The StandDown Texas Project

Study Vindicates N.J. Justice's Stance Against Capital Punishment

That's the title of a Newark Star-Ledger editorial.  It appeared in the Saturday edition.

New Jersey Supreme Court Justice Virginia Long was a voice of reason as our state agonized over ending the death penalty. Now, as she heads out the door to retirement, an important new study confirms she got it exactly right.

To explain why she consistently voted against capital punishment — often as the sole dissenter — Long said: “It was the randomness of the application that was constantly bothering me.’’

That’s how the death penalty, which New Jersey eliminated five years ago, is still being applied in other states — haphazardly. Not based on the heinousness of the crime, this new study found.

It was conducted by Stanford law professor John Donohue, who used Connecticut as an example. After analyzing all murder cases over a 34-year period, he found that the death penalty doesn’t punish the worst criminals, as it’s intended to. Inmates on death row were indistinguishable from equally violent offenders who escaped that penalty.

The whole sentencing process, which is similar to that of other death penalty states, is utterly arbitrary, he concluded. The nature of the crime bore almost no relationship to how the case turned out.

Among the 29 defendants who had a death penalty hearing in Connecticut, there was no clear difference in the level of depravity or egregiousness for the 17 who got life without parole and the 12 sentenced to death.

The process is also discriminatory. Black defendants are more likely to be sentenced to death if their victim is white. Defendants in certain geographic areas are also more likely to end up on death row.

The scholarly study is "Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4,686 Murders to One Execution," by John J. Donohue of Stanford Law School.  The paper's abstract available at the link.

More from Connecticut and this legislative session's repeal dialgoue begis a th the link.

Additional Coverage of ABA Missouri Report

The ABA Missouri Assessment Report is available at the link.

Today's Kansas City Star reports, "Missouri death-penalty cases should be reduced, study says."  It's by Jason Hancock.

Missouri should narrow the kinds of cases subject to the death penalty so that only the most serious murders are eligible, according a two-year study sponsored by the American Bar Association.

The state also should prohibit the execution of the severely mentally ill and do a better job of preserving forensic evidence such as DNA samples. it said.

The study, which does not take a position on whether the death penalty should be legal, was released Thursday and conducted by a panel of law professors, private attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents.

They said serious problems with the death penalty in Missouri must be addressed to ensure fairness in the system and prevent an innocent person from losing his or her life.

“It is the ultimate penalty, and we’ve got to get it right every time,” said Douglas Copeland, a St. Louis attorney who served on the panel.

Among the panel’s other suggestions: improving standards for defense counsel in death penalty cases; revising jury instructions to help jurors better understand their roles in death penalty cases, and narrowing the number of cases subject to the death penalty.

“We discovered important procedural and resource changes that could dramatically reduce errors and inconsistencies in Missouri’s death penalty system,” said Paul Litton, a law professor at the University of Missouri-Columbia.

"Study recommends changes to Missouri death penalty system," by Elizabeth Crisp for the St. Louis Post-Dispatch.

Missouri prosecutors too often are given the opportunity to seek the death penalty in murder cases, according to a new report.

Aside from limiting the types of cases in which the death penalty can be sought, the American Bar Association-sponsored report makes more than 25 recommendations that it says would improve fairness in the use of capital punishment here. The recommendations range from new evidence preservation policies to laws that aim to protect the mentally disabled.

Currently, prosecutors can use one of 17 aggravating circumstances to argue for death sentences in murder cases.

“Under the current law, virtually any murder is eligible for the death penalty,” said St. Louis attorney Douglas Copeland, who co-chaired the assessment committee that drafted the recommendations.

And:

Missouri is the 10th state for which the ABA has sponsored a death penalty report.

Copeland said the committee members’ views on the death penalty were split. The ABA has sought a moratorium on use of the death penalty in the United States, but the Missouri group did not consider whether the state should end the use of capital punishment, he said.

Instead, the goal, Copeland said, was to “minimize the risk of executing the innocent” and make sure that capital punishment is used only in the most egregious cases.

“Everyone must recognize that it is the ultimate penalty and one that cannot be undone,” he said. “We must get it right every time.”

"Bar Association: Missouri death penalty needs reform," by Jessica Machetta at MissouriNet.  There is video at the link.

A Missouri law panel says crimes punishable by the death penalty are too broad in our state. The American Bar Association report calls for consistency and clarification in state law.

Missouri is the tenth state for which the American Bar Association has released an in-depth analysis — 400 pages worth — of the death penalty. St. Louis Attorney Douglas Copeland was on the panel that has examined the system for two years.

He makes one thing clear — it was not the panel’s function to decide whether there should be a death penalty, or that a moratorium should be implemented.

The Missouri Association of Prosecuting Attorneys responded to that by issuing a statement that says, “Missouri’s prosecutors are pleased the ABA did not recommend a moratorium on the death penalty, as they have in many other states. They obviously realize that, while there is always room for improvement, Missouri’s criminal justice system is fundamentally sound.”

The group did identfiy several factors it says leads to possible inconsistencies in sentencing, including mental illness, preservation of DNA evidence and trial court instruction for jurors. Now, prosecutors can argue to a jury that someone should be sentenced to death, the report says. It lists 17 aggravating circumstances that give prosecutors a wide birth for recommending the death penalty.

"Commission finds death penalty unevenly applied in Missouri," by Dick Aldrich at Missouri News; also with video..

The goal of the assessment team was not to support or rally against the state’s current capital punishment law. Rather, panel member Douglas Copeland said the panel’s assignment was to conduct a review of the laws, procedures, and practices by which the death penalty is implemented in Missouri.

“We kind of left our opinions on the death penalty at the door,” said panel spokesman Douglas Copeland, a private practice attorney from St. Louis.

Overall, the committee found that inconsistencies in Missouri’s laws lead to broad interpretations that in turn lead to inconsistent sentencing. University of Missouri Law School professor Paul Litton said the U.S. Supreme Court has ruled that the death penalty should be reserved only for the most extreme cases of murder. Litton said the assessment team found 17 aggravating circumstances in Missouri law that trigger the death sentence, with many creating broad categories under which a criminal can receive a death sentence.

“As a result, the aggravating circumstances provide little guidance to prosecutors with respect to sentencing decisions,” said Litton.

Professor Rodney Uphoff of the University of Missouri School of Law said Missouri courts hand out the death sentence in a seemingly arbitrary manner.

“And the problem with that is, in a run of the mill armed robbery that sadly ends in a murder, that young man gets the death sentence, when across the state, somebody who commits a double homicide only gets life, or life without the possibility for parole,” Uphoff said. “We’re not criticizing prosecutors, what we’re saying is when you look at crimes across the state, you shouldn’t have a vastly different sentence for somebody who commits a crime on end of the state and not on the other end of the state.”

The report concludes that the state legislature is going to have to work out a solution to the statutory problems to bring more consistency to the death penalty process in Missouri.

Earlier coverage of the ABA Missouri Assessment Report is at the link.

ABA Assessment in Missouri

"Study says Missouri death penalty too broad," is the AP post by David A. Lieb, via the Kansas City Star.  It's also available via the St. Louis Post-Dispatch.

Missouri has too many reasons for which prosecutors can pursue the death penalty against murder suspects and needs to do a better job of preserving forensic evidence such as DNA samples, according to a report being released Thursday.

 The report is the result of a two-year study sponsored by the American Bar Association that was conducted by a panel of law professors, private-sector attorneys and federal judges who had been nominated to the bench by Republican and Democratic presidents. The Associated Press obtained a copy of the report before it was to be publicly released later Thursday at a Capitol news conference.

 The study notes that Missouri has 17 "aggravating circumstances" that give prosecutors wide discretion by which they can argue to jurors that someone should be sentenced to death. One justification, for example, is that the murder was "wantonly vile." The result is that the circumstances "are so broadly drafted as to qualify virtually any intentional homicide as a death penalty case," the report says.

 The report recommends narrowing the law so that only the most serious murder cases are eligible for the death penalty.

Also from Missouri, KMOX-AM reports, "Death Penalty Under Review."

The death penalty in Missouri is again under scrutiny, and this time the concern is the cost.   A senate committee heard testimony from a number of people including the Deputy Director of the Missouri Public Defender System, Dan Gralike.

“I am personally familiar with one death prosecution. It had to be retried because because of various errors five times since 1992. I estimate the cost to the state to be well over three or four  million dollars simply for the cost of the public defender.” said Gralike.

A bill under consideration would have the state auditor study the cost of Missouri’s death penalty.   Republican Representative Stanley Cox testified some crimes deserve the death penalty and the option should not be eliminated.

The ABA Missouri Assessment is available at the ABA Moratorium Implementation Project website.

Late last year, a Kentucky Assessment was released.  Related posts, including other state assessments, are in the ABA index.

Ohio Justice Pfeifer

"Ohio justice rejects death penalty law he wrote," is the AP post written by Andrew Welsch-Huggins, via the New York Times.  It's also available via the San Francisco Chronicle.  Here's an extended excerpt:

As a young state senator 30 years ago, Paul Pfeifer helped write Ohio's death penalty law. Today, as the senior member of the state Supreme Court, he's trying to eliminate it.

It's not uncommon for sitting judges to change their mind on the death penalty — U.S. Supreme Court Justice Harry Blackmun famously said in 1994 he would no longer "tinker with the machinery of death" — but Pfeifer may be the only one to argue so ardently against a capital punishment law he himself created, and yet continue to rule on death penalty cases.

"I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," Pfeifer said in his most recent public comments, testifying in December in favor a bill to abolish Ohio's law. "I don't see what society gains from that."

After the U.S. Supreme Court declared capital punishment unconstitutional in 1972, states spent several years rewriting their laws; those enacted by Florida, Georgia and Texas ultimately met the court's threshold for constitutionality. Other states had to follow those models to have their laws upheld. Ohio's first attempt, in 1974, was found unconstitutional, but the second try, when Pfeifer was chairman of the Senate Judiciary Committee, was enacted in 1981 and has never been successfully challenged. Lawmakers pledged at the time to draft a law reserved for the most heinous murders.

At least two county prosecutors say Pfeifer should stop ruling on death sentences, including Hamilton County prosecutor Joe Deters, who said that Pfeifer's actions were inappropriate. "It gives rise to a credible inference that he cannot be fair to both sides," Deters said recently.

Pfeifer's position is unusual but on solid legal ground as long as he keeps his opinions out of his rulings, said Marianna Bettman, a University of Cincinnati law professor and former state appeals court judge.

Ohio has 148 inmates on death row. Executions are temporarily on hold while federal courts review the state's lethal injection procedures, but that delay is not expected to last forever. The Democrat-sponsored bill to abolish the death penalty has little chance of passing.

Pfeifer, a Republican, has always charted his own course on the court. For years he was a member of a foursome — two Democrats and two moderate Republicans — dubbed "the Gang of Four" for a series of 4-3 rulings that critics said were anti-business and favored Democrats and their causes. He's also not afraid of mud-slinging: In his spare time, the lifelong farmer raises Black Angus cattle.

Pfeifer had been on the court only two years when, in 1994, he dissented on a vote upholding the death penalty for a man sentenced to death for shooting his ex-girlfriend at the elementary school where she worked as a custodian. Already, he appeared to be having his doubts, writing that "the death penalty is special" and should be "reserved for those committing what the state views as the most heinous of murders." That defendant, John Simko, died of natural causes on death row in 1997.

Pfeifer made similar statements in court opinions over the years. He took his position public in 2001, calling unsuccessfully for an independent panel to review the law. He began to complain that prosecutors were overusing the statute, seeking death sentences in domestic quarrels that went bad instead of for the worst of the worst killers.

He often cites the case of Richard Nields, who murdered his girlfriend in their southwestern Ohio home in 1997, then stole her car and travelers' checks, as an example of overreaching by prosecutors.

"This case is not about robbery," Pfeifer wrote in his dissent to the court's 2001 decision upholding Nields' death sentence. "It is about alcoholism, rage and rejection and about Nields' inability to cope with any of them." Ultimately, Gov. John Kasich agreed and last year changed Nields' sentence to life without parole.

In January 2011, Pfeifer made his strongest statements to date, calling on Kasich to empty death row.

Pfeifer says he's required as a judge to take positions to make laws better, hence his current stand. He's also required to rule according to the law and the Constitution, which he says he does. Ohio Supreme Court Chief Justice Maureen O'Connor says she's comfortable Pfeifer is following the law and not showing bias.

Since 2001, Pfeifer has written the majority opinion upholding death sentences in five cases, dissented in two others and upheld death sentences while disagreeing on aspects of the decision in four other cases.

The ABA Journal posts, "Ohio Justice Who Helped Write Death Penalty Law Now Opposes It."  It's by Debra Cassens Weiss.

An Ohio Supreme Court justice who helped write the state’s death penalty law as a state legislator in 1981 is now speaking out against it.

In December, Justice Paul Pfeifer testified in favor of a bill to abolish capital punishment, the Associated Press reports. "I have concluded that the death sentence makes no sense to me at this point when you can have life without the possibility of parole," he said.

Earlier coverage of Ohio Supreme Court Justice Pheifer on capital punishment begins at the link.

Ohio Justice Continues to Speak Out

"Justice Paul Pfeifer rethinks death penalty," is by Henry S. Conte in the Bucyrus Telegraph-Forum.

Bucyrus native Justice Paul E. Pfeifer has indicated in recent years that the death penalty statute he helped establish needs to be taken away.

"I think a little bit of it comes from personal experience, but I think it has more to do with what the Legislature has done now, which is what we were trying to do in the Senate before," Pfeifer said.

The senior associate justice of the Ohio Supreme Court was referring to the law that now allows a life sentence with no hope of parole.

"I always felt as though a life sentence without the possibility of parole was the preferred sentence," Pfeifer said. "It is a death lottery the way it is now. It depends on where you commit the offense as to whether or not the death penalty is sought.

"I know that Joe Deters (prosecutor) in Hamilton County -- his attitude is that they are all death penalty cases. It is just the luck of the draw as to where it happens."

And:

"There is a change coming, but I don't think it is going to be this year. It may be three, four or five years from now, maybe even a decade. I think we have a hard time claiming high moral ground as a nation with a straight face if we continue to have the death penalty. Most of the developed countries in the world do not have it. You can't even be in the European Union if you have it, and Canada doesn't have it."

Earlier news coverage from Ohio includes the state's ongoing lethal injection problems and the Ohio's Joint Task Force to Study Administration of the Death Penalty. 

There is also additional coverage of Justice Pfeifer's call for repeal. 

In 2007, an ABA assessment team issued a report detailing problems with the state's administration of capital punishment.  The complete ABA Moratorium Implementation Project's Ohio Assessment report is available via the ABA.

 

From Denton, Texas

"DA’s office: Death penalty not appropriate in 2 recent cases," is the Denton Record-Chronicle report written by Donna Fielder.

In a state known for its relatively high rate of murder cases that result in executions, Denton County has not sought the death penalty since District Attorney Paul Johnson took office in 2007.

But that is not to say Johnson is against the death penalty or won’t seek it, said his first assistant Jamie Beck.

“He is 100 percent in favor of it,” Beck said in an interview. “I guarantee that when the right case comes, he will seek it.”

The death penalty can be sought only in certain circumstances that include murder of a child younger than 10, murder in the course of another felony crime, murder of a police officer or firefighter in the course of duty, murder for financial reimbursement, murder of a judge for retaliation, murder in the course of escape from a penal institution and murder inside a penal institution.

Some recent horrendous crimes have not met the district attorney’s criteria.

And:

Since Johnson’s term began, there have been seven cases in which the death penalty was an option. Beck said that in each case the evidence did not rise to the level of seeking it. A 17-year-old female defendant was not eligible for execution because of her age, Beck said. The others were convicted of capital murder and were sentenced to life without parole.

Since the option of life without parole became law in 1995, the number of cases in which the death penalty has been sought statewide has gone steadily down, Beck said. Formerly, a life sentence could result in parole after 40 years. The option of life without parole has changed the trend in death penalty sentences, she said.

The Random Horror of the Death Penalty

That's the title of an editorial column in the Sunday New York Times.  It's written by Lincoln Caplan, a member of the Times' Editorial Board who writes about the Supreme Court and legal issues.  A graphic accompanies the column.  It's a must-read.

The Supreme Court has not banned capital punishment, as it should, but it has long held that the death penalty is unconstitutional if randomly imposed on a handful of people. An important new study based on capital cases in Connecticut provides powerful evidence that death sentences are haphazardly meted out, with virtually no connection to the heinousness of the crime.

A number of studies in the last three decades have shown that black defendants are more likely to be sentenced to death if their victim is white rather than black. But defenders of capital punishment often respond to those studies by arguing that the “worst of the worst” are sentenced to death because their crimes are the most egregious.

The Connecticut study, conducted by John Donohue, a Stanford law professor, completely dispels this erroneous reasoning. It analyzed all murder cases in Connecticut over a 34-year period and found that inmates on death row are indistinguishable from equally violent offenders who escape that penalty. It shows that the process in Connecticut — similar to those in other death-penalty states — is utterly arbitrary and discriminatory.

And:

In 1972, the Supreme Court in Furman v. Georgia struck down state death-penalty laws that lacked guidelines on how the penalty should be applied. It found that with only 15 percent of death-eligible murder convictions in Georgia leading to a death sentence, imposition of the penalty was “freakishly” rare — and therefore arbitrary and unconstitutional. The rate in the Donohue study is far more extreme at 4.4 percent.

The court also said in Furman that a death-penalty system must have a “meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not.” Clearly, Connecticut’s system fails this requirement. Because it’s a small state, Professor Donohue was able to conduct a comprehensive study of every capital murder case with a conviction. But Connecticut’s lessons also apply to bigger states, like California, Texas and Ohio, where prosecutors even in neighboring counties use drastically different factors to impose the death penalty.

In 2011, the number of new death sentences imposed in the United States fell by 25 percent to 78, the lowest number since capital punishment was reinstated in 1976. This “freakishly” rare application — among the thousands of murder cases a year — is strong evidence that every state system is arbitrary and capricious. The death penalty in Connecticut is clearly unconstitutional, barbaric and should be abolished, as it should be everywhere.

More on the 1972 case of Furman v. Georgia, in which the Supreme Court ruled existing death penalty laws unconstitutional - as well as the 1976 case of Gregg v. Georgia, via Oyez.

The Arbitrary Nature of Capital Charging

"Dallas criminal courts judge rules death penalty unconstitutional," is the title of Jennifer Emily's Dallas Mornign News report of December 25th.

A state district judge in Dallas County has ruled that a Texas death penalty statute is unconstitutional because it allows prosecutors to arbitrarily seek capital punishment.

Prosecutors are appealing Judge Teresa Hawthorne’s decision and have filed a motion to recuse her from Roderick Harris’ capital murder case.

Hawthorne acknowledged when making her ruling last week that the Texas Court of Criminal Appeals and other courts have “consistently rejected” the reasons that she found the statute unconstitutional, according to a transcript of the hearing. But she said changes in the law can still be made.

Hawthorne, who could not be reached for comment later, said she refused to be a “rubber-stamp judge.” The Democrat took office in January and is a former public defender.

“My decision is not an act of unabashed judicial activism,” she said Monday from the bench. “I remember when women and blacks could not vote. I remember when so-called witches were burned. I remember when gays had to hide to be in the military. My decision is not to buck the system or stir the waters.”

And:

Hawthorne ruled that she believed:

The Legislature failed to define terms like “continuing threat” and “moral blameworthiness” for jurors deciding between a life or death sentence.

The Legislature’s definition of mitigating evidence is vague.

State law prevents jurors from knowing that one vote for life can keep a defendant from receiving a death sentence.

The law allowing a judge to enter into evidence “any matter that the court deems relevant to sentence” means that each judge hearing a case has the power to influence a sentence.

“The law should not be arbitrary or capricious,” Hawthorne said in court.

In 2010, a state district judge in Harris County also ruled the state's death penalty statute unconstitutional.  A hearing the judge held was shut down by the Court of Criminal Appeals early last year.  That case against John Edward Green Jr. ended in a plea agreement.

Racially Biased Testimony Should Not Stand

That's the title of an editorial in today's Houston Chronicle on the Duane Buck case.

In January 2009, when Harris County District Attorney Pat Lykos took office, she lost no time in making good on her campaign promise to restore that department's integrity, left in tatters by her disgraced immediate predecessor.

Among her many innovations, she created programs for the most vulnerable crime victims, pushed for a regional crime lab, improved DNA protocols, and established a post-conviction review unit, which has secured the release of several wrongfully convicted inmates.

