America Is Stuck With the Death Penalty for (At Least) a Generation

With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Just 16 counties are fueling America's use of the death penalty

"The death penalty heavily depends on the county in which a defendant is tried."
"The death penalty heavily depends on the county in which a defendant is tried."
Just 16 counties in the US are driving the use of the death penalty, despite a nationwide movement away from the sentence, a new report from the Harvard Law School's Fair Punishment Project has found.

The "outlier counties" - scattered throughout Alabama, Florida, California, Louisiana, Nevada, Texas, and Arizona - have each imposed five or more death sentences between 2010 and 2015, a major departure from the overall downward trend in death penalty use since it peaked in 1996 with 315.

The report determined that the reasons behind the counties' deviation can be boiled down to 3 "structural failures" that they tend to have in common: overzealous prosecutors, inadequate defense lawyers, and racial bias and exclusion.

The outcomes of these sentencings, according to the report, regularly resulted in wrongful convictions and excessive punishment of young people, or those who suffer from mental illnesses or disabilities.

"Studies have shown [death sentences] to be extremely expensive, prone to error, applied in discriminatory ways, and imposed upon the most vulnerable, rather than the most culpable people," the report said.

For instance, in Maricopa County, Arizona, the report found that a disproportionate 57% of those sentenced to death between 2010 and 2015 were people of color. The county is notable for drawing national scrutiny in recent days - its sheriff, Joe Arpaio, was referred by a federal judge for criminal contempt charges last week after he allegedly failed to abide by a court order meant to prevent his office from racially profiling Latinos.

Arpaio has been accused by the Department of Justice of overseeing the "worst pattern of racial profiling by a law enforcement agency in US history."

The report also looked into Duval County, Florida, where 87% of its death sentences since 2010 have been used on African-American defendants. The report attributed much of the county's outlier status to State Attorney Angela Corey, who is currently campaigning for re-election and was dubbed the "cruelest prosecutor in America" last week by The Nation magazine.

Corey slammed the Fair Sentencing Project's statistics as being unfair in an interview with the Florida Times-Union on Tuesday.

The study's focus on 16 counties hearkens back to Supreme Court Justice Stephen Breyer's dissent in the 2015 Glossip v. Gross case, in which he pegged geography as being a major factor in determining which defendants are sentenced to death.

"Within a death penalty State, the imposition of the death penalty heavily depends on the county in which a defendant is tried," Breyer wrote.

The report, released Tuesday, examined just 8 of the 16 counties, while a second report detailing the remaining eight is set to be released in September.

Source: Business Insider, August 24, 2016

Harvard Death-Penalty Study Rips Maricopa County Prosecutors

Maricopa County's death-penalty system is plagued by "overzealous" prosecutors and creates a high number of questionable death-penalty cases, according to a new Harvard Law School report.

"Too Broken to Fix: Part I: An In-Depth Look at America's Outlier Death Penalty Counties," by the school's Fair Punishment Project, identifies Maricopa as 1 of 16 "outliers" among the nation's 3,143 counties or "county equivalents," for having sentenced 5 or more defendants to death during the period 2010-2015.

The report calls out three deputy county attorneys by name, suggesting they're reckless, and it lays heavy implications on the current county attorney, Bill Montgomery. But it also notes that the number of death-penalty cases has declined since the departure of former county attorney Andrew Thomas.

Thomas, who resigned office in 2010 for an unsuccessful run for state Attorney General, was disbarred in 2012 for abuse of power - as the Harvard study prominently mentions. Voters put Montgomery, also a Republican, in office in 2010 with a special election, re-electing him in 2012. He's running for office once again in 2016 against low-profile Democratic contender Diego Rodriguez.

For much of Montgomery's time in office, he has sought the death penalty at a higher-than-average rate, according to the study. Between 2010 and 2015, the county had 28 capital-punishment cases. On a per-homicide basis, the county's rate of death sentencing is 2.3 times higher than the rest of Arizona. Nationally, it accounts for about about 1 % of the country's population but 3.6 % of the country's death-penalty cases between 2010 and 2015.

