitical way that they have these political incentives. So one thing that was really interesting about this project was looking into the origins of elections for judges and prosecutors and we found that it dated back to a series of reforms in the first half of the 1800s, especially the lead up to the Civil War. Previously, there had been an appointment system for judges and prosecutors. But people were growing upset because it appeared to involve a lot of favoritism, cronyism, corruption, and they believed that elections would help preserve democracy and keep the offices of judgeships and prosecutors accountable to the people. However, the reforms made at that time really didn’t anticipate the level of political spending we see in these elections today. You know, there’s some judicial elections where millions and millions of dollars are being spent now. And also, these— these reforms didn’t really anticipate the partisanship of those offices and how that partisan incentive of a— of an election cycle might shape the behavior of those people. And now you see some of the same problems that were cause for reform in the first place and we have very few accountability mechanisms in place for judges and prosecutors unfortunately. There are transparency issues, there’s their ethics issues. And these elections are also relatively low information for most voters compared to the elections of representatives like— like congresspeople, and presidents, and this kind of low information election environment compared with the lack of accountability me— mechanism, the political incentives, and also the nature of the actual job as just being able only to take the cases that come to you. These are the environments where a judge or prosecutor might say, “Oh, my gosh, my election is coming up. How on earth can I demonstrate my record to voters? Okay, one of the areas I have discretion is how to rule in a death penalty case or whether to seek the death penalty in this case.”. That— that incentive A structure could lead that elected official to make that call in a way that they wouldn’t if it wasn’t an election year. And so that’s the environment where the death penalty can have a huge impact without meaningful scrutiny of that judge or prosecutor’s behavior. And obviously, elections are critical. They protect our democracy. But the fact that other countries with very similar metrics to us and other areas, the fact that they use democratic elections for political representatives, but not for judges or prosecutors suggests that they’ve observed a risk of politicization altering behavior in those offices and I do think our research that was focused on the US bears that risk out to some extent.
Anne Holsinger 25:43
Are there changes that you think could reduce or eliminate the arbitrariness that comes from the influence of politics in capital cases?
Leah Roemer 25:51
So I do think that other countries approach is instructive here. I think that we could do more to definitely research their procedures and how they preserve democratic elections for political representatives, but how they approach judge and prosecutor elections differently. It does seem that there’s so much discretion inherent to the seeking of the death penalty, that it is especially vulnerable to the influence of politics. So I definitely think more transparency would certainly help us understand the full extent of political influence. And that would better equip the public to hold officials accountable for abuses of power. But just like past research has demonstrated that even with this promise of consistency in the death penalty, that there’s arbitrariness in the use of race and gender, and that these are actually additional factors influencing the seeking of the death penalty, it seems that the discretion in that choice makes it vulnerable to politics, inherently. Looking at judges, specifically, most places outside the US use some kind of appointment system and our entire federal court system uses appointments, the judicial candidates are extensively vetted, and then they’re interviewed in hearings, they really go through this sort of extensive, heavy duty process. So in our report, we did not take a position on which system was better or what system was the best, and there are definitely valid criticisms of the appointment system as well. And in fact, the public doesn’t participate as directly they don’t get to select this specific person that’s left to the representatives. However, I do think it’s worth having a larger conversation around this issue and discussing or re-examining what selection process for judges would truly serve the objectives of the judiciary, in fairness and impartiality. How can we best accomplish those objectives? I think for prosecutors, we could have a similar conversation, like I said, examine other countries’ methods for selecting prosecutors. But one thing that definitely emerged through our research was the fact that the promise of elections for prosecutors is not being borne out because these elections are largely uncontested. So the University of North Carolina’s Prosecutors and Politics Project has done extensive research in this area. And they found that over 80%, so four in five prosecutor elections are uncontested and 95% of prosecutor incumbents win reelection. So the thought or the you know, rationale for having elections for a particular office is that they give the voters a chance to weigh in on what the official has been doing. They make the official responsive to what the public wants. But if that official is never challenged, then the elections essentially a rubber stamp, there’s no meaningful choice for voters to make their views known. So certainly having more challengers in prosecutor elections would make the democratic process work better there and I think, would give the voters much more input on who they want to be their prosecutor and what practices they want those prosecutors to exhibit. And we are already seeing in the past couple years, these prominent examples of challengers in especially major metro areas, who are then making a difference with new policies. So I do think that process is starting, but it’s still a huge disparity uncontested versus contested prosecutor elections. And that would be a change that I think would introduce more democracy into the process.
Anne Holsinger 29:12
Is there anything else you think our listeners should know?
Leah Roemer 29:15
Yeah, so one thing I want to emphasize is just throughout our research, we really found no evidence that voters responded negatively to an anti-death penalty position. So even though there was this thought for decades that the voters needed this pro death penalty position, and that someone could not win an election, whether for president or for just a local judgeship, without taking a pro-death penalty position. That does not appear to be the case. And in fact, we found evidence of the opposite, that the voters are responding positively to the anti-death penalty position with this sort of new era of more progressive district attorneys that they’re responding positively to people being willing to criticize the death penalty and suggest reforms. And, and similarly, we found no evidence that voters responded negatively to grants of clemency and in fact, I think it would seem more likely aligned with our other findings that voters would respond positively to, you know, a willingness to critique the system and examine where it has gone wrong in the past and offered mercy to people. So just all this evidence really undercut what had been seen, I think, as a core part of the political playbook for so many decades.
Anne Holsinger 30:29
Thank you so much for joining me today. If our listeners would like to learn more about the death penalty, they can visit the DPIC website at deathpenaltyinfo.org and the full text of Lethal Election is available under DPIC Reports on the website, and will also be linked in the episode description. To make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice.