Now, we appeal to Lykos to address another serious issue, and hopefully take steps to see that justice is done: It's the case of death row inmate Duane Buck, who was convicted in the 1995 murders of his former girlfriend and her male friend, and at issue is whether racially charged statements had played a role in his receiving the death penalty.

And:

In September, the United States Supreme Court temporarily stayed Buck's execution, so they could review his request for a new punishment hearing. A week ago Monday, the court denied Buck's petition, leaving his fate in the hands of Texas officials. Lykos could now request that another execution date be set.

Our sincere hope is that she does not make that request, but instead that she "confess error," in legal terms, and also prevail on Texas Attorney General Greg Abbott to do the same, meaning they would not oppose Buck's request for a new sentencing hearing. Lykos told the Chronicle's Lise Olsen that she would "carefully evaluate the arguments of Mr. Buck's lawyers and his supporters" before deciding her course ("Racial pattern in death penalty," Page A1, Sunday).

Earlier coverage of Duane Buck's case and Harris County death penalty sentencing practices begins at the link.

BET News provides additional coverage to journalist Lise Olsen's reporting on Harris County death penalty cases, "Blacks Received 12 of the Last 13 Death Sentences in One Texas County."  It's by Jamie Katz.

Broken down by race, the population of Harris County, Texas, does not seem unusual or lopsided in any way: Census data indicates that the county, which contains the city of Houston, is 61 percent white, 18 percent Black, 38 percent Latino (a category that includes white and non-white), 6  percent Asian, and less than 1 percent Native American and others.

What is unusual, and very lopsided, is the racial breakdown of men sentenced to the death penalty in Harris County. According to a report by Lise Olsen in the Houston Chronicle, 12 of the last 13 men sentenced to death in the county were Black. The other man was Latino.

These figures bear out a pattern that has been documented nationwide, of African-Americans disproportionately being sentenced to capital punishment. But Harris County does enjoy a special, if macabre, distinction: It sends a lot of convicts to the death chamber. In fact, over a period of several decades, Harris County sentenced more people to death than any other state, except for Texas as a whole. Which means that the statistics on capital punishment are based on a larger sample size, as grim as that fact may be.

The Chronicle report picks up where earlier studies left off. A 2008 article in The Houston Law Review found that not only were defendants of any background who kill whites more likely to receive the death penalty, but the race of the defendant by itself plays an important role in explaining the severity of the punishment.

The case of Duane Buck, an African-American from Houston convicted in a double murder, has given the issue new urgency in Harris County. At his sentencing 14 years ago, testimony was permitted from a former prison psychiatrist who claimed that Blacks are more dangerous than whites.

The 2008 Houston Law Review article is the work of University of Denver scholar Scott Phillips, who conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

More on Harris County Death Sentences

"Study Finds Racial Pattern In Texas Death Penalty Sentencing," from Black Voices News is at Huffington Post.

The connection between race and capital punishment has been a hot topic this year, but a new study has found a shocking pattern in the way one Texas county sentences people to die.

Of the last 13 men that have been sentenced to death in Harris County, 12 of them are black, according to an analysis of prison and prosecution records by the Houston Chronicle. The discovery has prompted some local lawyers to ask for an investigation and calls for more debate around the administration of capital punishment.

"The more the defendant looks like you the harder it is to kill him — human nature being what it is," said Robert Murrow, one of the county's capital defense attorneys. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

The role of race in death penalty sentencing became a major issue in the county when the U.S. Supreme Court halted the execution of Duane Buck, after reviewing the testimony of a psychologist who said during the trial that black people were more likely to commit violence. Buck's appeal of his pending execution was rejected last week. Although the inmate's supporters pleaded with Harris County District Attorney Patricia Lykos, she told The Chronicle she has not yet made a decision.

"Before we take any action, we will carefully evaluate the arguments of Mr. Buck's lawyers and his supporters," she told the news source. "He will receive fair and thorough consideration of his claims."

Lise Olsen's enterprise reporting in the Houston Chronicle was noted yesterday.  Also, University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

Earlier coverage of Duane Buck's case begins at the link.

The Florida Symposium

"Legal experts focus on Florida's death penalty," is the AP report on yesterday's symposium.  It's by Bill Kaczor, via Florida Today.  A slightly different version is available from the St. Augustine Record.  Here's an extended excerpt:

A panel that included legal experts, academics and lawmakers on Monday renewed a push for changes to try to make Florida’s death penalty more just and prevent innocent people from being executed.

Participants’ views about their chances of success ranged from hopeful to despairing in a state that leads the nation with 23 death row inmates who have been exonerated.

“It seems to be a problem that may not be able to be solved,” said former State Attorney Harry Shorstein of Jacksonville. “What the public doesn’t understand is how expensive this litigation has been over the years.”

Shorstein, who participated by telephone, supports the death penalty but said he’s troubled with the lack of movement toward fixing its problems.

Florida State University’s law school sponsored the forum to mark the fifth anniversary of an American Bar Association study that criticized the state’s death penalty procedures and made a number of recommendations.

One was that juries be unanimous in recommending death sentences. Florida is the only death penalty state that lets juries make sentencing decisions or recommendations by a simple majority. Florida judges have the final say but must give great weight to jury recommendations.

State Sen. Thad Altman for a second year is sponsoring a bill (SB 772) that would require unanimous findings of aggravating factors as well as death sentence recommendations. His legislation failed without so much as a committee hearing earlier this year.

“I’m hoping ... we can at least get a hearing,” the Viera Republican told other panel members. “I don’t think that’s asking too much.”

The panel’s moderator, Mark Schlakman, senior program director at Florida State’s Center for the Advancement of Human Rights, was more optimistic.

Schlakman noted the new bill would apply only to crimes committed after Oct. 1, 2012. Prosecutors had been worried about it being retroactive to existing cases.

Also, since the last legislative session, U.S. District Judge Jose E. Martinez in Miami has ruled Florida’s death sentence law is unconstitutional because jury recommendations don’t have to be unanimous. The state is appealing. “Irrespective of where the appeal goes, it underscores the concern about that process,” Schlakman said in an interview.

Some lawmakers have opposed changes because they were afraid that might result in more appeals. Martinez’ ruling shows the opposite may be the case, Schlakman said.

In a prerecorded video presentation, former Florida Supreme Court Justice Raoul Cantero said the high court as long ago as 2005 had urged unanimous jury recommendations.

The Florida News Service posts, "Symposium Advocates Unanimous Jury Verdicts in Death Penalty Cases," by Mike Vasilinda.

Meeting in the shadow of the state capitol, judges, lawyers, prosecutors and others debated how the death penalty is imposed.

“It’s the least that we can ask, that before we give the ultimate sentence to someone, that we require a unanimous verdict,” Sen. Thad Altman (R-Brevard) said.

At 24, Florida leads the nation in death row exonerations. Faulty eyewitness testimony is often the blame.

“The mind is not like a tape recorder,” Mike Minerva with the Innocence Project said. “It does not retain whatever images the person thought that they had

The experts say one of the biggest determinants of who gets death is simply which county your tried in.

Judge O.H. Eaton is a retired circuit judge from Seminole County with doubts.  For 15 years he has taught a required class for judges that qualifies them for murder cases.

“That whether a person lives or dies has more to do with the judicial assignment than the facts of the case,” Eaton said. “Now, if that doesn’t show you that we’ve got a broken system, I don’t know what does.”

Yesterday's preview begins coverage from Florida; coverage of the Florida ABA Assessment is also available.  A 2009 symposium at the FSU law school also examined issues raised in the ABA review.

Harris Death Penalties Show Racial Pattern

That's the title of Lise Olsen's report in today's Houston Chronicle.  It's subtitled, "12 of the last 13 men condemned in the county have been black."

The last white man to join death row from Harris County was a convicted serial killer in 2004. Since then, 12 of the last 13 men newly condemned to die have been black, a Houston Chronicle analysis of prison and prosecution records shows.

The latest death sentence was handed down in October to a Hispanic.

The role of race in capital punishment has emerged repeatedly this year in the unsuccessful appeals by Duane Buck, an African-American from Houston convicted in a double murder. His 1997 sentencing featured testimony from a former prison psychiatrist who claimed blacks are more dangerous than whites.

Harris County District Attorney Patricia Lykos, elected as a reformer, has overseen decisions about whether to seek the death penalty since 2009. Her staff says the decisions are "race neutral" and "fact based."

"Whether to seek the death penalty in a capital murder case is the most solemn and profound decision that I must make," Lykos told the Chronicle. "It is agonizing and gut-wrenching."

As part of its review of the last seven years of death sentences, the Chronicle also examined capital cases first prosecuted in the 1980s and 1990s that were reviewed again after successful death row appeals. Since November 2004, five men have been re-sentenced to death - three white, one black and one Hispanic.

Robert Morrow, one of the county's busiest capital defense attorneys, called the string of consecutive African-Americans who received new death sentences from 2004-2011 startling. He said those numbers alone should prompt additional research and debate - especially since relatively few participate in the local decision-making process as jurors or as prosecutors.

"The more the defendant looks like you the harder it is to kill him - human nature being what it is," Morrow said. "It's something we have to be thinking about. It's an issue we never should get too far out of the front of our consciousness."

And:

Harris County has a long history of aggressive prosecution of capital cases.

More than a third of the state's current 305 death row inmates came from Harris County. So did half of the 121 black inmates on death row, according to Texas Department of Criminal Justice data.

Blacks account for about half of recent murder arrests in Harris County. But they more often get charged with capital murder than whites or Hispanics, an analysis of more than 300 recent court cases by the Chronicle shows.

Related posts are in the race and geographic disparity indexes.  University of Denver scholar Scott Phillips conducted a detailed examination of the role of race in Harris County death sentences.  Earlier coverage of his scholarship begins at the link.

More on Duane Buck's case at the link.

The Week Looks at the Death Penalty

The weekly magazine's current in-deptah briefing is, "The death penalty in decline."

How many countries have the death penalty?
Capital punishment laws are on the books in 91 countries, but only 23 of them carried out any executions last year. The U.S. executed 46 people last year, and 37 so far this year — more than any other country, except for the dictatorships of China, North Korea, Iran, and Yemen. In most parts of the modern world, the practice appears to be in steep decline. Since 1976, a total of 123 countries have effectively abolished the death penalty as a barbaric legacy of the past. All signs point to an unmistakable downward trend, says Mario Marazziti, co-founder of the World Coalition Against the Death Penalty. "There is worldwide growth of a new moral standard of decency and of respect for human rights," he said, "even the rights and lives of those who may have committed severe crimes."

Is that trend likely to extend to the U.S.?
It already has, in parts of the country. Illinois scrapped the death penalty in March of this year, and New Jersey did so in 2007. Lawmakers in California, Connecticut, Florida, Ohio, and Maryland introduced legislation this year to abolish the death penalty in those states. A recent Gallup poll found that the U.S. public's approval of the death penalty had dropped by 19 percentage points over the past 17 years, and currently stands at 61 percent, the lowest level since 1972. And although 34 states retain capital punishment laws, only 11 states executed prisoners last year, down from 20 in 1999. In effect, the death penalty has become a regional practice: Texas, Oklahoma, and Virginia alone account for more than half of U.S.

And:

A warden's change of heart
Three times in his 22-year career in Florida's corrections system, warden Ron McAndrew presided over an execution in the electric chair. Each time, his private doubts grew. During the third execution he witnessed, the condemned prisoner's head burst into flames, and McAndrew had to give the order to continue. "This is wrong," he decided. McAndrew, now a prison consultant, joined a small group of ex-wardens turned death penalty abolitionists, including Jeanne Woodford of San Quentin in California and Donald Cabana of Parchman Penitentiary in Mississippi. These wardens say that participating in the planned, cold-blooded killing of human beings has haunted them, and that it inflicts lasting trauma on corrections officers. "Many colleagues turned to drugs and alcohol from the pain of knowing a man died at their hands,'' McAndrew said. "The state dishonors us by putting us in this situation. This is premeditated, carefully thought-out ceremonial killing." He advocates "an alternative that doesn't lower us to the level of the killer: permanent imprisonment.''

Coverage of the statement on capital punishment by former wardens is at the link; Ron McAndrew has spoken of the trauma prison staff suffer.

Use of Federal Death Penalty in Western District of New York

"William Hochul puts death penalty to frequent test," is the Buffalo News report by Dan Herbeck.

It's hard to find a federal prosecutor anywhere in the nation who has filed as many potential death penalty cases as William J. Hochul Jr., the U.S. attorney for Western New York.

So far, none of those cases has led to an execution.

But they have cost taxpayers a bundle of money -- more than $661,000 in the past year.

Since taking office in March 2010, Hochul has filed potential death penalty cases against 24 people. That's more than those filed by federal prosecutors in Los Angeles, Chicago, Detroit, Miami or any city in Texas.

In fact, among the 94 federal prosecutors throughout the land, only two others -- both from New York City-area districts far more populous than Western New York -- have filed as many potential death penalty cases with Washington as Hochul in the past two years.

So far, Washington has not approved any of Hochul's cases for a death penalty prosecution, though a dozen decisions are pending before the U.S. attorney general. But it often takes months from the time a U.S. attorney files a potential death penalty case until the attorney general decides whether to pursue the death penalty. As a result, the Buffalo and Rochester federal courts where Hochul files cases spent more than $661,000 during his first full year in office on lawyers and other defense costs for defendants in the early stages of death penalty-eligible cases.

The $661,000 is more than the combined amount spent by the region's four previous U.S. attorneys on death penalty-eligible cases over the previous 11 years. During those 11 years, a total of 12 death penalty-eligible cases were filed. Hochul has filed twice that many in less than two years.

"The numbers in Buffalo are not part of a national trend. It does not appear to be something that is coming out of Washington. It's something that Mr. Hochul does far more often than almost any other federal prosecutor," said James P. Harrington, one of a handful of Buffalo defense lawyers who are certified to handle death penalty-eligible cases.

And:

Nationally, the Justice Department has authorized about 500 death penalty prosecutions -- only one in Western New York -- since Congress reinstated federal capital punishment in 1988. And since 1988, only three men in the nation have been federally executed. There have been no federal executions in more than eight years.

Also:

Though hundreds of millions of dollars have been spent on such cases since Jones was put to death, no one has been executed under the federal death penalty since. At least 66 federal defendants have been sentenced to death since 1988, but their executions have been held off by legal appeals.

According to court statistics, federal death penalty prosecutions can cost up to eight times as much as a non-death penalty prosecution.

Death penalty experts estimate the Justice Department and the courts spend at least $86 million a year on federal death penalty cases. They can only estimate because the Justice Department declines to say how much of its $28 billion annual budget goes toward death penalty prosecutions.

Related posts are in the federal death penalty and geographic disparity index.

The Death Penalty’s De Facto Abolition

That's the title of an editorial from the Saturday edition of the New York Times.

A new Gallup poll reports that support for the death penalty is at its lowest level since 1972. In fact, though, the decline, from a high of 80 percent in 1994 to 61 percent now, masks both Americans’ ambivalence about capital punishment and the country’s de facto abolition of the penalty in most places.

When Gallup gave people a choice a year ago between sentencing a murderer to death or life without parole, an option in each of the 34 states that have the death penalty, only 49 percent chose capital punishment.

That striking difference suggests that more Americans are recognizing that killing a prisoner is not the only way to make sure he is never released, that the death penalty cannot be made to comply with the Constitution and that it is in every way indefensible. But there are other numbers that tell a more compelling story about the national discomfort with executions.

And:

Only one-seventh of the nation’s 3,147 counties have carried out an execution since 1976. Counties with one-eighth of the American population produce two-thirds of the sentences. As a result, the death penalty is the embodiment of arbitrariness. Texas, for example, in the past generation, has executed five times as many people as Virginia, the next closest state. But the penalty is used heavily in just four of Texas’s 254 counties.

Opposition to capital punishment has built from the ground up. It is evident in the greater part of America’s counties where people realize that, in addition to being barbaric, capricious and prohibitively expensive, the death penalty does not reflect their values.

Coverage of the latest Gallup poll results is at the link.

Pat Lykos: Texas' Capital Punishment Avenger

That's the title of Ben Crair's profile at Daily Beast.

Change was the message of the 2008 election, but you wouldn't have expected it from Pat Lykos, Houston's chain-smoking, Cadillac-driving Republican district attorney. She was elected three years ago to the office once run by Johnny B. Holmes—the deadliest prosecutor in modern U.S. history. "I say without apology that if you murder someone here, the state of Texas is going to kill you," Holmes once said. His handlebar mustache showed he wasn't kidding.

Between 1979 and 2000, Holmes built Harris County, Texas, into the execution capital of the nation. Since the Supreme Court reinstated capital punishment in 1976, Harris County has sent more prisoners to the death chamber than any state in the country. Holmes was just as ruthless with lesser criminals, once seeking a life sentence for a substitute teacher who sold a joint to a student. "Harris County was the standard bearer of everything bad in criminal justice for a long time," says Jeff Blackburn of the Innocence Project of Texas.

And yet, with Lykos at the helm, the office has undergone an astonishing turnaround. The Harris County D.A.'s office won the Innocence Project of Texas' “Honesty and Integrity in Prosecution Award” last fall. Under Lykos, the county "is becoming the single most powerful example of how to change this system and make it work right," Blackburn says. Lykos isn't just sending fewer people to death row; she's using her prosecutorial power to set the innocent free.

"It's a triple tragedy," says Lykos, who has recommended three exonerations so far—the latest just last month. "You have someone who's wrongfully convicted; there's no justice for the victim or for society; and thirdly the actual predator is free to continue his or her deprivations."

The exonerations are the result of Lykos' post-conviction review unit, which is investigating hundreds of prisoners' innocence claims. The unit is the second of its kind in Texas after Dallas County, where District Attorney Craig Watkins has exonerated 10 prisoners since 2007. (Lykos has not matched Watkins' total in large part because the Houston Police Department Crime Lab was so bad; Dallas' independent crime lab preserved old evidence while the HPD often neglected or threw it away.) What distinguishes Lykos is her politics. While Watkins is a Democrat, Lykos is a self-described "Goldwater-Reagan Republican" who became Harris County's first female criminal court judge in 1980, when the rest of the bench was Democratic.

And:

Despite her surly streak—which persists to this day, according to former prosecutors—Lykos' work as a judge may have disposed her to take a more balanced approach to defendants' rights than had career prosecutors like Holmes: After all, she had to consider both sides of every trial. "She is actually willing to listen to people whose viewpoints differ from hers, and for people who have been doing this kind of work in Harris County for a long time, that is something that has been missing from that office," says defense lawyer David Dow, founder of the Texas Innocence Network.

Related posts are in the prosecution index.

The Latest News From Illinois

Today's Chicago Sun-Times carries the OpEd, "The case against capital punishment."  It's by Thomas R. Sullivan, Chairman of Illinois Capital Punishment Reform Study Commission.  He's a former U.S. Attorney for the Northern District of Illinois.

During the past 10, much of my time and energy has been devoted to studying our capital punishment system.

As co-chairman of the Governor’s Commission on Capital Punishment (2000-2002), I participated in heart-rending interviews of family members of murder victims and heard moving statements by men who were convicted, sentenced to death and imprisoned for murders they did not commit.

As chairman of the General Assembly’s Capital Punishment Reform Study Committee from 2003 to 2010, I participated in four public hearings, during which we heard the views of many of our citizens about the death penalty. We spoke at length with police and sheriff personnel, prosecutors, defense lawyers and judges. Members of both groups had great sympathy for those who lost a family member as a result of a murder. We sympathized with the men (and their family members) who had been wrongfully convicted of murders and who spent years behind bars.

As a result of these experiences, I have come to the firm conclusion that the death penalty system is extremely expensive, does not deter crime or serve any valid purpose and cannot be reformed to prevent more mistaken death sentences.

And:

So far as I am able to determine, there is no real evidence to support the theory that capital punishment deters crime. Consider this: Following a moratorium on executions in 2000 — and the commutation of more than 160 death sentences to life without parole in 2003 — the Illinois murder rate has declined. Does it follow that commuting death sentences and prohibiting executions deters murder?

An ever-growing number of states do not have the death penalty. No member of the European Union may have it. We can do just fine without capital punishment.

The death penalty diverts our attention and money from the real problems in our society that lead to crime, for example, poverty, unemployment, housing, education and health issues. The Reform Committee recommended that part of the money now spent on capital cases be made available to the families of crime victims. Rather than spending millions to support state killings, would it not be wiser to use the funds to assist crime victims?