"If I were charged with a crime in Maricopa County, based on what we've seen in capital cases - it's not a place where I would feel confident that the county attorney's office would play by the rules," Robert Smith, a Harvard researcher and director of the Fair Punishment Project tells New Times.

The report illuminates problems that go back much further than 2010, showing that Maricopa County has had more cases - and more problems with those cases and its prosecutorial system - than nearly any other U.S. county.

Founded in 2005 by Harvard Law School professor Charles J. Ogletree Jr., the Fair Punishment Project has a stated mission to serve as a "critical critical bridge between scholarship, law, policy and practice to solve the challenges of a multi-racial society." The project, led by professor Ronald Sullivan Jr., is a collaboration between the law school's Charles Hamilton Houston Institute for Race and Justice and its Criminal Justice Institute.

Citing media coverage, including stories from New Times, the report notes that starting in 2004, Thomas sought capital cases at twice the rate of his predecessor, Rick Romley - thus crippling the county's public-defender system and leaving a dozen murder defendants without lawyers. While the county has backed off its zeal for the death penalty since 2010, Montgomery's office retains three deputies whose strong interest in capital cases appears to color their conduct in court.

Jeannette Gallagher, Juan Martinez, and Vincent Imbordino account for more than 1/3 of all of the capital cases (21 of 61) in which the Arizona Supreme Court has found problems on direct appeal since 2006. The higher court overturned or vacated the death penalty in 4 of the 21 cases and found instances of "improper behavior" in 8 of the cases.

The report notes that the state Supreme Court found that Martinez - who gained worldwide fame as the prosecutor in the Jodi Arias murder trial - committed misconduct in at least 3 capital cases. Additionally, the state's high court cited 17 examples where Martinez had acted "inappropriately" in the murder prosecution of Shawn Patrick Lynch. (The U.S. Supreme Court overturned the death penalty in that case for reasons unrelated to alleged prosecutor problems.)

The report cites instances in which the state Supreme Court deemed Gallagher's conduct "improper," "very troubling," and "entirely unprofessional."

"Gallagher, who heads Maricopa's capital case unit, has personally obtained at least nine death sentences, including against a military veteran diagnosed with paranoid schizophrenia and a brain-damaged child whom she described to the jury as '16 going on 35,'" according to the report.

Smith has harsh words for the 3 prosecutors.

"They don't have the temperament required to prosecute a jaywalking citation, and what they're being entrusted with is the death penalty," he tells New Times. "They shouldn't be prosecuting misdemeanor cases, much less deciding whether or not somebody lives or dies."

The report delves into the problems behind the high rate of cases, noting overworked or incompetent defense attorneys, racial bias, and the exonerations of 5 Maricopa County death-penalty defendants since 1978. More than 1/2 of the people sentenced to death between 2010 and 2015 were people of color. The Fair Punishment Project can't say for certain whether Maricopa County has executed any innocent people, but Smith says it has come "perilously close."

It's Montgomery's responsibility to fix the county's sorry record on the death penalty, Smith adds, even though many of its problems predate his tenure. As things stand now, Montgomery shows a "callous disregard" for the people he's been entrusted to protect, Smith says.

Montgomery did not return a message seeking comment.

Source: phoenixnewtimes.com, August 24, 2016

Harvard Law: Duval County among nation's leaders in death penalty sentences

In Duval County, it has taken just 66 minutes in the sentencing phase to decide to impose the death penalty on a murderer. And often, it has been done without a unanimous jury.

That stat illustrates why one group believes Duval is among the worst of the worst when it comes to death penalty sentences, with roughly 1/4 of Florida's death sentences coming from Duval County, with a mere five percent of the state's population.

A new report from the Harvard Law School's Fair Punishment Project contends Duval County is one of a group of "outlier" counties, where the death penalty is used more than anywhere else in the country.

The report contends Duval and other so-called outlier counties are "plagued by prosecutorial misconduct, bad lawyers, and racial bias."

Turning its attention to Duval County specifically, the report contends 48 % of Duval County death penalty cases involve defendants who have an intellectual disability, brain damage, or mental illness.

