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No Second Chances: What to Do After a Botched Execution

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Ohio tried and failed to execute Alva Campbell. The state shouldn't get a second chance.
The pathos and problems of America's death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich set June 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America's death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailm…

Few on Louisiana's death row are ever executed, largely owing to reversals, analysis finds

Louisiana death row
Louisiana death row
Louisiana, which has led the nation in homicide rates every year since 1989, sentences plenty of murderers to death but rarely executes them, in part because a huge proportion of death verdicts are reversed on appeal, according to a new study slated to come out Thursday.

The report, to be published in the Southern University Law Center's "Journal of Race, Gender and Poverty," examined each of the 241 death sentences handed down in Louisiana over the past 30 years.

Just 28 of those sentenced to death - less than 12 % - have been executed. Meanwhile, 127 of the death verdicts, more than 1/2 the total, have been reversed, meaning that either a new trial was ordered or the death sentence was rescinded. That number includes 9 exonerations.

The "extremely high" reversal rates in parishes throughout Louisiana, combined with what political science professor Frank Baumgartner and statistician Tim Lyman call "shocking" racial discrepancies, make the state's experience with capital punishment "deeply dysfunctional," the authors said.

The 2 published an earlier article based on their data that focused on racial disparities in the application of the death penalty. They found that those who killed white people were more than 10 times as likely as those who killed black people to be executed.

Their latest article homes in on the modern era of the death penalty, starting after the 1976 Gregg v. Georgia decision, in which the Supreme Court reaffirmed the constitutionality of capital punishment.

The trends the authors identified also are seen in other death penalty states, but they are exaggerated in Louisiana. For instance, Louisiana's rate of executions is 4.5 % points lower than the national average, and the rate of reversals is almost 10 % points higher.

"People don't realize, nationally speaking, that after you're handed down a death sentence, your odds of being executed are 13 %," said Baumgartner, a professor at the University of North Carolina who has been studying the death penalty for 15 years. "The numbers we see in Louisiana are even worse than nationally, which is amazing."

To have a death sentence reversed, serious flaws in a trial must be demonstrated, such as withheld evidence or improper jury instructions.

The reasons for the reversals run the gamut, according to the authors, with errors evident in pretrial, guilt and penalty phases. Prosecutors, defense counsel and even judges have been responsible for the errors, the study adds.

In recent years, the death penalty has inspired intermittent debated in Louisiana, particularly since the exoneration of Glenn Ford, a man who spent nearly 30 years on death row before the state determined he was innocent in 2014.

At the time of his release, he was the nation's longest-serving death row exoneree, according to the Death Penalty Information Center.

But while some states, like Texas and Oklahoma, continue a robust business in executions, Louisiana hasn't executed a convict since 2010. Prosecutors around the state have been increasingly reluctant to seek the ultimate penalty in recent years - in part, perhaps, for pragmatic reasons.

In East Baton Rouge Parish, there have been 32 death sentences in the "modern era" of the death penalty but only 8 since 2000, according to Lyman. In Jefferson Parish, there have been 31 death sentences but just 5 since 2000.

And in Orleans Parish, although there have been 37 death sentences since capital punishment was reinstated, only 1 death sentence has been handed down since 1997, and it eventually was thrown out, Lyman said.

Data suggest most district attorneys are now seeking death only in the most heinous of crimes.

In East Baton Rouge Parish, for example, there have been only 2 death penalty trials in the past 8 years, according to District Attorney Hillar Moore III. The Jefferson Parish district attorney has filed only 1 1st-degree murder indictment - a prerequisite for the death penalty - during the past 10 years, according to a spokesman. And in that case, the defendant pleaded guilty last month in exchange for the state agreeing to not seek the death penalty.

And in New Orleans, there is only 1 active capital murder case, that of Travis Boys, who is accused of killing a police officer.

In all states, death verdicts are harder and more expensive to obtain than life sentences. That's particularly true in Louisiana, which is 1 of 2 states where juries can convict on a 2nd-degree murder charge by a 10-2 vote. The charge carries an automatic life sentence.

Death cases, conversely, require all 12 jurors to agree in both the guilt and penalty phases of trial. For some Louisiana prosecutors, the higher burden of reaching a unanimous verdict in a capital case, and the cost of defending it over decades, has made the death penalty a less attractive option.

A study on the cost of the death penalty in Louisiana is pending. Studies in other states, however, have found that seeking the death penalty over life without parole adds as much as $1 million in prosecution costs alone. And roughly 1/3 of the money Louisiana spends on public defenders goes to private firms representing capital murder defendants, one reason the state's indigent defense system is strapped for cash.

In an interview, Baumgartner said it would be easier for states to simply eliminate death penalty as an option, as it also would eliminate costly appeals - especially because a death sentence is statistically likely to be overturned anyway.

"We have to look the death penalty in the eye and understand how it truly does function," he said. "Not how we wished it functioned but how it really does function. And every time we do that, it really is disturbing."

Source: The Advocate, April 27, 2016

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