The General Assembly was wise and courageous to pass legislation abolishing the death penalty. I respectfully urge Gov. Quinn to sign it.

The Belleville News-Democrat reports, "Death penalty advocates, foes waiting on Quinn: 'Why ... keep an evil person here?'"  It's by Beth Hundsdorfer.

First, there were the reforms, then a blanket commutation of all death row inmates by former Gov. George Ryan who then imposed a moratorium on executions that has stayed in place since 2000.

Earlier this month, Illinois lawmakers did something even proponents of the death penalty and reformers didn't expect. They passed a bill abolishing the death penalty. The bill is on Gov. Pat Quinn's desk awaiting his signature.

Advocates on both sides of the issue are encouraging phone calls and letters to the governor to sway his decision, but the pen still remains on Quinn's desk. Quinn has said he will "follow my conscience" on the issue.

Earlier coverage from Illinois begins at the link.

Additional Coverage of Justice Pfeifer's Call for Ohio Repeal

"Ohio Supreme Court Justice Paul Pfeifer wants to scrap the death penalty," is the title of Reginald Fields' report for today's Cleveland Plain Dealer.

Ohio Supreme Court Justice Paul Pfeifer, who helped write the state's death penalty law, now wants Gov. John Kasich to end capital punishment in Ohio.

But a spokesman for the governor said Kasich will continue to support the death penalty.

Pfeifer, a Republican, was a state senator and chairman of the Senate's Judiciary Committee in 1981 when the death penalty became the law.

But safeguards lawmakers put in place to prevent inequities have not worked, said Pfeifer, citing racial and geographical disparities in how the penalty has been administered. Pfeifer called the use of capital punishment a "lottery."

"It has bothered me from the beginning," Pfeifer, who won a new term in November, told reporters on Wednesday. He made his initial comments about the death penalty on Tuesday during his swearing-in ceremony at the court.

"To my surprise, the next thing I know I'm at the Supreme Court having to deal with these cases where people are sentenced to death under a statute I was very involved in writing," he said.

Pfeifer said an option for life in prison without parole was wrongly excluded from the earlier legislation. He said justices have never used the discretion the law gives them to look beyond legal arguments and use their own common sense to determine whether a person should be on death row.

With 157 people on Ohio's death row and the state executing people at rapid clip, the justice said it's too late to fix the system.

"I think the best answer is for the governor to just commute them all and that we do what Illinois has done and say we don't need the death penalty in Ohio any longer," Pfeifer said.

Alan Johnson writes, "Pfeifer: Revise constitution, end death penalty," for the Columbus Dispatch.

The Ohio Constitution is "a mess," clogged with casinos and livestock standards, and should be streamlined and revised, Ohio Supreme Court Justice Paul E. Pfeifer said yesterday.

Pfeifer, a maverick Republican who began his 19th year on the court this week, also said the death penalty should be abolished in Ohio and laws should be passed requiring more transparency in campaign finance.

And:

Pfeifer, the senior justice on the Supreme Court, also reiterated remarks he made Tuesday at his swearing-in ceremony in which he urged fellow Republican Gov. John Kasich to commute all death sentences to life without the possibility of parole.

Pfeifer, who as a state senator was a co-author of Ohio's 1981 capital-punishment law, said he now feels it should be abolished, primarily because it's being used for cases for which it was never intended.

"I think the time's right on this one. Politically it's right. ...You have Republicans in every direction. ... With that political configuration, it would be the most opportune time to seriously debate and discuss whether or not we have the death penalty."

Pfeifer said he will talk to both the governor and legislative leaders about his position.

Kasich faces the first execution on his watch Feb.17, when Frank Spisak of Cuyahoga County is scheduled to die by lethal injection.

Asked about the governor's response to Pfeifer's comments, Kasich spokesman Rob Nichols said, "Gov. Kasich supports capital punishment." He declined to elaborate.

The Ravenna Record-Courier has, "Ohio justice: It's time to abolish death penalty," by Marc Kovac.

Is it time for Ohio to consider abolishing the death penalty?

Ohio Supreme Court Justice Paul E. Pfeifer thinks so, telling an audience in Columbus Tuesday that the existing state law on capital punishment makes it “exceedingly difficult for this statute to be administered in a fair and just way.”

He added, “Gov. [John] Kasich and the governors after him, I believe, need to consider commuting all of those sentences to life in prison without the possibility of parole, and I think it’s time for Ohio to at least entertain the discussion of whether or not we are well served by having a death penalty.”

Pfeifer made the comments Tuesday, after he and fellow Justice Judith Ann Lanzinger took their ceremonial oaths of office. Both won new terms to the state’s high court in November.

Pfeifer said most of the 157 people currently serving on Death Row were sentenced prior to a law change that allows judges to issue sentences of life in prison without the possibility of parole.

And since the latter, few death penalties have been handed down.

He cited Illinois as a recent example of a state where lawmakers have moved to end capital punishment. Ohio lawmakers should consider doing the same.

And:

He added, “I encourage all in the Legislature, all who have a responsibility on this, to entertain a thoughtful discussion and to look at the question in a serious way. I think the time has come for us to make that change.”

Earlier coverage of Justice Pfeifer' call for repeal is at the link.

Von Drehle on the DPIC Report

I want to single out David Von Drehle's post on the DPIC report for Time, "Death Penalty Use and Support Near Record Lows, Report Finds."

Perhaps no statistic better illustrates the decline in the use of the death penalty than the fact that no death sentences — zero — were imposed by Virginia's courts in 2010. The commonwealth is a bastion of capital punishment, second only to Texas in the frequency of executions. Missouri, which ranks fifth in the number of executions in the modern era, also sent no new inmates to death row.

Experts offer a number of explanations for the diminished use of the death penalty in the United States. DPIC's annual report, published on Tuesday, (see www.deathpenaltyinfo.org), points to at least four factors:

And, an additional excerpt from the fourth factor:

Uneven, and unpredictable, application: The use of the death penalty varies widely by region. Three out of four executions in 2010 took place in the South. California once again led the nation in new death sentences — and once again went all year without a single execution. At year's end, the death row population in the Golden State hovered around 700. Florida, with some 400 inmates on death row, carried out just one execution in 2010. Pennsylvania, with some 220 death row inmates, executed none.

Nationwide, according to DPIC, some 3,260 prisoners were sentenced to die as the year came to a close. Hundreds have been on death row more than 25 years. The average time spent on death row by the 46 inmates executed in 2010 was 14 years.

One other factor may do more than any of the rest to explain the declining hold of capital punishment on the American justice system: The steep decline in violent crime. Preliminary statistics from the FBI indicate that the murder rate for the first half of 2010 once again fell sharply, dropping by more than 7%.

If, as the DPIC annual report suggests, Americans are more willing to consider alternatives to capital punishment, the fact that they are undeniably safer may be the best explanation of all.

Coverage begins with the post "News Coverage of the DPIC Report,"  The DPIC report is, DPIC has issued The Death Penalty in 2010: A Year End Report.

More from Von Drehle at the post, "Debate Over Capital Punishment."  He's also the author of Among the Lowest of the Dead: The Culture of Capital Punishment.

Opinion Roundup

In Illinois, the Rockford Register Star carries the editorial, "Our View: Accept no substitute, abolish death penalty in Illinois," today.

Illinois legislators will be busy during the veto session. It is hard to believe there could be anything more important than the state’s $13 billion deficit and the worst-funded pension liability in the nation.

But neither one of those issues should weigh as heavily on legislators as the knowledge Illinois has wrongly sentenced men to death.

The Illinois Coalition to Abolish the Death Penalty is right: We must go further than extending the moratorium on the death penalty in Illinois. We must abolish capital punishment in our state, now and forever.

Former Gov. George Ryan made Illinois the first death penalty state to suspend executions. He did so because he saw the moral and legal indictment in these numbers: Between 1977 and 2000, the state executed 12 people. During the same period, 13 inmates were released because of wrongful convictions.

Reforms have been enacted since the moratorium started. Advocates for the death penalty say the additional protections make remote the chances an innocent person will be convicted.

Oh yeah? Then why does the Illinois State Bar Association — which should have the highest confidence in lawyers — want to abolish the death penalty, too?

And:

According to a report released last week by the Illinois Capital Punishment Reform Study Committee, state taxpayers have spent $100 million since 2003 to defend and prosecute death penalty cases.

Ensuring life sentences is a better use of our money. Execution in Illinois will never meet the standards of fairness and morality, much less accuracy. Tell your state legislator.

The Illinois General Assembly will be meeting in a veto session that lasts 6 days -- November 16 - 18, and November 30 - December 2.

James Clark posts, "LA County: America's Capital Punishment Capital," at California Progress Report.  He's the Death Penalty Field Organizer for the ACLU of Southern California.

In striking down America’s death penalty in 1972, U.S. Supreme Court Justice Potter Stewart famously compared capital punishment to being struck by lightning, arguing that death sentences were given to “a capriciously selected random handful.” For Californians, though, a better metaphor might be an earthquake.

The danger of earthquake, after all, is based on one's proximity to the fault line; death sentences likewise are determined by something as capricious and random as location. And the San Andreas, it turns out, is a fault line for more than just earthquakes: it’s also home to America’s surprising new death penalty capital, Los Angeles County.

LA County condemned 13 people to death in 2009. That’s not only more than any other county in the nation, it’s more than any state in the nation – even capital punishment heavyweights like Texas, Florida and Virginia. The problem isn’t limited to LA County either, as SoCal neighbors Orange and Riverside counties also have aggressive death penalty records, leading the ACLU to dub the three California’s “killer counties.” Bible Belt eat your heart out, the Sun Belt’s a scorcher.

Second Class Justice recently published a set of maps, posted below, that dramatically illustrate the geographic disparity in the death penalty and demonstrate that sentencing records like LA County’s are far outside the mainstream. In fact, just a small handful of counties use the death penalty at all – only 10 percent of American counties have issued a single death sentence in the last six years, and they’re almost exclusively from the South and Southern California.

California mirrors the rest of the nation, with the majority of California counties avoiding the death penalty altogether but a few rogue counties skewing the statewide statistics. According to the ACLU of Northern California’s report, Death in Decline ’09, death sentences have been steadily declining around the state and nation, except in a few counties like Orange, Riverside and most of all Los Angeles, where increasingly aggressive prosecutors are bucking the state and national trend.

At Open Salon, Margaret Summers posts, "Dr. Mario Obledo: A Leader in Death Penalty Abolition." 

This Veterans Day week, I’ve been remembering my first impressions of civil rights leader, death penalty abolitionist, and Korean War veteran, Dr. Mario Guerra Obledo. He was courtly. Reserved. Quiet. Polite. Respectful. I don’t remember his exact height, but to me he stood far above everyone around him.

One of 12 children born to Mexican immigrants in San Antonio, Texas, Dr. Obledo enlisted in the Navy in 1951, serving on a ship in radar technology. After the war, Dr. Obledo went back to his home state. He earned his undergraduate degree in pharmacy from the University of Texas in Austin, and later, his law degree from St. Mary’s University in San Antonio.

Like many veterans of color, Dr. Obledo returned from fighting a war for democracy and freedom in another country to find that such rights and freedoms were not always upheld for people of color in the United States. Pete Tijerina, another Latino war veteran, returned from combat with an idea to start a civil rights organization in support of Latinos. He met Dr. Obledo at a social function. With help from a $2.2 million dollar Ford Foundation grant and assistance from the NAACP Legal Defense and Educational Fund, the two veterans founded MALDEF, the Mexican American Legal Defense and Educational Fund. MALDEF launched Dr. Obledo’s civil rights activism. 

And:

In 2006, Dr. Obledo served on the advisory board of the American Bar Association Death Penalty Moratorium Implementation Project, which examined whether the death penalty was administered fairly and with due process. To the extent flaws were identified in states’ death penalty systems, states could use the Project’s findings in reforming their systems, impose moratoriums, and/or launch more comprehensive self-examinations of death penalty-related laws and processes. The Project examined death penalty systems in Alabama, Arizona, Florida, Georgia, Indiana, Ohio, Pennsylvania, and Tennessee.

While on the advisory board, Dr. Obledo illustrated how racial and economic disparities in the application of death sentences stem from years of racial and economic discrimination. “I think they should do away with the death penalty,” he said. “Most people convicted are minorities. People of color, or minorities. Only the poor people get executed. The people with money never get executed. That’s why the system should be changed. You would make sure no injustice would occur.”

And:

Dr. Obledo’s contributions to death penalty abolition and civil rights were many.  Dr. Obledo died suddenly this August after a heart attack at age 78. While others undoubtedly remember and laud Dr. Obledo for his civil rights activism in LULAC, MALDEF and the National Coalition of Hispanic Organizations, I will always remember, and appreciate, his having devoted a portion of his busy life trying to end the barbaric, racially and economically biased and ineffective crime-fighting tool that is capital punishment.

Earlier posts from James Clark and by Margaret Summers at the links; related posts in the editorial and blog blawg indexes

Arbitrary as Ever (II)

That's the title of Rob Smith's new post at Second Class Justice, and it includes new mapping of death sentences imposed since 1976.

The chief complaint in Furman centered on the inability to distinguish between those who received a death sentence and those who were eligible but did not. The distribution of executions since the death penalty resumed in the 1976 speaks loudly to the continuing lack of any rational connection between those who commit murder who are  then sentenced to death and executed from those who commit murder but are never executed.

A database of every execution since 1976 (paper here), compiled by Frank Baumgartner, a political science professor at the University of North Carolina-Chapel Hill, demonstrates that even among the handful of counties in the United States with active death penalties, few counties have sentenced anyone to death who has been executed.  85%  of the counties in the United States have not executed anyone since 1976.  Only 454 counties (14 percent) have ever carried out an execution since 1976.  Indeed, only 50 counties (1.6 percent of the total) have executed more than 5 individuals in the entire modern period of capital punishment, a rate that works out to just one per seven years. Five counties are responsible for a disproportionate majority of executions.  Four of these five counties are in Texas.

The earlier maps were noted in the post, "Where the Death Penalty Is Imposed - A Remarkable Graphic.

More Death Penalty Maps

This, from University of North Carolina Political Science prof Frank Baumgartner:

I've compiled a geo-coded database of every execution since 1976? Slides 17-19 on this slide show give some overview of the data.

He is co-author of The Decline of the Death Penalty and the Discovery of Innocence.  More on the book, here.  You can order it from Amazon.

Still more from Baumgartner, here.

Where the Death Penalty Is Imposed - A Remarkable Graphic

If you haven't been watching Second Class Justice, take a look.  In the short time it has been up, there is first-class content.

I particularly want to highlight the post, "90% of counties in the country have imposed no death sentences for the last 6 years," by Rob Smith.  The graphic is remarkable.  It's a must-see and a must-read:

Death Penalty Usage Maps 2004-2009

Here's a snippet from the post.

The maps above detail each death sentence issued in a state prosecution between 2004-2009. One of the maps details all federal death sentences since the modern death penalty was established in 1988. These figures include re-sentences to death (after a person’s first sentence was reversed by an appellate court), so, if anything, these maps are overly generous to those who believe that American juries (as opposed to a small handful of jurisdictions) regularly sentence to death people who commit first-degree murder.

The maps show that roughly 90% of counties in the United States did not sentence anyone to death between 2004-2009 (the number is closer to 95% between 2007-2009). Even within states that heavily rely upon the death penalty, places like Texas, Alabama, Florida, California, and Oklahoma, the majority of counties in these states do not use the death penalty. Instead, a narrow band of counties (e.g., Los Angeles, Maricopa) account for a disproportionate number of death sentences year after year. Nothing distinguishes the murders (or murderers) in the counties that impose death sentences from those in the heavy majority of American counties that do not.

Earlier coverage of Stephen Bright's new blog, Second Class Justice, is here.

That's the title of an OpEd in today's Richmond Times-Dispatch written by two noted conservatives, Richard  Viguerie and Brent Bozell.  LINK

We lifelong conservatives and Tea Party supporters recently urged the death sentence for Teresa Lewis in Virginia be commuted to life in prison without parole instead.

We are among a growing number of conservatives who have questions and reservations about the death penalty, believe it is no longer a necessary form of punishment based on either Lockean or biblical principles, or oppose it outright.

Around the country death sentences are dropping, and support for the death penalty is waning. This trend is not limited to bleeding-heart liberals and criminal coddlers.

We urge our fellow conservatives to at least consider some issues when contemplating the death penalty.

The Old Testament required the death penalty for certain sins and a litany of offenses. In John 8 of the New Testament, the Pharisees confronted Jesus about a woman ready to be stoned for adultery. Jesus, sensing a trap they laid on a conflict between the Old Testament and Roman law, said: Let him who is without sin cast the first stone.

We believe John 8 of the New Testament shows that Jesus did not consider the death penalty mandatory punishment for sins, and certainly not unless the process complied with God's law. Deuteronomy 17:6 requires more than one witness to convict.

We also believe conservative Lockean principles do not compel the death penalty.

John Locke's Second Treatise on Government offers a justification of the State's taking the life of someone who is guilty of a heinous crime. Locke, on whose principles conservatism is built, believed the death penalty was a justifiable punishment for two reasons: protecting society (self-preservation) and deterrence.

And:

We now, however, have maximum security prisons that were incapable of being built in Locke's time. Society may protect itself without putting a human to death as it would a wild animal. Since we believe each person has a soul, and is capable of achieving salvation, life in prison is now an alternative to the death penalty.

Under Locke's other reason, deterrence, punishment should be severe enough to discourage criminal acts. We certainly agree. However, some data show the death penalty does not act as deterrence.

In fact, the data seem to indicate murder and other heinous crimes may be lower in jurisdictions that do not have the death penalty. That's not proof, of course, but we believe death penalty proponents bear the burden of proof that the ultimate punishment is in fact a deterrence.

From our conservative perspective, there are other reasons we oppose the death penalty. It is an expensive government program with the power to kill people. Conservatives don't trust the government is always capable, competent, or fair with far lighter tasks.

In a news article by Frank Green and Reed Williams, the Times-Dispatch reports, "Many factors figure in death-penalty cases."

A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept.

Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.

The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty.

Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.

From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role.

And:

Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.

In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999.

In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.

Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not.

"But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said.

"I'm not sure that makes it unconstitutional, but it adds one more, if you like, arbitrary element to the mix -- the same taking of life in two different places but quite disparate decisions."

The quote above is from A.E. Dick Howard, a University of Virginia law professor and constitutional scholar.

 

Today's Wall Street Journal reports, "Death Penalty Goes on Trial in North Carolina," by Nathan Koppel.

Kenneth Bernard Rouse was sentenced to death after a jury found him guilty in 1992 of fatally stabbing 63-year-old Hazel Colleen Broadway. Police found her body in a North Carolina convenience store, the knife still in her neck.

Nearly two decades later, Mr. Rouse, now 47, sits on North Carolina's death row, after filing unsuccessful appeals.

But a new, controversial state law might change that. Last year, North Carolina enacted what's known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a "significant factor" in the death sentence.

About 95% of the state's death-row population, or 152 inmates including Mr. Rouse, filed bias claims by the August deadline, according to the North Carolina attorney general's office. The law also allows future capital-murder defendants to claim racial bias. Convicts whose petitions were successful would instead face life sentences, with no chance of parole.

North Carolina's new law is among the most hotly debated responses to recent criticism of the death penalty. Many states have rethought the sentence amid new genetic evidence that has freed some inmates.

Maryland has suspended its use of the death penalty while it reviews whether lethal injection causes undue pain; Texas last year passed a law to improve legal representation in death-penalty appeals. New Jersey and New Mexico in recent years abolished the death penalty.

But North Carolina has undertaken the most far-reaching effort to date to examine the amorphous question of whether race played an improper role in decisions to seek or impose death sentences.

It likely will be several months before any of the claims are considered by the courts, attorneys said.

And:

Of particular concern to prosecutors and other opponents is that the new law allows murder defendants to try to prove bias through broad statistical evidence, such as data showing that North Carolina prosecutors, on a county-wide or state-wide basis, have sought the death penalty more frequently against black defendants or in cases involving a white victim. "You shouldn't try a case on statistics," said Sarah Stevens, a North Carolina Republican legislator. "Statistics can be manipulated."

Mr. Rouse's bias petition cited two recent studies from the Michigan State University College of Law. One study found that in more than 1,500 cases between 1990 and 2009, North Carolina defendants of all races were more than twice as likely to be sentenced to death if at least one of their alleged victims was white.

Another study concluded that in the cases of the 159 people currently on death row in the state, prosecutors removed blacks from juries at more than twice the rate that they struck prospective nonblack jurors.