The report cites a death penalty conviction for a man with an IQ of 67 who had been diagnosed with bipolar disorder as a vivid example.

Further, 20 % of those death penalty cases involve defendants under the age of 21.

Duval County had findings of prosecutorial misconduct in 16 % of its cases; Angela Corey, the current state attorney, and her chief prosecutor Bernie de la Rionda were named in the report specifically.

"Of the death sentences that the Florida Supreme Court has reviewed from Duval County since 2006, 1 in every 6 cases involved a finding of inappropriate behavior, misuse of discretion, or prosecutorial misconduct, including 2 recent death sentences tried by Bernie de la Rionda that the Florida Supreme Court vacated due to their excessive harshness," the report contends.

Other issues arose also, according to the Fair Punishment Project.

In Duval, the guilty verdict and the sentencing often occurred in the same day, permitting no mitigating evidence to be offered.

Of the defendants sentenced to death in Duval County, 87 % were African-American.

This trend predated Corey, claims the FPP, though it has escalated under her watch.

"Between 1991-2009, 62 percent of death sentences from Duval County were imposed against African-American defendants, compared to just 33 % in the rest of Florida. Since 2010, 1 year after Angela Corey took office, 87 % of death sentences have been imposed against African-American defendants, compared to 44 % in the rest of the state. African-Americans make up approximately 30 % of Duval's population, and 17 % of the state's population," the report contends.

Of those sentenced to death, 88 % were "non-unanimous," the report added.

An expert quoted in the press release lamented the insufficiency of defense in counties like Duval.

"This report vividly shows how the last remnants of the American death penalty still survive: in counties that have wholly crippled the defense function," said Professor Brandon Garrett of the University of Virginia School of Law. "Conversely, in the places that provide minimally fair resources for defense representation, we have seen a steep decline in death sentences. Readers of this report will learn that what is left of the death penalty persists only through extreme unfairness and arbitrariness."

With Corey facing a competitive primary in the state attorney race, national scrutiny has been inconveniently timed for the 2-term incumbent.

The Nation posed the question: "Is Angela Corey the cruelest prosecutor in America?"

When asked about this article last week, Corey was dismissive, saying that the article was from a "liberal blogger in San Francisco."

One can expect a similar response to this report.

Source: floridapolitics.com, August 24, 2016

State Attorney Angela Corey calls new Harvard study about death-sentencing 'unfair and untrue'

Duval County is again among a handful of U.S. counties that most frequently send convicted criminals to their deaths, according to a Harvard University study released Tuesday.

The Fair Punishment Project, of Harvard Law School's Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, highlighted the 16 U.S. counties that sentenced at least 5 people to death from 2010 to 2015. Duval had 16 death sentences, and 88 % of its death sentences since 2006 were not unanimous.

The same day the Harvard report was released, a New York Times Magazine story highlighting the top death-sentencing counties focused on the murder of Shelby Farah of Jacksonville. Farah's mother, Darlene, has asked local prosecutors not to seek the death penalty, but they are still seeking death.

The feature also discussed the area's chief assistant public defender, Refik Eler, who has had 2 death cases overturned because of his ineffective assistance of counsel.

"I wouldn't say it's troubling. There were only 2 cases reversed" and 1 is pending on appeal, Eler said. "In a 30-year career, I've tried several hundred cases."

As one of the attorneys who's represented many poor clients in death cases, Eler said, he's proud of the times he has succeeded. "You have to really be there and do it and understand the many factors that go into strategic decisions."

State Attorney Angela Corey rebutted the Harvard Law School report, saying the statistics were unfair and the researchers should've shared data with her before publishing.

The report focused on:

-- Corey's "overzealous" prosecution

-- Public Defender Matt Shirk's office providing ineffective counsel

-- Racial bias at the courthouse.

("Since 2010, 1 year after Angela Corey took office, 87 % of death sentences have been imposed against African-American defendants, compared to 44 % in the rest of the state. African-Americans make up approximately 30 % of Duval's population, and 17 % of the state's population.") The Times story was the 2nd magazine article in a week focusing on Duval's role as a leader in tough-on-crime sentencing. Last week, liberal magazine The Nation published a feature asking, "Is Angela Corey the Cruelest Prosecutor in America?", and back in June, conservative magazine National Review criticized her.