Most inmates filing bias claims have cited the Michigan State study, according to Gerda Stein, a spokeswoman for the Center for Death Penalty Litigation, which represents about 40 inmates who have filed claims.

Ashby Jones notes the article in the Journal Law blog post, "North Carolina Law Renews Hope for Death Row Inmates."

Death Row is typically a place for the despondent, the beaten, the worst-of-the-worst.

But in North Carolina, a recent law has given a dash of hope to nearly all Death Row inmates. Last year, North Carolina enacted what’s known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a “significant factor” in the death sentence.

Earlier coverage from North Carolina includes information on the RJA and the SBI crime lab scandal, at the links.  Related links are in the race index, including Pennsylvania's conisderation of similar legislation

 

That's the title of an editorial in today's Los Angeles Times.  It's subtitled, "L.A. County led the U.S. in capital sentences in 2009. Prosecutors are being overzealous and inhumane."

Harris County, Texas, used to be known as the death penalty capital of the United States, the focus of national and global outrage over an outdated, costly and immoral form of criminal justice. But things have changed: Harris County now has a sentencing record that looks like Denmark's, and the hanging judges (or rather, prosecutors) seem to have relocated to liberal Los Angeles.

A recent report by the American Civil Liberties Union shows that Los Angeles County sent more people to death row last year than any other county in the U.S. -- and more than the entire state of Texas. The trend is particularly odd given that most of the rest of the country is headed in the opposite direction. According to the Death Penalty Information Center, the number of death sentences nationwide last year was the lowest since capital punishment was reinstated in 1976.

A spokeswoman for the L.A. County District Attorney's Office says that 2009, when 13 felons were sentenced to death, was an anomaly because some capital cases took years to get to trial. Indeed, although the number of inmates sentenced to death annually was often in the double digits in the 1990s, there were only six in L.A. County in both 2008 and 2007. But that still doesn't fully explain why the office isn't following the lead of prosecutors in the rest of the U.S., who are pursuing fewer capital cases because in recent years some condemned inmates have been shown to be innocent and the economic costs of capital punishment are becoming harder to bear.

Los Angeles isn't the only killer county in California; death sentences were also up sharply in Orange and Riverside counties last year. The rest of the state, though, seems to be more in line with the national trend, according to the ACLU.

California hasn't killed an inmate in four years because of a legal battle over execution procedures, and its condemned population has soared above 700. That exceeds the capacity of San Quentin State Prison's death row, which is in need of a $395.5-million upgrade. Expenses related to the death penalty cost the state $137 million per year, according to the California Commission on the Fair Administration of Justice, at a time when Sacramento is trying to cope with a $20-billion budget deficit.

Speaking of Harris County, Houston ABC affiliate KTRK-TV posts, "Harris Co. not sending as many killers to death row."  It's by Ted Oberg.

Harris County used to have a reputation as a fast track to death row. Just a few years ago, juries here sent an average of eight people to death row every year. It's down to two now and the last man convicted for killing a Houston police officer isn't one of them. He instead is serving life in prison.

And:

Since that verdict in May 2008, 99 people were convicted for new capital murders in Harris County, but not a single one of them has received the death penalty here.

Harris County used to send the most people to death row in Texas, but not anymore. In the last two years, Harris County juries sent just two killers to Texas' death row. The same number as two other counties, Cameron and El Paso, but less than both Tarrant (three) and Dallas counties (four).

"We had a terrible reputation," said Kathyrn Kase of the Texas Defenders Service where she defends people charged with capital murder. 

A 2005 change in Texas law explains most of the change. Now juries can sentence a killer to life in prison without the chance of parole, and jurors can be certain convicted killers will die in prison without having to be executed. 

"It means that someone is going to prison and stay there," said Kase. 

However, there may be something else underway to explain the decrease - skepticism inside the jury box about the system and the potential for wrongful convictions.

"Jurors are more skeptical of evidence now. The Innocence Project's work and the crime lab scandals across the state have taken their toll," said Kase.

Before the change in law, Texas' death row got an average of 23 new inmates every year. Today that number is just 11. The yearly number of capital murders is virtually unchanged.

Earlier coverage of the ACLU of Northern California's report is here.  More on Harris County, death sentences, and sentencing here, here, here, and in the sentencing index.

The report is titled, Death in Decline '09; it's also available in Spanish.

A news release announcing the report is, "Death Penalty Sentencing In Decline Across U.S.  California, Los Angeles Fall Back in National Trend Toward Permanent Imprisonment."  An excerpt:

As the United States moves away from death sentences to permanent imprisonment, California—particularly Los Angeles County—lags behind, according to a new report on the death penalty by the ACLU of Northern California (ACLU-NC). In 2009, the number of new death sentences nationwide reached the lowest level since the death penalty was reinstated in 1976.  The Golden State, however, sent more people to death row last year than in the seven preceding years. At the close of 2009, California's death row was the largest and most costly in the United States.

"Nationwide, we are seeing a shift due to growing concerns about the wrongful conviction of innocent people and the high costs of the death penalty in comparison to permanent imprisonment," said Natasha Minsker, death penalty policy director for ACLU-NC. "States like Texas, which used to rival California in the number of new death sentences, have seen a dramatic reduction in use of the death penalty since permanent imprisonment became an option."

The increase in death sentences in California last year was caused by the high number of new death sentences in just three counties, according to the report. The majority of counties in California, like the rest of the nation, have effectively replaced the death penalty. Prosecutorial practices in just three "killer counties"—Los Angeles, Orange and Riverside—accounted for 83% of death sentences in 2009, while those counties represented only 41% of the state's population.

Los Angeles showed the most dramatic break from national trends, ranking as the top death penalty county in the United States. Los Angeles County sent more people to death row in 2009 than in any other year this decade—and more than the entire state of Texas for the same period.

The ACLU report also found a dramatic increase in the number of Latinos sentenced to death in California. The percentage of Latinos on death row has historically been well below the percentage of Latinos in the California population.

"We don't know what is driving this increase in the number of Latinos sentenced to death—unfortunately the state does not collect the data needed to answer this important question," said Ramona Ripston, executive director of the ACLU of Southern California. "What we do know is that all California communities would be better served if California opted for permanent imprisonment as a safe and cost-effective alternative to the death penalty."

The interactive map, noted above, shows the geographic disparity among California counties.  Thanks to Stefanie Faucher of Death Penalty Focus for distributing.

"Virginia's budget woes slow down capital case," is the title of Shawn Day's report.  It appeared in the Monday edition.

In the 18 months since he took the helm of the Richmond area capital defender’s office, David Baugh said he has seen about 10 capital cases end in pleas after prosecutors pulled the death penalty off the table. 

The result? Life in prison for the defendants and likely a  savings to Virginia’s taxpayers, who won’t have to foot the bill for defense fees associated with lengthy trials and years of appeals, Baugh said.

With a $3.5 billion budget shortfall, the state has to make some tough decisions on using manpower and money to prosecute the capital cases, he said. Three out of four state capital defender offices are understaffed. State officials already have frozen vacant positions. Now, Baugh said, the state should consider freezing capital punishment as the next cost-saving measure. 

“The state ought to give serious thought to a moratorium on the death penalty until the budget gets straight,”  Baugh said. “You’d be amazed how much the state pays.”

The state paid more than $1 million to cover the defense of  John Allen Muhammad, who was executed last month for one in a series of sniper shootings that terrorized Northern Virginia in 2002.

Other capital cases carry significant costs, although not nearly as high as the bills for Muhammad’s defense. For example, the state paid $150,472 to cover defense expenses for Carl Lee Walton, said Katya Herndon, spokeswoman for the state Supreme Court.

Walton, of Virginia Beach, shot and killed two women at point-blank range in 2005. His first trial, in 2007, ended in mistrial. He was convicted at a second trial in October, but rather than sentence him to death, a judge ordered he spend life in prison without the possibility of parole.

And:

Taxpayers are covering costs of 13 other active capital cases across Virginia. In October, Douglas Ramseur took the helm of the capital defender’s office for the state’s southeastern region. Since then, one attorney has retired from the Norfolk-based office and another announced plans to leave for a position in a private firm.

The departures leave Ramseur and one other attorney to handle four capital cases, including one in Virginia Beach. Although he has received a waiver allowing him to quickly fill one of those vacancies, Ramseur said it likely will be February or March before a new attorney is hired.

“That’s the challenge, finding people who want to take on death penalty cases,” he said. The cases are stressful and the pay is low compared to a position in a private firm, he said.

The turnover in the office was among the reasons a judge agreed to postpone Ted Vincent Carter’s capital murder trial, originally set for Jan. 26. Carter is accused of robbing and shooting a police detective who was trying to buy drugs during an undercover operation last year.

The Pilot also carried the sidebar, "Imperfections abound with death penalty."

The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.

In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach's commonwealth's attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim's family (one wanted death).

Bryant's decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans' guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot's Duane Bourne that last month's plea agreement brought some finality to Elisabeth Kelly Reilly's family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.

These are gut-wrenching decisions. Bryant acknowledges that. But they're also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.

And:

Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?

The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.

Southern Political Report noted the Pilot articles in the post, "The other 'death tax'," by John Tures.

Conservatives are very well versed in the original “death tax,” the term they use to describe the government’s estate tax.  But do they know about the other “death tax?”  It’s the one that costs states millions, leaving many with the unpopular choice of raising taxes or cutting services.  And that’s the policy of capital punishment.

Several years ago, I prepared to give a presentation on both sides of the death penalty at an Arkansas college.  I asked the audience what their opinion was on the subject.  “Fry ‘em,” one said without hesitation, and nobody said anything different.  Perhaps that sentiment translates well on a national level, where polls show 65% of Americans supports the death penalty.  That’s the findings from the latest Gallup Poll.  The number of supporters has remained relatively constant this decade.  In fact, only once (1965-1968) has the public had more death penalty opponents than proponents.  Additionally, 70 percent of states have the death penalty on the books.

One reason folks support the death penalty option is their belief that it is a cheaper alternative than taking care of someone’s basic needs in prison for the rest of their life.  Yet a new study has shown the opposite: the death penalty is a far more expensive option than trials without that capital punishment option, according to Lucile Malandain in the AFP publication, “Ending death penalty could save US millions."

In addition to documenting the high cost of executions, the report also notes the budgetary woes law enforcement officials face.  And the authors report that a survey of police chiefs find that the death penalty is the least effective tool for deterring crime.

The Pilot editorial on capital litigation cost is here.  Related posts are in the cost index.

"Death sentences have dropped sharply after life without parole became possible," appeared in the Sunday Fort Worth Star-Telegram.  It's written by Aman Batheja and also contains several charts and tables. 

While the debate over capital punishment rages anew in Texas, new inmates going to Death Row have hit a 35-year low as prosecutors are pushing for fewer death sentences and, many believe, juries have become less willing to give them.

Various factors have contributed to a stark decline in death sentences and a dramatic shake-up in the ranking of counties that use it the most.

The biggest game-changer appears to be the introduction of life without parole as an option for juries in 2005, according to several prosecutors and defense lawyers. The change in state law represented a huge shift for jurors in capital cases, who previously were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.

"With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," Tarrant County District Attorney Joe Shannon said. "We are probably waiving the death penalty more times than we used to because we’re trying to forecast the outcome of the case."

But because of the state’s growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to Death Row. State Sen. Eddie Lucio Jr., D-Brownsville, the author of the life-without-parole law, said prosecutors are trying to blame it for their troubles getting Texans to trust a scandal-ridden system.

"It isn’t life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."

In the four years since the introduction of life without parole, Texas death sentences have dropped 40 percent compared with the four years prior, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.

Texas juries sentenced 13 people to death in 2008. Nine others have received death sentences this year, including Erick Davila, who was sentenced in February for gunning down a 5-year-old girl and her grandmother during a birthday party in southeast Fort Worth.

It’s a far cry from 15 years earlier, when juries sent 49 people to Death Row.

And:

A competing theory for why death sentences have declined is that jurors have become more worried about sending an innocent person to Death Row.

Reports of exonerations have popped up regularly in the past three years. Dallas County District Attorney Craig Watkins’ office has helped obtain exonerations for 20 wrongfully convicted defendants in Dallas County.

A poll from Rasmussen Reports released Thursday found that 73 percent of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit.

Researchers at the Texas Defender Service, a nonprofit group that aids defense teams in death penalty cases, say that in capital murder trials in which prosecutors sought the death penalty, the chances of the jury delivering a death sentence have dropped below 50 percent this year. Anecdotally, lawyers say the chance of a death penalty conviction was much higher several years ago and throughout the 1990s.

Scott Phillips, an associate professor of sociology and criminology at the University of Denver who has studied the use of the death penalty, said death sentences have declined nationwide, suggesting that the option of life without parole is just part of the reason in Texas.

"People are obviously concerned about innocence," Phillips said. "People are concerned about cost.  . . .  People are concerned about racial disparity."

Alan Levy, the lead criminal prosecutor in the Tarrant County district attorney’s office, said he believes that reports of questionable cases have affected juries.

"It plays a big role," Levy said. "People are very skeptical."

The article has other data available at the LINK.  Related articles are in the sentencing category index.

The Court has heard Graham v. Florida earlier this morning, and it is hearing Sullivan v. Florida at this time.  I'll break out coverage into three posts.  This one will contain editorials, the next post OpEds, and the third post will contain oral argument previews.  Transcripts of the oral arguments will be available here, later today.

"Imprisoning a Child for Life," is the title of an editorial in today's New York Times.

The United States could be the only nation in the world where a 13-year-old child can be sentenced to life in prison without possibility of parole, even for crimes that do not include murder. This grim distinction should trouble Americans deeply, as should all of the barbaric sentencing policies for children that this country embraces but that most of the world has abandoned.

The Supreme Court must keep the international standard in mind when it hears arguments on Monday in Graham v. Florida and Sullivan v. Florida. The petitioners in both argue that sentencing children to life without the possibility of parole for a nonhomicide violates the Eighth Amendment prohibition against cruel and unusual punishment.

The court came down on the right side of this issue in 2005 when it ruled that children who commit crimes before the age of 18 should not be subject to the death penalty. The decision correctly pointed out that juveniles were less culpable because they lacked maturity, were vulnerable to peer pressure and had personalities that were still being formed.

Writing for the majority, Justice Anthony Kennedy said the practice of executing 16- and 17-year-olds violated the Eighth Amendment, conflicted with “evolving standards of decency” and isolated the United States from the rest of the world.

The Roper decision took scores of juveniles off death row. It also threw a spotlight onto state policies under which young juveniles were increasingly being tried in adult courts and sentenced to adult jails, often for nonviolent crimes.

The practice is even more troubling because it is arbitrary. Children who commit nonviolent crimes like theft and burglary are just as likely to be shipped off to adult courts as children who commit serious violent crimes. And the process is racially freighted, with black and Latino children more likely to be sent to adult courts than white children who commit comparable crimes.

"The editorial, "Locked away forever," appears in today's Washington Post.

Only 106 prisoners -- 77 of them in Florida -- have been given life without parole for offenses that did not involve a homicide or attempted homicide. Only two people -- including Mr. Sullivan -- have been handed this guaranteed life sentence for a non-homicide committed at age 13.

Most states have not consciously sanctioned imposition of mandatory life terms for juveniles. Instead, these sentences are the warped confluence of an increasing number of prosecutions in which juveniles are charged as adults and the increasing number of crimes that carry sentences of life without parole. The punishments fail to take into account the neurological, psychological and developmental differences that distinguish juveniles from mature adults.

Mr. Sullivan's lawyers make a compelling case that the frequent rejection of such draconian sentences by lawmakers, juries and judges shows "the country's radical repudiation of life without parole for children of this age." The Supreme Court cited similar trends and statistics in a 2007 case in which it ruled that the death penalty was unconstitutional in juvenile cases.

A brief filed in support of Mr. Sullivan by, among others, actor-director Charles S. Dutton and former Wyoming senator Alan K. Simpson, a Republican, makes a powerful case for giving juveniles at least a shot at freedom. Both of these men experienced serious trouble with the law in their early years: Mr. Dutton, who grew up in a housing project in Baltimore, spent time in juvenile facilities and later years in prison for stabbing a man to death and for assaulting a prison guard. Mr. Simpson recalls taking part in arson and other crimes. These men's ascents to the tops of their professions could not have been predicted by their often violent childhoods.

Juveniles who commit serious offenses should face serious penalties. A life sentence in some circumstances may be appropriate. But that sentence should carry with it the opportunity for a second chance.

On Saturday, the Los Angeles Times ran the editorial, "Cruel life in prison."

The U.S. Supreme Court recognized in 2005 that it is unconstitutionally cruel to execute people for crimes committed before they were 18, because youths lack the sense of responsibility that society requires of adults. Their personalities are not yet fixed; they are more susceptible to the negative influences of other people or events. Society's understandable demand for retribution is necessarily blunted when the perpetrator of a crime is a juvenile. Likewise, the threat of a stiff penalty cannot have the same deterrent effect on a youth as it does on an adult; young people have too little experience to fully grasp the consequences of their actions.

The court on Monday will hear arguments in the cases of two Floridians sentenced, in effect, to eventually die in prison because they lack even the slightest chance of release on parole. The same reasoning that bars execution for crimes committed in youth should also block such sentences of life without hope for young people, at the very least for those whose crimes fall short of murder.

Terrance Jamar Graham was 16 when he joined two others in a failed attempt to rob a restaurant; a year later, he was on probation when he participated in a home invasion robbery. His crimes were brutal; he was a repeat offender; and he deserved to be punished, to be imprisoned, and even, perhaps, to be sentenced to life. But not without a chance, in the future, for a court or parole board to review his growth and development and consider another chance at parole.

There are, to be sure, youths who mature earlier than others, just as there are adults who never fully mature. But there must be a line, and age 18 is the point at which society determines people are ready to sign contracts, marry without parental consent, serve on juries and be drafted into the military.

Society can and should countenance a hopeless existence in prison for adult perpetrators. But not for juveniles. The U.S. is, for now, the only nation that has not banned life in prison without parole for juvenile offenders, and more than 2,000 are serving such terms behind bars.

Earlier coverage of the issue begins with this post; next, the OpEd.

That's the title of Patrick Orr's report in the Idaho Statesman of Boise.  It's subtitled, "Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005."

For Elmore County prosecutor Kristina Schindele, the decision was simple: The only way Mexico would extradite accused triple-murderer Jorge Orozco to Idaho was if the county agreed not to pursue the death penalty.

But as Ada County Prosecutor Greg Bower faced one of the most high-profile murder cases in his decades-long career, the call was much tougher.

He ultimately wouldn't detail "the many legal and factual reasons" why he is not seeking the death penalty for Daniel Ehrlick and Melissa Jenkins, saying he didn't want to prejudice the jury pool.

But trying to predict exactly what that jury will do is likely a major factor why Bower won't seek the death penalty in the beating and murder of 8-year-old Robert Manwill.

Because in death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.

Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho - double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.

And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial.

Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others - including one in a child-death case with many similarities to the Manwill case.

And:

To impose the death penalty, a jury must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh the mitigating factors offered by the defense.

Mitigation is not as strictly defined. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma - including mental, physical and sexual abuse.

Today's Twin Falls Times-News carries the editorial, "Capital punishment may be gone for good in Idaho."

Is the death penalty a thing of the past inthe Gem State? Sure looks that way. Ada County Prosecutor Greg Bower's recent decision not to seek the death penalty against the mother and her boyfriend accused of killing 8-year-old Robert Manwill last summer shows just how difficult prosecutors believe it is to convince a jury to put a convicted person to death in Idaho.

And there are other considerations as well. Recession-battered small counties simply can't afford the hundreds of thousands of dollars that prosecuting a death penalty case requires.

In 2002, the U.S. Supreme Court ruled that juries - not judges - must impose capital punishment. For prosecutors, that's a much bigger hurdle.

To apply the death penalty, jurors must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh mitigating factors offered by the defense.

Mitigation is a murky concept. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma.

Since juries took over deciding the death penalty, only two Idaho counties have asked for capital punishment in murder cases. Ada County - Idaho's biggest and most prosperous - hasn't pursued it since being denied twice in 2005.

And:

Polls have consistently shown that Idaho is one of the most pro-death penalty states in the nation, but just one person in half a century has been executed here - double-murderer Keith Eugene Wells, who dropped all appeals and demanded lethal injection in 1994.

Unless the Supreme Court changes the rules, capital punishment is the longest of longshots for Idaho prosecutors nowadays. And nobody in Idaho - not the governor, the Legislature, the attorney general nor prosecutors - is in a position to change that.