"It's totally without merit," Corey said of the report, saying she was unfairly targeted when she didn't divert from her predecessors' approaches to prosecuting death-penalty cases.


Corey called the Fair Punishment Project report and the magazine story untrue. She questioned why the report came out a week before her Aug. 30 primary.

But Rob Smith, the legal research fellow who headed the project, said the election had nothing to do with the timing.

"We looked at the study not to persecute her. We weren't just picking anecdotes out and picking on people. We wanted to have an objective, thematic, national look. Surely she doesn't believe the Fair Punishment Project at Harvard Law School decided to create a gigantic project with a dozen people working on it over months to pick a time period just to affect Angela Corey's election. ...

Contrary to Ms. Corey's belief, the world doesn't revolve around her."

Smith said, 'I also think that she's a bully, and what I mean by that is that when a Harvard Law School professor Alan Dershowitz called her out in a case, she calls and threatens the university. When her predecessor critiques something she did, she criticizes Mr. Shorstein. When her IT person criticizes something she does, she fires that person. She gets upset and she lashes out. Bullies shouldn't be deciding who lives and who dies."

In interviews Tuesday, Corey said it was unfair to report on the findings without first reviewing the data the project collected. Over the course of 2 telephone interviews, Corey grew increasingly combative while 2 of her top homicide attorneys remained collegial. 3 times she interrupted one of them to tell him to stop being apologetic.

Those attorneys, Bernie de la Rionda and Mark Caliel, addressed many of the statistics in the report and said why they felt they were misleading. Caliel said when considering the race of all 1st-degree murder suspects, there likely isn't a disparity between those who qualified for death and those sentenced to death. They said they believe seeking the death penalty honors the many black victims of murder.

"What scholars tend to forget is all lives matter," de la Rionda said. "I'd venture to ask this question. Who are our victims? If the focus is going to be on race, what was the race of our victims?"

He said he respects organizations that oppose the death penalty, but he believes it's the right punishment for certain crimes.

Corey and de la Rionda also said the manner of handling death cases and the number of death cases haven't changed much since Ed Austin and Harry Shorstein were the elected state attorneys before Corey. Smith disagreed, saying that while most the country reduced the number of death sentences, Corey increased it even when the murder rate dropped.


Harvard's Smith, who has handled death-penalty cases, said the decision to do this study came after a Supreme Court dissent last summer noted the geographic concentration of death-penalty cases. At the time, only 15 counties had 5 or more death penalties from 2010 to 2015; that number grew to 16. Many viewed that dissent as an open invitation to challenge the constitutionality of the death penalty. The Supreme Court has previously ruled that the intellectually disabled and juveniles should not be executed. Smith said he wanted to see if the few counties still sending people to death were sentencing "the worst of the worst" or the types of people the Supreme Court said shouldn't be executed.

Smith has previously published reports noting that de la Rionda is one of the nation's most prolific death-penalty prosecutors.

"In Duval what happens is you have both this aggressive prosecutor in Angela Corey where she seeks the death penalty in cases where many other prosecutors would not and this non-unanimous jury rule," he said. The law didn't used to require any specific number of jurors to agree to a death sentence; it now requires a 10-2 decision. "Those 2 things work together."

Smith said in places like Duval County, he found that the people on death row were not the most heinous criminals. Instead, the report noted, 48 % had an intellectual disability, severe mental illness or brain damage. 1 in 5 were younger than 21.

And shockingly, he said, the sentencing phase of the trial - when prosecutors explain why a crime is particularly egregious, defense attorneys explain why someone shouldn't be executed and a jury decides death or life - in Jacksonville lasts one day. That means opening statements, witnesses, evidence, closing statements and jury deliberation all occur in the same workday.

For that, Smith blamed defense attorneys. "You have an overaggressive prosecutor and defense lawyers who you wouldn't want to represent you in a parking ticket case."

Source: jacksonville.com, August 24, 2016

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