Earlier coverage from Idaho is here.

"Prosecutors won't be called to testify on death penalty," is the title of Andrea Siegel's Baltimore Sun report.

In a setback to a prisoner challenging the state's new death penalty curbs, Maryland's 24 state's attorneys will not be called to testify how they decide whether to seek capital punishment in murder cases.

Lawyers for Lee Edward Stephens, 30, one of two inmates who face the possibility of execution if convicted of the 2006 killing of a state prison correctional officer at the now-closed Maryland Correctional Institute in Jessup, said they were disappointed with a judge's ruling on Monday.

They argued that the changes enacted this year by the General Assembly compound "the unevenness" of the law.

The disparity among counties is a well-known argument the defense had hoped to revive with the prosecutors' testimony.

Prosecutors around Maryland vary in their seeking the death penalty. Studies have documented that those in Baltimore County have pursued it in all eligible cases and those in Baltimore City rarely have.

Anne Arundel County Circuit Judge Paul A. Hackner, who is expected to rule in coming weeks on the constitutionality of the changed law, said he will consider the disparity argument, though it has been shot down by the courts.

The state's highest court has ruled that a defendant has to show that the law discriminated against him, not others, Hackner said.

"The only case that matters is Mr. Stephens' case. Everything else is for the legislature to consider," he said.

"We think the new statute narrows down the class of people that are even eligible for death, but not in a wise way," Michael E. Lawlor, one of Stephens' two lawyers, said after the hearing.

The law was amended this year to limit capital punishment to murder cases where there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

But prosecutors were pleased. They successfully argued that a week of explanations of how death penalty decisions are made elsewhere is irrelevant to the capital case against Stephens in an Anne Arundel County courtroom. Prosecutors from Montgomery and Prince George's counties joined Anne Arundel County Assistant State's Attorney Sandra Howell in saying the testimony would be a waste of time.

The Capital of Annapolis has, "Is death penalty law constitutional?" written by Scott Daugherty.

Circuit Court Judge Paul A. Hackner already is considering voluminous legal motions surrounding the constitutionality of the new law and defense attorneys plan to file additional motions in the coming weeks.

"The law is freakish and wanton and arbitrary," said Michael Lawlor, an attorney representing Lee Edward Stephens, one of two inmates charged with murder in the July 25, 2006, death of Correctional Officer David McGuinn at the Maryland House of Correction.

The law, which went into effect Oct. 1, restricts prosecutors to seeking the death penalty only in murder cases where they have DNA or other biological evidence, a videotaped confession or a video linking the suspect to the crime.

Earlier coverage includes, Caryn Tamber's report last week in the Maryland Daily Record,"All Md. state's attorneys subpoenaed in capital case."

Lawyers for a capital murder defendant have subpoenaed all 24 Maryland state’s attorneys to testify about how they decide when to seek the death penalty.

The top prosecutors have been summoned to appear in Anne Arundel County Circuit Court over four days next week, starting Monday.

“We are alleging that the death penalty is unconstitutional in Maryland because it’s one statute and it’s one state, yet what will get you death in several counties won’t get you death in a lot of others,” said Gary E. Proctor, one of the lawyers for accused prison guard-killer Lee Edward Stephens.

“If it’s one state, they should have one state method of deciding who goes to death row and who doesn’t,” Proctor said. “The only way I know to demonstrate that is to call all the elected officials.”

Proctor and Lawlor have asked the state’s attorneys to bring any written guidelines they use when determining whether to seek the death penalty in a particular case.

Anne Arundel County Assistant State’s Attorney Sandra Howell has filed a motion to quash the subpoenas and will argue that motion Monday, before the state’s attorneys are scheduled to testify.

“It’s the state’s position that their testimony simply is not relevant to whether the statute is constitutional,” said Kristin Fleckenstein, a spokeswoman for the Anne Arundel County state’s attorney.

"Questions of justice in court changes," is the title of Michael Kiefer's report in the Arizona Republic.

Since Maricopa County Attorney Andrew Thomas took office in 2005, he has asked for death sentences in murder cases more than 120 times - more than any other top prosecutor in Arizona history.

His support of the death penalty is unwavering: He has run for election and re-election on the pledge he will continue to seek capital sentences.

Consequently, the number of death-penalty defendants swelled faster than the court system could handle. There just weren't enough judges, prosecutors and qualified defense attorneys available.

At the beginning of 2009, there were 129 defendants awaiting trial in capital cases in Maricopa County, most of them years beyond the 18-month time period in which, under court rules, they are supposed to be tried.

But now, the number of capital cases is being whittled down rapidly.

Faced with a growing backlog and further delays in justice, the Superior Court has made some aggressive changes. Presiding Criminal Judge Gary Donahoe and other leaders of the Superior Court are refusing to postpone trial dates in death-penalty cases and demanding that prosecutors and defense attorneys discuss settlements, which would mean less than a death sentence.

The goal is to apply pressure to resolve cases more quickly, but both Thomas and defense attorneys question whether justice is being best served.

Court officials are standing firm.

"I think firm trial dates settle cases," Donahoe said. "People start looking at their cases when it gets close to their trial date and start making decisions as to whether they want to go to trial or settle it. They can plead, go to trial, dismiss. We don't really care which. But we want to get the case resolved."

So far, the tactic has worked.

Despite his hard-line pledges, Thomas this year has allowed 27 defendants who faced the death penalty to plead to life sentences or less. That's nearly twice as many as last year and eight times as many as in 2005.

Thomas also has filed fewer notices of intent to seek the death penalty, or death notices.

As of today, there are only 100 capital defendants in trial or awaiting trial. There is a schedule to try or settle more than 20 of those cases before year-end.

Prosecutors and defense attorneys alike once complained over the lag time in capital cases. Now, they say that they don't have enough time to prepare for trial, forcing them into agreements to settle.

And:

The death penalty is supposed to be reserved for the worst of the worst murderers.

"The U.S. Supreme Court has long ago said that executing everyone who commits a homicide is not an option," said Larry Hammond, a defense attorney and expert on the death penalty.

In Arizona, the death penalty can be imposed by a jury only against a defendant found guilty of first-degree murder, and the jury must find certain aggravating circumstances. Among the circumstances are cruelty and depravity, cold calculation, multiple murders or other serious crimes, monetary gain, a victim who is a minor, and gang participation.

In the 1980s, there was an average of one capital case filed per year in Maricopa County. In the 1990s, there was an average of nine per year.

By 2004, the numbers began to soar under then-County Attorney Rick Romley, who filed 31 that fiscal year, according to Judge Ryan.

When Thomas took office, the numbers rose even higher: Romley and Thomas combined filed 32 in fiscal 2005. In fiscal 2006, Thomas filed 46 and nearly matched that record last calendar year with 41.

Thomas has filed only 13 more new death-penalty cases this year. "That is cyclical," he said. "Six months from now, we could be having a different conversation."

Thomas says the backlog existed when he took office because "the other actors in the justice system" did not "deliver timely justice."

Generally, it takes from six weeks to six months to try a capital-murder case.

Yet, the criminal bench has scheduled 20 or more cases in the three months between now and the end of the year.

Rather than distribute the capital cases among all the judges - who manage more than 40,000 cases a year - Donahoe said he deliberately grouped death-penalty cases among six judges because of their experience. But it is practically impossible for those judges to get through that many trials. The assumption is that more will settle, and others will be transferred to any of the court's other 10 criminal judges who have taken specialized training in the event they have to pick up a capital case.

Under Arizona law, the prosecutor must file a notice of intent to seek the death penalty within 60 days of arraignment. As the case develops, it needs to be re-evaluated.

In the past two years, the criminal court presiding judges have insisted prosecutors and defense attorneys meet to broach the topic of settlement.

They discuss how likely it is the case will result in a death penalty and, if so, whether there are issues that are likely to trigger appeals. They also predict how a jury will react to the evidence. And they consult with the victims' families, explaining that even if the death sentence is imposed, it may take 20 years to execute the defendant.

"The victims have a constitutional right to a speedy trial," Donahoe said. "They're going to benefit, too, from the speedy trial or holding everyone to the 18 months and getting them firm trial dates."

The push to resolve the backlog of capital cases will continue, as will the debates over the county attorney's right to file death notices and the defendants' rights to a fair - not just speedy - trial.

Today's Mohave Daily News has an AP version of the report, "Backlog of Arizona death penalty cases whittled down."

Maricopa County Attorney Andrew Thomas has sought death sentences in murder cases more than 120 times since taking office in 2005, but death-penalty cases rose faster than the court system could handle.

At the start of the year, 129 defendants were awaiting trial in capital cases in Maricopa County, most well beyond the 18-month time period in which cases are supposed to be tried.

Now, Superior Court judges are refusing to postpone death-penalty trials and are demanding attorneys discuss pleas - which means less than a death sentence.

‘‘I think firm trial dates settle cases,'' said Maricopa County Presiding Criminal Judge Gary Donahoe. ‘‘People start looking at their cases when it gets close to their trial date and start making decisions as to whether they want to go to trial or settle it. They can plead, go to trial, dismiss. We don't really care which. But we want to get the case resolved.''

This year, Thomas has allowed 27 defendants who once faced the death penalty to plead to life sentences or less. He's also filed fewer notices of intent to seek the death penalty.

There are currently only 100 capital defendants in trial or awaiting trial. There is a schedule to try or settle more than 20 of those cases before year-end.

Prosecutors and defense attorneys alike once complained over the lag time in capital cases. Now, they say that they don't have enough time to prepare for trial, forcing them into agreements to settle.

‘‘We're just enforcing the rules,'' Donahoe said. ‘‘When someone has had the case for four years and they want more time, I'm not sympathetic.''

Thomas also has accused the court of applying undue pressure on his office to force settlements.

‘‘They are trying to compel me to plea-bargain these cases,'' he said. ‘‘I believe the justice system should be about getting justice, not about moving cases off the docket at the expense of crime victims and society.''

Of the 43 capital cases resolved this year, only nine resulted in death penalties.

In Arizona, the death penalty can be imposed by a jury only against a defendant found guilty of first-degree murder, and the jury must find certain aggravating circumstances. Among the circumstances are cruelty and depravity, cold calculation, multiple murders or other serious crimes, monetary gain, a victim who is a minor, or gang participation.

In the 1980s, there was an average of one capital case filed per year in Maricopa County. In the 1990s, there was an average of nine per year.

By 2004, the numbers began to soar under then-County Attorney Rick Romley, who filed 31 that fiscal year, according to Judge Ryan.

When Thomas took office, the numbers rose even higher: Romley and Thomas combined filed 32 in fiscal 2005. In fiscal 2006, Thomas filed 46 and nearly matched that record last calendar year with 41.

Earlier coverage of the geographic disparity of seeking death in Arizona begins with this post.  Geographic disparity is generally a function of prosecutorial discretion.

Diane Jennings notes Adam Gershowitz' latest scholarship in a post this morning at the Dallas Morning News Death Penalty blog, "Creation of statewide death penalty prosecution unit suggested."  An excerpt:

Use of the death penalty in Texas has always been highly subjective, according to where the crime occurs. Dallas County has a history of using the ultimate punishment relatively sparingly while Harris County, until recently, earned a reputation for employing it frequently. Many counties never use it at all, not because prosecutors have misgivings about it, but sometimes because the county simply can't afford it.

South Texas College of Law professor Adam Gershowitz has written an article "Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty " suggesting creation of a statewide death penalty unit to minimize the "geographic arbitrariness" of capital punishment while reducing costs.

His work is noted in this post.

University of Houston Law prof Adam Gershowitz' latest work at SSRN is, "Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty."  Here's the abstract:

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

Earlier work by Gershowitz is noted here; related posts in the scholarship index.

The North Carolina Senate convenes at 3:00 pm (EDT) today and SB 461is on the agenda.  The Senate passed an earlier version of the legislation.  If the Senate concurs today with changes made in the NC House of Representatives, the measure would go to the governor.  If the Senate does not concur, a conference committee of House and Senate members would work out differences.  A conference committee report would then require approval by both bodies.

The Senate session will be webcast here.

Today's News & Observer carries the OpEd, "Race as a death penalty factor," by Matthew Robinson, an Appalachian State University prof and author of Death Nation: The Experts Explain Capital Punishment.

Several arguments are being made against the North Carolina Racial Justice Act, which is up for a state Senate vote. They include these: a law cannot assure racial justice; patterns of racial disparities are not useful for demonstrating evidence of racial discrimination in particular cases; other plausible explanations for racial disparities exist besides bias on the part of prosecutors, judges and juries; and there are other serious problems with the death penalty that this bill does not address.

A response to these claims is warranted. First, the law does not assure racial justice, but it can help bring it about. The law is one of the most powerful legitimate weapons we can use to rid our state criminal justice practice of racial bias. It does not address the roots of the problem -- stereotypes, fear and even racism -- but it is a start. And the bill provides a potential remedy for those who can conclusively demonstrate to a judge that race played a role in their case.

Second, patterns of racial disparities are relevant. In North Carolina, where killers of whites are far more likely to be sentenced to death than killers of blacks (especially when the offender is black), this pattern of racial disparities is made up of individual cases, cases like that of black man Robert Bacon who was sentenced to death by an all-white jury even as his white co-defendant did not receive a death sentence. In the absence of such individual cases, there would be no pattern of racial disparities.

And:

Here's the bottom line. North Carolina has a unique opportunity to become only the second state in the country to pass such a law. Further, we have the chance to correct an error made by the U.S. Supreme Court when it ruled against Warren McCleskey in 1987.

McCleskey showed that, in the state of Georgia, 11 percent of people charged with killing whites received the death penalty, but only 1 percent of those charged with killing blacks received the death penalty. Even after controlling for legally relevant variables, killers of whites were four times more likely to receive a death sentence than defendants charged with killing blacks. In interracial murders, the death penalty was assessed in 22 percent of the cases involving black defendants and white victims, versus only 3 percent of cases involving white defendants and black victims.

The main source of the disparities? Prosecutorial discretion. Prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, versus only 9 percent of cases involving white defendants and black defendants.

In the McCleskey case, the court ruled that statistics such as those offered by Warren McCleskey did not rise to a constitutional violation based on racial discrimination, and that the burden rests on the defendant to show purposeful discrimination by the prosecution or state. Thus, today in Georgia, nearly the exact disparities based on race are still found.

Two important studies illustrate similar racial disparities in North Carolina. The first (1993-1997) found that the "odds of receiving a death sentence rose by 3.5 times or more among those defendants ... who murdered white persons." The second (2000-2006) found that "blacks who kill whites were 14 times more likely to be sentenced to death than whites who kill blacks."

Robinson's book is noted here.

Today's Ashville Citizen-Times reports, "Families of murder victims support Racial Justice Act."  It's written by Jon Ostendorff.

Supporters of a law that would allow evidence of racism to be used in overturning death penalty convictions asked lawmakers on Monday to send the measure on to the governor.

The state Racial Justice Act has passed the House and is set for a Senate vote today.

The law would allow people convicted of capital murder to demonstrate that race played a significant role in their death sentences or in a prosecutor's decision to seek the death penalty.

Statistical evidence, such as the racial makeup of a jury, could be used in court to help prove bias. A judge could replace a death sentence with a sentence of life imprisonment without parole.

The bill has support from churches, the NAACP and regional politicians. Asheville Mayor Terry Bellamy has pledged her support, and Sen. Martin Nesbitt, D-Asheville, is a co-sponsor.

Family members of murder victims spoke out in support of the law Monday at the Haywood County Courthouse in Waynesville.

Asheville resident Megan Smith's father and stepmother were killed in Pennsylvania in 2001 by her adopted stepbrother and one of his friends, who is now on death row.

She opposes the death penalty.

“I know that the death penalty is a broken system,” she said. “The death penalty is not bringing justice to my family.”

Jean Parks, of Fletcher, also knows what it's like to lose a family member to violent crime. Her sister, Betsy Parks Rosenberg, was murdered in Raleigh in 1975. She was a student at UNC Asheville at the time.

Parks said if North Carolina is going to have capital punishment, the system needs to be fair.

Of the 163 inmates on the state's death row, more than half are African-American. Only 20 percent of the state's population is African-American.

The Murder Victims' Families for Reconciliation organized the event Monday on the courthouse steps. The group was in Waynesville trying to get its message to state lawmakers in the far western counties.

Earlier coverage of the RJA begins with this post.

The director of the ACLU Capital Punishment Project writes, "Sentenced To Death Because Of Where You Live: The Death Penalty’s Geographic Bias," at the ACLU Blog of Rights.

Americans have become increasingly troubled by the profound flaws in our capital punishment system, including its astonishing error rate and its racial and socioeconomic biases. They are less aware of its disturbing geographical biases.

The United States does not practice capital punishment. Isolated parts of it do.

The death penalty is primarily a southern institution, as Death Penalty Information Center statistics establish. The State of Texas alone has accounted for over 37 percent of all executions in the U.S. since 1977, which marked the beginning of the nation’s modern death penalty era. Of the 32 executions carried out so far this year, Texas is responsible for half of them.

Southern states accounted for 95 percent of the executions in 2008 (Texas alone accounted for about 50 percent). In 2007 (the last year for which statistics are available), juries returned 115 death sentences throughout the nation and, of these, over 60 percent were in the South.

However, geographic bias does not exist only from region to region and from state to state. There are substantial geographic biases within states themselves. A 2002 study found that more than two-thirds of American counties have never imposed the death penalty since 1977. Only 3 percent (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period.

In Texas, over 33 percent of the prisoners on the state’s death row today come from one county — Harris County, where Houston is located. Harris County has rightly been called the capital of capital punishment. An Amnesty International publication from 2007 reported that if Harris County were a state, it would rank second behind Texas in total number of executions since 1977.

And:

The overwhelming geographical bias of our capital punishment system is further evidence that the system is arbitrary and capricious — and fundamentally unfair. It is one more reason for us to join the rest of the civilized world and repeal our capital punishment statutes.

As I have noted in the past, approximately 90% of the executions and death sentences in Texas come from 33 of Texas' 254 counties.

Related articles are in the goegraphic disparity category index.

Today's New Orleans Times-Picayune carries the report, "Surge in death penalty prosecutions slows in Jefferson Parish," written by Paul Purpura.  Here are two excerpts from the lengthy article:

After Louisiana reinstated the death penalty in 1975, Jefferson Parish juries sent 28 people to death row at Angola.

Half of those inmates have been sent there since Jefferson Parish District Attorney Paul Connick Jr. took office in 1997. By the time his first six-year term ended, 10 people were sentenced to death.

But what began as an aggressive pursuit of capital prosecutions has declined in recent years, leading court observers to question whether Connick is shying away from the death penalty or if Jefferson is mirroring a national trend.

It has been five years since a Jefferson Parish jury recommended a death sentence and four years since prosecutors tried a capital case. While suspects have been indicted on capital murder charges in some high-profile homicides, prosecutors later reduced the charges to second-degree murder, which carries a mandatory life sentence.

Now, one person is charged with capital murder in Jefferson Parish, a paltry figure compared to neighboring New Orleans, where 31 people face first-degree murder charges.

While Connick acknowledged that his office is pursuing fewer capital prosecutions, it does not reflect a change in his philosophy.

And:

But observers say Jefferson Parish is in line with a national trend away from capital prosecutions, which have declined 65 percent since 1999, according to the Death Penalty Information Center, a nonprofit organization in Washington.

"This is certainly not a unique response by Paul Connick," said capital punishment opponent Nick Trenticosta of the Center for Equal Justice in New Orleans, which steers death sentence appeals. "It's a response all across America. Offices all over the country are cutting back on the death penalty."

"Executions are down, death sentences are down, capital prosecutions are down," said lawyer Denny Leboeuf of New Orleans, a death penalty opponent who directs the ACLU's John Adams Project in New York.

In Jefferson, prosecutions for second-degree murder are the norm, even as police routinely book suspects with first-degree murder.

"The trend in these numbers, as across the country, reflects the emerging view that life without parole is an incredibly serious punishment and that juries, prosecutors, the public and family members of victims are increasingly preferring the certainty of a life sentence over the confusion and delays, multiple retrials and high error rates that are inherent in capital cases," said Jelpi Picou, executive director of the Capital Appeals Project in New Orleans.

That's the title of Phillip Reece's article in today's Sacramento Bee.  LINK

Murderers are more likely to be sentenced to death in conservative California counties, particularly in the southern part of the state, according to a Bee analysis of recent data from the state attorney general's office.

From 1998 to 2007, prosecutors obtained about one death penalty conviction for every 100 murders statewide, the figures show. In Orange County, the rate was twice as high; in Riverside County, it was three times as high.

At the same time, San Francisco and San Mateo counties haven't sentenced anyone to death in 15 years (with the exception of the Scott Peterson case transferred to San Mateo from Modesto.)

Overall, the five large California counties with the highest rate of registered Republicans sentenced murderers to death almost three times as frequently as the five counties with the lowest rate of Republicans.

There are major exceptions. Largely Republican Placer County hasn't issued the death penalty in 20 years while largely Democratic Alameda County condemns murderers somewhat frequently.

And:

Most murders can be charged as death penalty crimes, said UCLA law professor Stuart Banner, so it often comes down to the preference – and politics – of a district attorney.

"District attorneys are elected," said Banner, author of "The Death Penalty: An American History." "The death penalty is more popular in some counties than in others."

The expense of capital cases also can deter prosecutors in both very small and very large counties, Banner added.

Riverside County District Attorney Rod Pacheco, a former Republican assemblyman, noted that many convictions in the state's figures came or started under his predecessor's watch. His office now spends more time listening to law enforcement, victim's families and even defense attorneys before making a decision about whether to seek the death penalty, he said.

Nonetheless, noted UC Berkeley law professor Elisabeth Semel, Pacheco seems to have continued prosecuting death penalty cases at the same rate as his predecessor.

Pacheco said he did not know whether his approach had shifted the numbers, but noted that his constituency generally is tough on crime, as is he.

"The people here have a very different view of public safety than the people in San Francisco," Pacheco said.

Yesterday's SacBee preview is noted here.

The SacBee is previewing an article that will be in tomorrow's print edition.  It contains an interactive map examining the geographic disparity of death sentences in the state, at this LINK.

Several factors can affect how often prosecutors obtain death penalty convictions. These include, but are not limited to, how often prosecutors seek the death penalty, law enforcement's murder arrest rates, the makeup of juries and the frequency of particularly heinous killings.

The web version also contains brief interviews with:

Interview with Riverside County District Attorney Rod Pacheco

Has that changed the number of death penalty prosecutions?: Every case is different. I don't know if we've had more or less (death penalty prosecutions) ... The people here have a very different view of public safety than the people in San Francisco.

Interview with ACLU researcher Natasha Minsker.

How much does the political leanings of juries come into this?: I have seen no evidence that political beliefs play a part in this. In Northern California, Alameda County stands out as having the most convictions, and it is one of the most progressive counties in the state. ... (Because the voir dire process weeds out jurors who say they can't impose the death penalty) the juries you end up with in Alameda County are all still pro-death penalty.

More on the California debate begins here.  I'm looking forward to the SacBee's full coverage tomorrow.

"Committee OKs bill meant to help defendants challenge death penalty," is the title of James Romoser's report in today's Winston-Salem Journal.

A bill that would establish a new pro­cedure for defendants to challenge the use of the death penalty advanced yesterday in the General Assembly.

The bill, known as the "North Carolina Racial Justice Act," was approved 7-5 by a committee in the state House. It now moves to a different committee before coming up for a vote in the full House. The Senate passed a previous version of the bill last month.

Supporters of the bill say it would give defendants and death-row inmates clear legal channels through which they could argue that the application of capital punishment was racially motivated, either on the part of a prosecutor who sought the death penalty or on the part of a jury that imposed the death penalty.

"It takes steps toward eradicating the problem of racial bias in the capital-punishment process," said Jeremy Collins, the campaign coordinator of the N.C. Coalition for a Moratorium.

Two of the bill's chief supporters in the legislature are two Winston-Salem Democrats: Rep. Earline Parmon and Rep. Larry Womble.

Opponents say that the bill, while well-intentioned, goes too far because it would allow defendants to use statistical evidence from previous cases to show racial bias.

For instance, if a black death-row inmate proved that, in his county, other black defendants were significantly more likely than white defendants to be sentenced to death, that would be enough for a judge to throw out the inmate's death sentence.

The sentence would be converted to life in prison without parole.

And:

Supporters of the bill said that there is vast evidence suggesting that race has historically been a factor in the use of capital punishment, both nationwide and in North Carolina.

The bill had gotten held up last week in the House committee because many supporters and opponents wanted to speak on the bill.

It had appeared that the bill would be stalled for at least two weeks, but the committee's chairman scheduled a new meeting yesterday afternoon for the committee to take up the bill again.

After about 45 minutes of debate, the vote was taken and the bill was narrowly approved.

Raleigh's News & Observer carries a brief AP dispatch, "Racial bias procedure OKd in House committee."

A House panel has agreed to legislation providing a way for defendants in North Carolina to try to prove racial bias put them on death row or caused a prosecutor to seek a capital conviction.

The House Ways and Means Committee voted 7-to-5 Monday for the Racial Justice Act. It now heads to a judiciary panel. The Senate approved a different version of the bill.

A defendant could go to court and if successful get a death sentence reduced to life in prison. The defendant could use statistics and other evidence.

Earlier coverage begins with this post.

That's the title of an OpEd by Maryland State Senator Ron Dyson at Southern Maryland Online.  LINK

Maryland is one of 36 states with a death penalty. This year, legislation to repeal the death penalty is being considered in Maryland and seven other states - Colorado, Kansas, Montana, Nebraska, New Hampshire, New Mexico and Washington.

In Maryland, 53% of the people support the death penalty. I have always opposed the repeal of the death penalty in Maryland.

The Maryland Commission on Capital Punishment, established by the 2008 General Assembly, is the fourth time in the past 15 years that a study of the death penalty was ordered by the Legislature. Two of the studies found that racial disparity in the death penalty existed and continued to exist. The third study found that there was geographic as well as racial disparity. None of these studies recommended that Maryland keep or repeal the death penalty. The Maryland Commission on Capital Punishment voted 13 to 9 to abolish capital punishment.

The reasons for abolishment cited by the Commission included: the racial and geographic disparities that exist…the costliness of death penalty appeals process…the toll the long process takes on survivors…the lack of persuasive evidence that the risk of execution is a deterrent to crime…and the unavailability of DNA evidence in some cases opens the real possibility of wrongly executing an innocent person.

And:

As an opponent of death penalty repeal, I was going to cast my vote against the bill. But three crucial amendments to the bill were approved to restrict the use of the death penalty and nearly abolish the chance of executing an innocent person. The amendments prohibit death sentences based solely on eyewitness testimony and require either DNA or a videotaped confession or a videotaping of the crime.

The Innocence Institute, which investigates wrongful convictions, revealed that of 38 cases in which wrongfully convicted persons were exonerated through DNA evidence, 2/3 of the original convictions were based on eyewitness testimony. In one case, five separate witnesses wrongly identified the defendant. In a 1992 study by Loftus and Doyle recorded verdicts in a mock trial. With no eyewitness identification, 18% of the jury verdicts were guilty. With eyewitness testimony, the guilty verdicts rose to 72%. Several studies found that juries tend to base their decision on a confident eyewitness even when other factors, such as poor visibility or bias, question the validity.

DNA has propelled the criminal investigation process light years ahead of where it was. In 1993, Kirk Bloodsworth of Maryland was the first person on death row to be found innocent by DNA evidence. Bloodsworth was wrongly convicted in 1985 of the rape and murder of a 9-year old child. He always claimed he was innocent. DNA proved it.

In the heart of most people, including this Senator, who supports the death penalty, is the nagging fear of executing an innocent person. The three amendments added to the repeal bill keep the death penalty law, but significantly limit its use and the chances of executing the wrong person. To me, the bill with the amendments was legislation I could support. I voted for the amended death penalty bill.

Earlier coverage of the Maryland legislation begins with this post.

"America has cultural divide on death penalty," is the AP report via the International Herald Tribune.

Roe Wilson sounds at peace with the fact that she has handled or supervised 91 executions in the 20 years she has overseen capital case appeals.

"I've seen what these defendants have done to people," said Wilson, an assistant district attorney in Harris County, Texas -- the busiest death penalty county in America's busiest death penalty state.

Several cases in particular come to mind for her, including a man accused of killing his adoptive parents, two sisters and brother-in-law. The victims were suffocated or fatally beaten with a crowbar, then bound with tape and plastic ties and burned. He died proclaiming his innocence.

"When crimes happen, what you read in the newspapers is so antiseptic. They don't say what the bodies looked like," she said.

Wilson's views are not unusual, particularly in America's conservative Southern states where the biblical view of an eye for an eye rings true. Such states remain committed to capital punishment despite signs that other parts of the U.S. are moving away from it.

Countrywide, death sentences and executions have been on a steady decline for more than a decade. Legislation being debated in several states to abolish capital punishment is getting more attention than in the past.

President Barack Obama has said he is in favor of executions only in extreme cases, but has otherwise mostly avoided the issue and has no direct sway over states' death penalty laws. But he could appoint more liberal justices to federal courts who are less likely to impose death sentences.

Observers caution that the death penalty is not likely to end soon in a country where polls still show 60 percent of people support executions. They point to the mostly conservative American South as the major reason.

And:

Of the 1,151 executions nationwide since the U.S. Supreme court reinstated the death penalty in 1976, the vast majority -- 951 -- occurred in the South, according to the nonprofit Death Penalty Information Center. Texas alone -- the home state of former President George W. Bush -- had 431.

Eleven states out of the 36 that have it are considering abolishing the death penalty, though one of the states with pending legislation is Texas, and the bill is not expected to get far. The remaining 10 have had a total of 30 executions since 1976. And two of those, New Hampshire and Kansas, had no executions at all.

Death penalty opponents point to the fact some of these bills have been provoking more of a debate than in past years as a sign of progress, an indication that minds are changing.

In part, recent death row exonerations prompted by improved methods of testing physical evidence, including DNA samples, have planted seeds of doubt. And changes to state laws also have made a difference, as more states have been giving juries the option of imposing life without parole rather than death.

Financial necessity also is a driving factor. The death penalty is an expensive proposition -- trials often require extra lawyers for appeals and higher security costs -- and cash-strapped states are responding to the notion that it is cheaper to imprison people for life. However once the recession recedes, so could the urge to abolish capital punishment.

"They're getting debate, and that is highly unusual," said Richard Dieter, executive director of the Death Penalty Information Center. But "this is not an indication that the death penalty is going to be gone in two years. It's a ferment, not a revolution."

What will likely happen is that the cultural divide between the regions will grow wider. In the past, close to 80 percent of executions have occurred in the South, now the percentage is closer to 90, Dieter said.

"If it's being practiced just in one region it becomes more suspect," he said.

StandDown's geographic disparity index has earlier coverage on the subject.

State Legislatures are beginning to crank up, and the death penalty is front and center in Maryland.  The Sunday Washington Post carried the OpEd, "A Moral Test for Maryland Legislators," by The Right Rev. John Bryson Chane and the Right Rev. Eugene Taylor Sutton, respectively, the Episcopal bishops of Washington and Maryland.

As the Maryland General Assembly prepares to convene on Wednesday, we hope that legislators will decide against the death penalty in Maryland. Doing so would represent an enormous moral failure for the state and for civil society.

For decades, many religious groups have voiced strong public opposition to capital punishment, believing that every human being is given life by God and that only God has the right to deny life. Of course, we understand that the state must seek justice and prosecute wrongdoing, but we cannot condone the state pronouncing a sentence of death for wrongdoing -- no matter how violent and brutal the crime. There is simply no moral justification for the state to execute a child of God in the name of justice.

The Episcopal Church has carefully studied the application of the death penalty in many states. In every case, it has concluded that the death penalty is unjust and ineffective. It is immoral to any who are seriously committed to the ethics of Jesus, who continually forbade violence as a means to solve problems caused by evil.

The Sunday Baltimore Sun carried the editorial, "The Annapolis agenda."

Maryland lawmakers return for their annual 90-day legislative session in Annapolis this Wednesday with some trepidation. The anxiety-prone need only wait one week for the genuine discomfort to begin. That's when Gov. Martin O'Malley must submit his budget for the next fiscal year, and it's shaping up to be a headache and a half.

And:

Here, in brief, is some of what legislators should be able to accomplish in the next three months:

Death penalty. With the governor's task force's findings in hand, Maryland must repeal capital punishment. The evidence is all too clear: The inequities and opportunities for error are too great while a sentence of life without parole is a workable, more humane alternative.

"Budget deficit will be session's dominant issue," is Liam Farrell's report in the Capital of Annapolis.

Through attempts to ban the death penalty, a successful smoking ban in bars and restaurants and internecine squabbles on changing the rules for DNA collection, the one constant underlying legislative work has been the budget: how much is money is available, will any taxes be raised, and will a new program ever get the funds it is promised?

"Death penalty, police surveillance among laws in play this session," is Steve Lash's Daily Record report.

Sen. Brian E. Frosh, who chairs the influential Senate Judicial Proceedings Committee, said he is prepared to tackle “the two big ones” during the 2009 General Assembly session that begins Wednesday.

The Montgomery County Democrat was referring to legislative proposals to repeal the death penalty and to prevent a repeat of the overzealous surveillance by state police of peaceful protest groups that occurred in 2005 and 2006.

The legislative initiatives follow the release of two state reports issued since lawmakers adjourned in April: one calling for capital punishment’s abolition and the other assailing state police for an “end justifies the means” approach in which officers violated the free-speech and peaceful-assembly rights of protestors in the name of protecting public safety.

Both Frosh and House Speaker Michael E. Busch, D-Anne Arundel, said the Maryland Commission on Capital Punishment’s report could “change the dynamic” that’s led to the defeat of bills to abolish the death penalty in Maryland.

So, too, did Sen. Jamin B. “Jamie” Raskin, D-Montgomery, a commission member and chief sponsor of the legislation that created the panel last year.

The commission, chaired by former U.S. Attorney General Benjamin R. Civiletti, found that death sentences are often tied to the race of the defendant and victim or the location where the murder occurred. The panel also faulted the cost of capital punishment and found it an ineffective deterrent to homicide.

“The commission’s report will change a lot of people’s minds,” said Raskin, who was cautiously optimistic that repeal could come this year. “I think the politics are very close but that there is a strong dynamic against capital punishment.”

Sen. Bryan W. Simonaire, who described himself as a “pretty firm” death-penalty supporter last session, said he will be “open minded” heading into this year’s term.

“I have not made a conclusive, ‘this is the way I’m going to vote,’” said the Anne Arundel Republican. Simonaire said he will continue to research the death-penalty issue and strongly consider his constituents’ views.

“I’m hearing passionately from both sides” of the issue, said Simonaire, a Senate Judicial Proceedings Committee member. “I’m hearing basically 50-50 from my constituents right now on this issue.”

But lawmakers who back capital punishment said the report has not spurred a change in the General Assembly. They noted that the commission’s call for abolition was on a 13-9 vote: a two-vote swing would have blocked the call for repeal.

Earlier coverage of the issue in Maryland begins with this post.

"Prosecutors, Cops and Judges: Ready to Ditch California’s Death Penalty," is her post at California Progress Report.  Minsker is the death penalty policy director for the ACLU of Northern California.  It's a must-read recap of the recent debate in her state.

In opinion pieces that appeared in papers across California last year, former prosecutors, judges and law enforcement officers raised their voices to declare: enough already, it’s time to ditch the death penalty. Let’s consider what they had to say.

Last April, Aundre Herron shared her unique perspective in the Sacramento Bee. Herron began her career as a prosecutor and later became a defense attorney. Yet, nothing in her professional life prepared her for the murder of her older brother Danny. As a result of what Heron calls a “legal technicality,” her brother’s killer was never convicted. She described the experience this way:

Having served on both sides of the criminal justice system, the experience of losing my brother in this unforgettably tragic way, without recourse or retribution, forced me to re-examine the way "execution" and "closure" are joined in contrived alliance, recited by death penalty advocates to justify their point of view. But having survived my brother's murder without the "benefit" of the death penalty, it is clear to me that the death penalty cannot do what its proponents claim.

Former prosecutor Darryl Stallworth came to the same conclusion but through a different path: by asking a jury to sentence a man to death for five gruesome murders. In July, Stallworth’s perspective appeared in the San Jose Mercury News. Stallworth spent 15 years as a prosecutor in Alameda County and considered it a promotion when he was asked to handle a death penalty case. But things changed as he actually worked on the case and learned about the horrific childhood of the defendant who began his life in the maternity ward of a prison. In Stallworth’s words:

What crystallized for me during the trial was something I had slowly been realizing over my career as a prosecutor: I was witnessing a cycle of violence. . . .

And:

Together, these five individuals have more than 100 years of experience working to promote public safety, as prosecutors, law enforcement officers and a judge. Their professional and personal experiences are varied, their reasons are different, but their conclusion the same: it’s time for California to replace the death penalty with condemning the worst offenders to permanent imprisonment, and to invest the hundreds of millions of dollars saved into making our communities safe.

Perhaps it is time we listen.

Earlier posts on the California dialog include:

• In California
• Death Penalty and Race
• Editorial Response to the California Commission
• The Cost of California Death Row

"Wright: Threet pursues execution inconsistently," is the article from Sunday's Arkansas Democrat Gazette.

Betsey Wright believes Washington County Prosecuting Attorney John Threet is inconsistent in pursuing the death sentence, including the one handed down Friday for Zachariah Scott Marcyniuk.

Marcyniuk, who was sentenced by Circuit Judge William Storey, became the 40th person on Arkansas' death row and the second person from Washington County to go to death row this year.

Wright, a death penalty opponent who spent nine years as former Gov. Bill Clinton's chief of staff, said Threet is erratic in his use of the death penalty.

"I'm confused by the prosecuting attorney's lack of standards and equity," said Wright, who lives in Rogers. "He backed away from the death penalty for two people who killed small children, giving them plea bargains for life without parole. Yet, he pursued a death sentence for this mentally ill man.

"I don't think we know what his standard is. Of course, the fact that each prosecuting attorney operates differently is what makes the death penalty so political and easy to use as a threat to get leverage."

Threet considered, but later backed away from, pursuing a death sentence for Lorita Lanej, a woman who pleaded guilty last year to first-degree murder of her boyfriend's 23-monthold son.

Threet took a similar approach in the case of Abon Tili, a Springdale man who pleaded guilty in March in the killing of a 10-year-old girl.

And:

This year's increase in death sentences in Washington County bucks a national trend, said Richard Dieter, executive director of The Death Penalty Information Center. The nonprofit center, established in 1990 in Washington, analyzes capital punishment issues.

Death sentences nationally began a decline in 2000. The 1990s saw 300 people in the U.S. get death sentences in a typical year. Before the Marcyniuk case, 111 people were given death sentences this year, Dieter said.

"But two death penalties may not be a shift in a county that hasn't had any," Dieter said.

Wright said she wants to see what Threet does with his next capital murder cases and whether he'll pursue the death penalty.

"If he gets lots of public backing, he'll keep doing it," Wright said. "If he gets a voice saying it doesn't make any sense, he may back off. I don't think he's very set in concrete about why he's doing this. He seems to be real back and forth."

Threet said that's not true. He applies the same standards to each case and measures each one based on its specific circumstances, he said. He also takes into account the wishes of victims' family members.

"I'm not saying everyone gets the death penalty who qualifies, and I'm not saying no one in the county should get it," Threet said. "Each set of circumstances has to be looked at.

"It's very difficult to get the death penalty, and it should be. What's got some people stirred up is, there have been two in the same year when it's been almost 30 years before that. I didn't choose those crimes. It's just the way it happened."

The article is noted in Arkansas Times Arkansas Blog, "Who should get death?"

Betsey Wright, Bill Clinton's former gubernatorial chief of staff, wrote me yesterday about the changing standard of capital prosecutions in Washington County. She asked that the remarks be off the record. She apparently decided later to discuss the issue with a reporter in Northwest Arkansas. Wright is a death penalty opponent and spends most of her time these days working with Death Row inmates.

The Maryland Commission on Capital Punishment has issued it's final report, urging legislators to abolish the state's death penalty.

"Report fuels death debate," is the report in Saturday's Baltimore Sun by Julie Bykowicz.

With a high-powered commission recommending abolition of the death penalty in Maryland, opponents of capital punishment gained fresh momentum yesterday as they ready a repeal effort for the General Assembly session beginning next month.

A debate over the hot-button social issue could quickly become one of the most heated fights in Annapolis, with Gov. Martin O'Malley pledging that ending the death penalty is among his top priorities.

The capital punishment panel, headed by former U.S. Attorney General Benjamin R. Civiletti, cited the possibility of executing an innocent person, huge financial costs, and racial and regional biases as compelling reasons to eliminate the punishment.

"There are so many faults, so many flaws within the system that we could not imagine ... ways in which to cure it," Civiletti said yesterday.

The issue of capital punishment has long divided the legislature, and repeal efforts have failed the past two years. A bill died last year on a tie vote in a Senate committee.

But Del. Samuel I. Rosenberg, a Baltimore Democrat and commission member, said he believes both the House and Senate could reach a consensus next year.

"I believe the overwhelming weight of the evidence in the study will have bearing on my colleagues," Rosenberg said. "And Chairman Civiletti will be an extraordinary advocate for the failures of the death penalty, the impossibility of correcting it and therefore the necessity of repealing it."

"Panel recommends repeal of death penalty," is Steve's Lash's report in the Maryland Daily Record.

The commission issued its report and recommendation after holding public hearings in which witnesses debunked popularly accepted “myths” in support of the death penalty, said Civiletti, who was attorney general under President Jimmy Carter and is now a partner at Venable LLP in Baltimore.

Contrary to popular belief, keeping a convicted murderer in prison for life is not more expensive than executing him; capital punishment is not an effective deterrent to homicide; and the use of DNA evidence does not remove the risk that an innocent man will be executed, he said.

The cost of prosecuting a case that results in the death penalty is $3 million, including $1.3 million in prison costs and $1.7 million in adjudication expenses, according to an Urban Institute study issued in March and cited in the commission’s report. By contrast, the cost of a capital-eligible case resulting in a life sentence without parole is $1.1 million, including $870,000 in imprisonment costs and $250,000 in adjudication expenses, the institute found.

Forensic evidence, such as DNA, is not always accurate and can lead to erroneous convictions, the report also stated.

Forensic labs “have a difficult time assuring that accurate findings are made,” the report added. “Scientific evidence is easily contaminated at the scene or in the laboratory, and thereafter skewed (intentionally or unintentionally) by analysts.”

And “no persuasive evidence” exists that the threat of a death penalty deters the type of people who would brutally kill from committing their savage crimes, the report added.

Maryland has had a de facto death-penalty moratorium since December 2006, when the Court of Appeals invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedures Act. The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements, or the legislature amends the APA to exempt execution protocols.

The Capital of Annapolis has, "State commission recommends abolishing death penalty, by Christopher Carey.

The 23-member commission, which was created by the Maryland General Assembly in the 2008 legislative session, recommended ending the death penalty by a vote of 13 to 9, with one abstention.

"Death is different ... because it's irreversible," said Commission Chairman Benjamin R. Civiletti, who served as U.S. Attorney General in the Carter administration from 1979 to 1981. "It is neither swift, nor fair, nor sure."

Among its findings, the commission said that the costs associated with the death penalty are higher than the costs associated with a sentence of life without the possibility of parole, and that DNA evidence does not necessarily stop an innocent person from being executed.

The Capital also has, "Report: Death penalty costly, biased," by Liam Farrell.

"The death penalty in Maryland is not uniform … It is a happenstance of color and jurisdiction," said Benjamin Civiletti, a former U.S. attorney general and the commission chairman. "Systemically, the system does not treat one proportionately. It doesn't treat similar crimes in a similar fashion."

Among the report's findings on Maryland's death penalty:

Cases involving an African-American accused of killing a white person are 2.5 times more likely to get the death penalty than cases with a Caucasian person accused of killing someone who is also white.

Capital punishment has pronounced regional disparities. Someone in Baltimore County is almost 23 times more likely to get a death sentence than someone who committed a similar crime in Baltimore City.

Capital cases cost almost three times more than non-death penalty prosecution.

Maryland's capital cases had an 80 percent reversal rate from 1995 to 2007.

"For all of these reasons - to eliminate racial and jurisdictional bias, to reduce unnecessary costs, to lessen the misery that capital cases force victims of family members to endure, to eliminate the risk that an innocent person can be convicted - the commission strongly recommends that capital punishment be abolished in Maryland," the report says.

Although the vote on abolishing the death penalty was just 13-9, the separate findings of the committee on issues such as bias had much larger margins, typically gaining almost 20 votes to less than five in opposition.

Earlier coverage of the Maryland Commission on Capital Punishment begins here.

"Behind the debate," is Jennifer McMenamin's report in the Sunday Baltimore Sun.

When the New Jersey legislature voted late last year to repeal the death penalty, it did so on the heels of a near-unanimous recommendation from a state commission that said capital punishment was too costly, too arbitrary and too tough on victims' families to justify the risk of an irreversible mistake.

So when Maryland lawmakers created a panel to study the issue, death penalty opponents hoped it would produce a similar recommendation and provide the boost needed to repeal the death penalty law.

Last week, they got that recommendation - but on a much closer vote than in New Jersey, where the margin was 12-1.

The Maryland Commission on Capital Punishment found, by 13-7 vote, that the state should abolish the death penalty because it carries the "real possibility" of executing innocent people and may be biased against blacks.

Once the 23-member commission issues its final report in mid-December, the focus will shift to the General Assembly, where previous repeal efforts have narrowly failed despite a high-profile campaign by Gov. Martin O'Malley.

A look back at the commission's work highlights the divisions among members - and pinpoints issues likely to resurface in General Assembly debates.

And:

The commission is scheduled to hold its final public meeting Thursday from 3 p.m. to 8 p.m. in Annapolis.

"Our Say: One way or another, state needs decision on death penalty," is the Sunday editorial in Annapolis' The Capital.

Capital punishment is the most exhaustively studied facet of crime and punishment. Good researchers can marshal the numbers to prove that the death penalty - like everything else done by the judicial system - has jurisdictional and racial disparities and involves the possibility of error. They can look for evidence of a deterrent effect - or a lack of one.

But beyond this, you run into a moral question: Does the state have the right to take life in this particular way (as opposed to, say, taking lives in war, or allowing police officers to use lethal force in self-defense or to protect the public)? Views on that won't be swayed by a blue-ribbon panel's musings.

In any case, this commission was split, and there will be a pro-death-penalty minority report. We doubt many minds will be changed.

But Mr. O'Malley and anti-capital-punishment legislators really just want to change the views of one state senator on the Judicial Proceedings Committee. Earlier this year, that panel fell a single vote short of sending a death penalty repeal measure to the Senate floor. If a death penalty repeal reaches the full Senate, there's at least a 50-50 chance it will pass. And there seem to be enough votes in the House of Delegates for a repeal. We'll see next year if the report has altered the legislative balance of power.

While we have no problem with capital punishment, what we - and, we suspect, most Marylanders - really want the General Assembly to do is stop procrastinating.

At the moment, the state has the death penalty on the books and five prisoners on death row - but it hasn't executed anyone in nearly three years. It has the worst of both worlds.

Earlier coverage of the Maryland commission's work begins with this post.

"A needed debate," is today's Baltimore Sun editorial.

Maryland's death penalty law violates the most basic standards of fairness and decency. That's the conclusion of a state commission on capital punishment, and it should prompt citizens to insist that lawmakers bring the issue to a vote when they convene in Annapolis next year.

The panel found, among other things, that the death penalty does not deter crime and is arbitrary and capricious, biased against African-Americans and fraught with risk for executing innocent people. During public hearings, the commissioners heard from dozens of witnesses and reviewed a large body of evidence pointing to the inescapable fact that the state's death penalty law is so deeply flawed that no amount of tinkering is likely to bring it into accord with the principals of equal justice.

Opponents of capital punishment, including Gov. Martin O'Malley, have called on legislators to repeal the law; the punishment exacted by a life without parole sentence shouldn't be underestimated. The House of Delegates has indicated some willingness to consider such a measure. But previous bills to abolish the death penalty have been bottled up in the state Senate's Judicial Proceedings Committee, preventing an up or down vote.

This year, lawmakers must find a way to break the legislative logjam.

"Execution foes take heart," is the news report in the Sun, written by Laura Smitherman and Gadi Dechter.

Armed with a recommendation from a state commission to abolish Maryland's death penalty, opponents who have long sought to end the practice are hoping to finally put the matter to rest by pressuring key lawmakers to switch their votes.

With many opinions solidified on the personal and divisive issue, anti-death penalty and religious activists are focused on converting just one lawmaker on a Senate committee. Many Annapolis observers say the panel could be the only roadblock to passing a repeal bill - but getting the single vote needed to send the legislation to the floor for an up-or-down vote is far from certain.

One potential swing vote is first-term Sen. Bryan W. Simonaire, an Anne Arundel County Republican who attended Bob Jones University and belongs to the National Rifle Association. The engineer, who has voted against a repeal in the past, is regarded by liberal Democratic peers as a thoughtful legislator.

"I'm truly interested in seeing the facts," Simonaire said. "I'm going in with an open mind."

And, for some very inside legislative baseball:

Even the bill's chief sponsor acknowledges that movement during the General Assembly session that will begin in January may be unlikely. But Sen. Lisa A. Gladden, a Baltimore Democrat, said the commission's report will add momentum to repeal efforts. She predicted that such a bill will reach O'Malley's desk by the end of his first term in 2010.

"There's a movement afoot in the state that says consistently now the death penalty doesn't work," said Gladden, a public defender. "We're now in a position to figure out how you get it to the governor's desk."

O'Malley's administration and activist groups have tried to get a feel for vote tallies on the issue. Apart from the Senate Judicial Proceedings Committee, where a repeal bill died on a tied vote last year, activists say they have the votes to get a bill out of the House Judiciary Committee and to win passage in the full House of Delegates.

That scenario was confirmed by House Speaker Michael E. Busch yesterday. "If a bill moves favorably out of the Senate, I believe there are likely a majority of 71 votes in the House in support of a repeal," said Busch, who has supported the death penalty with some reservations and said he will review the commission's findings before making a "personal decision."

Activists think they have the needed support, but Senate President Thomas V. Mike Miller said his chamber is "very evenly divided," and he doesn't think the commission report is likely to change anyone's thinking. Miller, who supports the death penalty and wields enormous sway over which bills get a vote in his chamber, said he doesn't plan to lobby his colleagues.

Another potential swing committee vote is Sen. Alex X. Mooney, a Frederick County Republican and Roman Catholic who also has pledged to keep an open mind on the issue. Sen. Norman R. Stone Jr., a Baltimore County Democrat and Catholic, also has been lobbied hard to change his stance. But he said yesterday that while he's "really torn," he continues to believe the death penalty is a deterrent to violent crime.

Gladden said it might be necessary to bypass the committee and petition the bill directly to the Senate floor - though she distanced herself from the rare and controversial parliamentary move that would subvert the power of the leadership structure controlled by Miller.

Annapolis' The Capital carries the AP report, "Governor pushes for repeal of death penalty."

Gov. Martin O'Malley said Thursday that he hopes a state panel's recommendation to repeal capital punishment will cause lawmakers to take "a fresh look" at the issue and approve banning the death penalty in Maryland. However, the Democratic governor says he's not sure whether enough of the legislators who have supported capital punishment in the past will change their minds.

The state commission announced its recommendation Wednesday, saying capital punishment doesn't deter crime and is affected by racial and jurisdictional disparities.

"I think the proper course of conduct now is for us to take a fresh look at the death penalty, ask ourselves why we need to continue to have the death penalty on the books," O'Malley told reporters Thursday. "It is ineffective. It does not work."

O'Malley said the state is on course for a significant reduction in homicides.

"And you know what? The death penalty had absolutely nothing to do with that lifesaving and that life-guarding progress," the governor said, noting that there have been no executions this year.

O'Malley said he looked forward to reading the report, which is scheduled to be released next month and said he hoped it would help persuade death penalty supporters. "I think wise people can change their mind and I think that is a sign they are becoming wiser."

Earlier coverage begins with this post.

"DeKalb, Fulton juries resist giving death penalty," is the report in Sunday's Atlanta Journal-Constitution, written by David Simpson and Steve Visser.

After the death penalty trial of Brian Nichols, Fulton County District Attorney Paul Howard plans to seek the ultimate punishment in eight more murder trials.

In adjacent DeKalb County, District Attorney Gwen Keyes Fleming’s office is scheduled to make its opening statement in a death penalty trial Monday. And she is seeking death sentences in two more pending cases.

Getting death sentences in those cases could represent the turning of a historical tide. Fulton County juries went eight years without approving a death sentence until this summer. In DeKalb County, the last death sentence was 19 years ago.

Both counties have large African-American populations, and numerous studies and opinion polls have found blacks more likely than whites to suspect bias in the criminal justice system and to oppose the death penalty.

But Howard and Keyes Fleming, both African-American prosecutors, argue that some cases are heinous enough to merit a death sentence.

Howard’s office won a death sentence this summer for a man who shot to death three people, including a child.

Keyes Fleming approved a death penalty prosecution against Clayton Ellington, who goes on trial Monday on charges he hammered to death his wife and twin 2-year-old sons.

DeKalb has two other death penalty cases pending: one involves another child killing, and the other the slaying of two police officers.

Keyes Fleming declined to be interviewed about jurors’ attitudes toward the death penalty, instead issuing a brief statement expressing her “faith in all our jurors.”

In Fulton County, Howard’s white predecessor, Lewis Slaton, complained that jurors were too reluctant to impose the sentence.

Howard, who was elected to replace Slaton in 1996, said the county’s jurors now are becoming “educated” on the appropriateness of the death penalty in heinous cases.

“For a long time in our county, we never had a death penalty case at all, and we are at an early point in our county of asking our citizens to do that,” Howard said.

Support Is Waning for Death Penalty

That's the title of an OpEd in today's Richmond Times-Dispatch written by two noted conservatives, Richard  Viguerie and Brent Bozell.  LINK

We lifelong conservatives and Tea Party supporters recently urged the death sentence for Teresa Lewis in Virginia be commuted to life in prison without parole instead.

We are among a growing number of conservatives who have questions and reservations about the death penalty, believe it is no longer a necessary form of punishment based on either Lockean or biblical principles, or oppose it outright.

Around the country death sentences are dropping, and support for the death penalty is waning. This trend is not limited to bleeding-heart liberals and criminal coddlers.

We urge our fellow conservatives to at least consider some issues when contemplating the death penalty.

The Old Testament required the death penalty for certain sins and a litany of offenses. In John 8 of the New Testament, the Pharisees confronted Jesus about a woman ready to be stoned for adultery. Jesus, sensing a trap they laid on a conflict between the Old Testament and Roman law, said: Let him who is without sin cast the first stone.

We believe John 8 of the New Testament shows that Jesus did not consider the death penalty mandatory punishment for sins, and certainly not unless the process complied with God's law. Deuteronomy 17:6 requires more than one witness to convict.

We also believe conservative Lockean principles do not compel the death penalty.

John Locke's Second Treatise on Government offers a justification of the State's taking the life of someone who is guilty of a heinous crime. Locke, on whose principles conservatism is built, believed the death penalty was a justifiable punishment for two reasons: protecting society (self-preservation) and deterrence.

And:

We now, however, have maximum security prisons that were incapable of being built in Locke's time. Society may protect itself without putting a human to death as it would a wild animal. Since we believe each person has a soul, and is capable of achieving salvation, life in prison is now an alternative to the death penalty.

Under Locke's other reason, deterrence, punishment should be severe enough to discourage criminal acts. We certainly agree. However, some data show the death penalty does not act as deterrence.

In fact, the data seem to indicate murder and other heinous crimes may be lower in jurisdictions that do not have the death penalty. That's not proof, of course, but we believe death penalty proponents bear the burden of proof that the ultimate punishment is in fact a deterrence.

From our conservative perspective, there are other reasons we oppose the death penalty. It is an expensive government program with the power to kill people. Conservatives don't trust the government is always capable, competent, or fair with far lighter tasks.

In a news article by Frank Green and Reed Williams, the Times-Dispatch reports, "Many factors figure in death-penalty cases."

A smiling Sam McCroskey was led from Prince Edward County Circuit Court last month after a plea deal won for him a life sentence instead of execution for bludgeoning four people to death -- three while they slept.

Three days later, Teresa Lewis, a Pittsylvania County grandmother, was executed by injection for a double murder-for-hire in which she did not pull the trigger.

The different outcomes were the latest to confound and upset Virginians who support or oppose the death penalty.

Experts say many factors, not all of them apparent, figure in death cases, including the sentiments of jurors in the 120 jurisdictions that elect commonwealth's attorneys, the wishes of the victims' families, the strength of evidence, and the abilities of the prosecutor and defense lawyers.

From the initial decision by a prosecutor to seek the ultimate sanction to the 11th-hour call by a governor on whether to intervene, discretion plays a huge role.

And:

Even geography is a factor. A capital murder on one side of a county or city line can result in a death sentence and, on the other, life in prison.

In 2001, the General Assembly's Joint Legislative Audit and Review Commission studied 215 capital punishment-eligible cases in Virginia from 1995 to 1999.

In that study, suburban prosecutors sought the death penalty in 45 percent of the cases, while city prosecutors sought execution in 16 percent. In rural areas, the death penalty was sought in 34 percent of the cases.

Howard said it is not surprising that in a federal system of government, some states have the death penalty and some do not.

"But it comes as a little more of a jolt when you find that statistically, the prosecuting decision to ask for the death penalty varies quite substantially from one county or one city from another within a state," he said.

"I'm not sure that makes it unconstitutional, but it adds one more, if you like, arbitrary element to the mix -- the same taking of life in two different places but quite disparate decisions."

The quote above is from A.E. Dick Howard, a University of Virginia law professor and constitutional scholar.

 

More on North Carolina's Racial Justice Act

Today's Wall Street Journal reports, "Death Penalty Goes on Trial in North Carolina," by Nathan Koppel.

Kenneth Bernard Rouse was sentenced to death after a jury found him guilty in 1992 of fatally stabbing 63-year-old Hazel Colleen Broadway. Police found her body in a North Carolina convenience store, the knife still in her neck.

Nearly two decades later, Mr. Rouse, now 47, sits on North Carolina's death row, after filing unsuccessful appeals.

But a new, controversial state law might change that. Last year, North Carolina enacted what's known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a "significant factor" in the death sentence.

About 95% of the state's death-row population, or 152 inmates including Mr. Rouse, filed bias claims by the August deadline, according to the North Carolina attorney general's office. The law also allows future capital-murder defendants to claim racial bias. Convicts whose petitions were successful would instead face life sentences, with no chance of parole.

North Carolina's new law is among the most hotly debated responses to recent criticism of the death penalty. Many states have rethought the sentence amid new genetic evidence that has freed some inmates.

Maryland has suspended its use of the death penalty while it reviews whether lethal injection causes undue pain; Texas last year passed a law to improve legal representation in death-penalty appeals. New Jersey and New Mexico in recent years abolished the death penalty.

But North Carolina has undertaken the most far-reaching effort to date to examine the amorphous question of whether race played an improper role in decisions to seek or impose death sentences.

It likely will be several months before any of the claims are considered by the courts, attorneys said.

And:

Of particular concern to prosecutors and other opponents is that the new law allows murder defendants to try to prove bias through broad statistical evidence, such as data showing that North Carolina prosecutors, on a county-wide or state-wide basis, have sought the death penalty more frequently against black defendants or in cases involving a white victim. "You shouldn't try a case on statistics," said Sarah Stevens, a North Carolina Republican legislator. "Statistics can be manipulated."

Mr. Rouse's bias petition cited two recent studies from the Michigan State University College of Law. One study found that in more than 1,500 cases between 1990 and 2009, North Carolina defendants of all races were more than twice as likely to be sentenced to death if at least one of their alleged victims was white.

Another study concluded that in the cases of the 159 people currently on death row in the state, prosecutors removed blacks from juries at more than twice the rate that they struck prospective nonblack jurors.

Most inmates filing bias claims have cited the Michigan State study, according to Gerda Stein, a spokeswoman for the Center for Death Penalty Litigation, which represents about 40 inmates who have filed claims.

Ashby Jones notes the article in the Journal Law blog post, "North Carolina Law Renews Hope for Death Row Inmates."

Death Row is typically a place for the despondent, the beaten, the worst-of-the-worst.

But in North Carolina, a recent law has given a dash of hope to nearly all Death Row inmates. Last year, North Carolina enacted what’s known as the Racial Justice Act, requiring judges to let any inmate off death row if the judge finds that race was a “significant factor” in the death sentence.

Earlier coverage from North Carolina includes information on the RJA and the SBI crime lab scandal, at the links.  Related links are in the race index, including Pennsylvania's conisderation of similar legislation

 

A Death Penalty Record

That's the title of an editorial in today's Los Angeles Times.  It's subtitled, "L.A. County led the U.S. in capital sentences in 2009. Prosecutors are being overzealous and inhumane."

Harris County, Texas, used to be known as the death penalty capital of the United States, the focus of national and global outrage over an outdated, costly and immoral form of criminal justice. But things have changed: Harris County now has a sentencing record that looks like Denmark's, and the hanging judges (or rather, prosecutors) seem to have relocated to liberal Los Angeles.

A recent report by the American Civil Liberties Union shows that Los Angeles County sent more people to death row last year than any other county in the U.S. -- and more than the entire state of Texas. The trend is particularly odd given that most of the rest of the country is headed in the opposite direction. According to the Death Penalty Information Center, the number of death sentences nationwide last year was the lowest since capital punishment was reinstated in 1976.

A spokeswoman for the L.A. County District Attorney's Office says that 2009, when 13 felons were sentenced to death, was an anomaly because some capital cases took years to get to trial. Indeed, although the number of inmates sentenced to death annually was often in the double digits in the 1990s, there were only six in L.A. County in both 2008 and 2007. But that still doesn't fully explain why the office isn't following the lead of prosecutors in the rest of the U.S., who are pursuing fewer capital cases because in recent years some condemned inmates have been shown to be innocent and the economic costs of capital punishment are becoming harder to bear.

Los Angeles isn't the only killer county in California; death sentences were also up sharply in Orange and Riverside counties last year. The rest of the state, though, seems to be more in line with the national trend, according to the ACLU.

California hasn't killed an inmate in four years because of a legal battle over execution procedures, and its condemned population has soared above 700. That exceeds the capacity of San Quentin State Prison's death row, which is in need of a $395.5-million upgrade. Expenses related to the death penalty cost the state $137 million per year, according to the California Commission on the Fair Administration of Justice, at a time when Sacramento is trying to cope with a $20-billion budget deficit.

Speaking of Harris County, Houston ABC affiliate KTRK-TV posts, "Harris Co. not sending as many killers to death row."  It's by Ted Oberg.

Harris County used to have a reputation as a fast track to death row. Just a few years ago, juries here sent an average of eight people to death row every year. It's down to two now and the last man convicted for killing a Houston police officer isn't one of them. He instead is serving life in prison.

And:

Since that verdict in May 2008, 99 people were convicted for new capital murders in Harris County, but not a single one of them has received the death penalty here.

Harris County used to send the most people to death row in Texas, but not anymore. In the last two years, Harris County juries sent just two killers to Texas' death row. The same number as two other counties, Cameron and El Paso, but less than both Tarrant (three) and Dallas counties (four).

"We had a terrible reputation," said Kathyrn Kase of the Texas Defenders Service where she defends people charged with capital murder. 

A 2005 change in Texas law explains most of the change. Now juries can sentence a killer to life in prison without the chance of parole, and jurors can be certain convicted killers will die in prison without having to be executed. 

"It means that someone is going to prison and stay there," said Kase. 

However, there may be something else underway to explain the decrease - skepticism inside the jury box about the system and the potential for wrongful convictions.

"Jurors are more skeptical of evidence now. The Innocence Project's work and the crime lab scandals across the state have taken their toll," said Kase.

Before the change in law, Texas' death row got an average of 23 new inmates every year. Today that number is just 11. The yearly number of capital murders is virtually unchanged.

Earlier coverage of the ACLU of Northern California's report is here.  More on Harris County, death sentences, and sentencing here, here, here, and in the sentencing index.

A New Report From the ACLU of Northern California

The report is titled, Death in Decline '09; it's also available in Spanish.

A news release announcing the report is, "Death Penalty Sentencing In Decline Across U.S.  California, Los Angeles Fall Back in National Trend Toward Permanent Imprisonment."  An excerpt:

As the United States moves away from death sentences to permanent imprisonment, California—particularly Los Angeles County—lags behind, according to a new report on the death penalty by the ACLU of Northern California (ACLU-NC). In 2009, the number of new death sentences nationwide reached the lowest level since the death penalty was reinstated in 1976.  The Golden State, however, sent more people to death row last year than in the seven preceding years. At the close of 2009, California's death row was the largest and most costly in the United States.

"Nationwide, we are seeing a shift due to growing concerns about the wrongful conviction of innocent people and the high costs of the death penalty in comparison to permanent imprisonment," said Natasha Minsker, death penalty policy director for ACLU-NC. "States like Texas, which used to rival California in the number of new death sentences, have seen a dramatic reduction in use of the death penalty since permanent imprisonment became an option."

The increase in death sentences in California last year was caused by the high number of new death sentences in just three counties, according to the report. The majority of counties in California, like the rest of the nation, have effectively replaced the death penalty. Prosecutorial practices in just three "killer counties"—Los Angeles, Orange and Riverside—accounted for 83% of death sentences in 2009, while those counties represented only 41% of the state's population.

Los Angeles showed the most dramatic break from national trends, ranking as the top death penalty county in the United States. Los Angeles County sent more people to death row in 2009 than in any other year this decade—and more than the entire state of Texas for the same period.

The ACLU report also found a dramatic increase in the number of Latinos sentenced to death in California. The percentage of Latinos on death row has historically been well below the percentage of Latinos in the California population.

"We don't know what is driving this increase in the number of Latinos sentenced to death—unfortunately the state does not collect the data needed to answer this important question," said Ramona Ripston, executive director of the ACLU of Southern California. "What we do know is that all California communities would be better served if California opted for permanent imprisonment as a safe and cost-effective alternative to the death penalty."

The interactive map, noted above, shows the geographic disparity among California counties.  Thanks to Stefanie Faucher of Death Penalty Focus for distributing.

The Virginia Pilot Examination of Capital Costs

"Virginia's budget woes slow down capital case," is the title of Shawn Day's report.  It appeared in the Monday edition.

In the 18 months since he took the helm of the Richmond area capital defender’s office, David Baugh said he has seen about 10 capital cases end in pleas after prosecutors pulled the death penalty off the table. 

The result? Life in prison for the defendants and likely a  savings to Virginia’s taxpayers, who won’t have to foot the bill for defense fees associated with lengthy trials and years of appeals, Baugh said.

With a $3.5 billion budget shortfall, the state has to make some tough decisions on using manpower and money to prosecute the capital cases, he said. Three out of four state capital defender offices are understaffed. State officials already have frozen vacant positions. Now, Baugh said, the state should consider freezing capital punishment as the next cost-saving measure. 

“The state ought to give serious thought to a moratorium on the death penalty until the budget gets straight,”  Baugh said. “You’d be amazed how much the state pays.”

The state paid more than $1 million to cover the defense of  John Allen Muhammad, who was executed last month for one in a series of sniper shootings that terrorized Northern Virginia in 2002.

Other capital cases carry significant costs, although not nearly as high as the bills for Muhammad’s defense. For example, the state paid $150,472 to cover defense expenses for Carl Lee Walton, said Katya Herndon, spokeswoman for the state Supreme Court.

Walton, of Virginia Beach, shot and killed two women at point-blank range in 2005. His first trial, in 2007, ended in mistrial. He was convicted at a second trial in October, but rather than sentence him to death, a judge ordered he spend life in prison without the possibility of parole.

And:

Taxpayers are covering costs of 13 other active capital cases across Virginia. In October, Douglas Ramseur took the helm of the capital defender’s office for the state’s southeastern region. Since then, one attorney has retired from the Norfolk-based office and another announced plans to leave for a position in a private firm.

The departures leave Ramseur and one other attorney to handle four capital cases, including one in Virginia Beach. Although he has received a waiver allowing him to quickly fill one of those vacancies, Ramseur said it likely will be February or March before a new attorney is hired.

“That’s the challenge, finding people who want to take on death penalty cases,” he said. The cases are stressful and the pay is low compared to a position in a private firm, he said.

The turnover in the office was among the reasons a judge agreed to postpone Ted Vincent Carter’s capital murder trial, originally set for Jan. 26. Carter is accused of robbing and shooting a police detective who was trying to buy drugs during an undercover operation last year.

The Pilot also carried the sidebar, "Imperfections abound with death penalty."

The legal decision facing Harvey Bryant - and every other chief prosecutor weighing whether to pursue the death penalty in a murder case - cannot be made in a vacuum when the choice is fraught with moral, political and practical ramifications.

In the 2006 murder at Hilltop Shopping Center, for example, Bryant, Virginia Beach's commonwealth's attorney, had to consider not just whether the crime met the 15 legal criteria for a death case. He also looked at the strength of the case (no eyewitness, but strong circumstantial evidence). He considered the heinousness (the killer had shot his victim in the back as she tried to escape) and the number of victims (one). He listened to the wishes of the victim's family (one wanted death).

Bryant's decision to forgo the death penalty against Christopher Hagans - guaranteeing with Hagans' guilty plea that he spends the rest of his life in prison without possibility of parole - was the right call. He told The Pilot's Duane Bourne that last month's plea agreement brought some finality to Elisabeth Kelly Reilly's family. And it greatly lessens the chance of extensive, costly, time-consuming appeals.

These are gut-wrenching decisions. Bryant acknowledges that. But they're also arbitrary. In another case recently in court - Marcus Garrett, convicted of killing three people at an Oceanfront condominium in 2005 - Bryant sought the death penalty.

And:

Is it fair to weigh how many people died? Is it right to look at who the victims were? Is it fair to consider the strength of the evidence and the time and resources required to pursue the death penalty, a costly process? Does it make a crime less important, a victim's life less memorable, if prosecutors decide that life in a tiny prison cell is punishment enough for the killer?

The shortcomings of this justice system are numerous and obvious. Even if we assumed that all those convicted are guilty - and in many states, including Virginia, that hasn't been the case - deciding whether to pursue an execution is a judgment call. Sometimes, whether a defendant is sentenced to die depends on how well his attorney represented him. Sometimes, it depends on how much publicity the crime received. Sometimes, it depends on race.

Southern Political Report noted the Pilot articles in the post, "The other 'death tax'," by John Tures.

Conservatives are very well versed in the original “death tax,” the term they use to describe the government’s estate tax.  But do they know about the other “death tax?”  It’s the one that costs states millions, leaving many with the unpopular choice of raising taxes or cutting services.  And that’s the policy of capital punishment.

Several years ago, I prepared to give a presentation on both sides of the death penalty at an Arkansas college.  I asked the audience what their opinion was on the subject.  “Fry ‘em,” one said without hesitation, and nobody said anything different.  Perhaps that sentiment translates well on a national level, where polls show 65% of Americans supports the death penalty.  That’s the findings from the latest Gallup Poll.  The number of supporters has remained relatively constant this decade.  In fact, only once (1965-1968) has the public had more death penalty opponents than proponents.  Additionally, 70 percent of states have the death penalty on the books.

One reason folks support the death penalty option is their belief that it is a cheaper alternative than taking care of someone’s basic needs in prison for the rest of their life.  Yet a new study has shown the opposite: the death penalty is a far more expensive option than trials without that capital punishment option, according to Lucile Malandain in the AFP publication, “Ending death penalty could save US millions."

In addition to documenting the high cost of executions, the report also notes the budgetary woes law enforcement officials face.  And the authors report that a survey of police chiefs find that the death penalty is the least effective tool for deterring crime.

The Pilot editorial on capital litigation cost is here.  Related posts are in the cost index.

Texas Death Sentences

"Death sentences have dropped sharply after life without parole became possible," appeared in the Sunday Fort Worth Star-Telegram.  It's written by Aman Batheja and also contains several charts and tables. 

While the debate over capital punishment rages anew in Texas, new inmates going to Death Row have hit a 35-year low as prosecutors are pushing for fewer death sentences and, many believe, juries have become less willing to give them.

Various factors have contributed to a stark decline in death sentences and a dramatic shake-up in the ranking of counties that use it the most.

The biggest game-changer appears to be the introduction of life without parole as an option for juries in 2005, according to several prosecutors and defense lawyers. The change in state law represented a huge shift for jurors in capital cases, who previously were responsible for choosing either the death penalty or a life sentence in which a convicted killer could be eligible for parole in 40 years.

"With life without parole being a viable option now, [juries] feel a lot more comfortable that that person is not going to be let out back into society," Tarrant County District Attorney Joe Shannon said. "We are probably waiving the death penalty more times than we used to because we’re trying to forecast the outcome of the case."

But because of the state’s growing list of exonerations via DNA evidence and other questionable convictions, some argue that juries are simply less willing to send someone to Death Row. State Sen. Eddie Lucio Jr., D-Brownsville, the author of the life-without-parole law, said prosecutors are trying to blame it for their troubles getting Texans to trust a scandal-ridden system.

"It isn’t life without parole that has weakened the death penalty," Lucio said. "It is a growing lack of belief that our system is fair."

In the four years since the introduction of life without parole, Texas death sentences have dropped 40 percent compared with the four years prior, state records show. The number of slayings each year in Texas stayed largely unchanged during that period, according to the Texas Department of Public Safety.

Texas juries sentenced 13 people to death in 2008. Nine others have received death sentences this year, including Erick Davila, who was sentenced in February for gunning down a 5-year-old girl and her grandmother during a birthday party in southeast Fort Worth.

It’s a far cry from 15 years earlier, when juries sent 49 people to Death Row.

And:

A competing theory for why death sentences have declined is that jurors have become more worried about sending an innocent person to Death Row.

Reports of exonerations have popped up regularly in the past three years. Dallas County District Attorney Craig Watkins’ office has helped obtain exonerations for 20 wrongfully convicted defendants in Dallas County.

A poll from Rasmussen Reports released Thursday found that 73 percent of Americans are at least somewhat concerned that some people may be executed for crimes they did not commit.

Researchers at the Texas Defender Service, a nonprofit group that aids defense teams in death penalty cases, say that in capital murder trials in which prosecutors sought the death penalty, the chances of the jury delivering a death sentence have dropped below 50 percent this year. Anecdotally, lawyers say the chance of a death penalty conviction was much higher several years ago and throughout the 1990s.

Scott Phillips, an associate professor of sociology and criminology at the University of Denver who has studied the use of the death penalty, said death sentences have declined nationwide, suggesting that the option of life without parole is just part of the reason in Texas.

"People are obviously concerned about innocence," Phillips said. "People are concerned about cost.  . . .  People are concerned about racial disparity."

Alan Levy, the lead criminal prosecutor in the Tarrant County district attorney’s office, said he believes that reports of questionable cases have affected juries.

"It plays a big role," Levy said. "People are very skeptical."

The article has other data available at the LINK.  Related articles are in the sentencing category index.

Juvenile Cases Being Heard Now - The Editorials

The Court has heard Graham v. Florida earlier this morning, and it is hearing Sullivan v. Florida at this time.  I'll break out coverage into three posts.  This one will contain editorials, the next post OpEds, and the third post will contain oral argument previews.  Transcripts of the oral arguments will be available here, later today.

"Imprisoning a Child for Life," is the title of an editorial in today's New York Times.

The United States could be the only nation in the world where a 13-year-old child can be sentenced to life in prison without possibility of parole, even for crimes that do not include murder. This grim distinction should trouble Americans deeply, as should all of the barbaric sentencing policies for children that this country embraces but that most of the world has abandoned.

The Supreme Court must keep the international standard in mind when it hears arguments on Monday in Graham v. Florida and Sullivan v. Florida. The petitioners in both argue that sentencing children to life without the possibility of parole for a nonhomicide violates the Eighth Amendment prohibition against cruel and unusual punishment.

The court came down on the right side of this issue in 2005 when it ruled that children who commit crimes before the age of 18 should not be subject to the death penalty. The decision correctly pointed out that juveniles were less culpable because they lacked maturity, were vulnerable to peer pressure and had personalities that were still being formed.

Writing for the majority, Justice Anthony Kennedy said the practice of executing 16- and 17-year-olds violated the Eighth Amendment, conflicted with “evolving standards of decency” and isolated the United States from the rest of the world.

The Roper decision took scores of juveniles off death row. It also threw a spotlight onto state policies under which young juveniles were increasingly being tried in adult courts and sentenced to adult jails, often for nonviolent crimes.

The practice is even more troubling because it is arbitrary. Children who commit nonviolent crimes like theft and burglary are just as likely to be shipped off to adult courts as children who commit serious violent crimes. And the process is racially freighted, with black and Latino children more likely to be sent to adult courts than white children who commit comparable crimes.

"The editorial, "Locked away forever," appears in today's Washington Post.

Only 106 prisoners -- 77 of them in Florida -- have been given life without parole for offenses that did not involve a homicide or attempted homicide. Only two people -- including Mr. Sullivan -- have been handed this guaranteed life sentence for a non-homicide committed at age 13.

Most states have not consciously sanctioned imposition of mandatory life terms for juveniles. Instead, these sentences are the warped confluence of an increasing number of prosecutions in which juveniles are charged as adults and the increasing number of crimes that carry sentences of life without parole. The punishments fail to take into account the neurological, psychological and developmental differences that distinguish juveniles from mature adults.

Mr. Sullivan's lawyers make a compelling case that the frequent rejection of such draconian sentences by lawmakers, juries and judges shows "the country's radical repudiation of life without parole for children of this age." The Supreme Court cited similar trends and statistics in a 2007 case in which it ruled that the death penalty was unconstitutional in juvenile cases.

A brief filed in support of Mr. Sullivan by, among others, actor-director Charles S. Dutton and former Wyoming senator Alan K. Simpson, a Republican, makes a powerful case for giving juveniles at least a shot at freedom. Both of these men experienced serious trouble with the law in their early years: Mr. Dutton, who grew up in a housing project in Baltimore, spent time in juvenile facilities and later years in prison for stabbing a man to death and for assaulting a prison guard. Mr. Simpson recalls taking part in arson and other crimes. These men's ascents to the tops of their professions could not have been predicted by their often violent childhoods.

Juveniles who commit serious offenses should face serious penalties. A life sentence in some circumstances may be appropriate. But that sentence should carry with it the opportunity for a second chance.

On Saturday, the Los Angeles Times ran the editorial, "Cruel life in prison."

The U.S. Supreme Court recognized in 2005 that it is unconstitutionally cruel to execute people for crimes committed before they were 18, because youths lack the sense of responsibility that society requires of adults. Their personalities are not yet fixed; they are more susceptible to the negative influences of other people or events. Society's understandable demand for retribution is necessarily blunted when the perpetrator of a crime is a juvenile. Likewise, the threat of a stiff penalty cannot have the same deterrent effect on a youth as it does on an adult; young people have too little experience to fully grasp the consequences of their actions.

The court on Monday will hear arguments in the cases of two Floridians sentenced, in effect, to eventually die in prison because they lack even the slightest chance of release on parole. The same reasoning that bars execution for crimes committed in youth should also block such sentences of life without hope for young people, at the very least for those whose crimes fall short of murder.

Terrance Jamar Graham was 16 when he joined two others in a failed attempt to rob a restaurant; a year later, he was on probation when he participated in a home invasion robbery. His crimes were brutal; he was a repeat offender; and he deserved to be punished, to be imprisoned, and even, perhaps, to be sentenced to life. But not without a chance, in the future, for a court or parole board to review his growth and development and consider another chance at parole.

There are, to be sure, youths who mature earlier than others, just as there are adults who never fully mature. But there must be a line, and age 18 is the point at which society determines people are ready to sign contracts, marry without parental consent, serve on juries and be drafted into the military.

Society can and should countenance a hopeless existence in prison for adult perpetrators. But not for juveniles. The U.S. is, for now, the only nation that has not banned life in prison without parole for juvenile offenders, and more than 2,000 are serving such terms behind bars.

Earlier coverage of the issue begins with this post; next, the OpEd.

Idaho Prosecutors Opting Not to Seek Death Penalty

That's the title of Patrick Orr's report in the Idaho Statesman of Boise.  It's subtitled, "Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005."

For Elmore County prosecutor Kristina Schindele, the decision was simple: The only way Mexico would extradite accused triple-murderer Jorge Orozco to Idaho was if the county agreed not to pursue the death penalty.

But as Ada County Prosecutor Greg Bower faced one of the most high-profile murder cases in his decades-long career, the call was much tougher.

He ultimately wouldn't detail "the many legal and factual reasons" why he is not seeking the death penalty for Daniel Ehrlick and Melissa Jenkins, saying he didn't want to prejudice the jury pool.

But trying to predict exactly what that jury will do is likely a major factor why Bower won't seek the death penalty in the beating and murder of 8-year-old Robert Manwill.

Because in death penalty cases in Idaho since 2003, the jury is the ultimate arbiter. And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.

Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho - double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.

And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences. Not one of Idaho's 42 other counties has taken a death penalty case to trial.

Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others - including one in a child-death case with many similarities to the Manwill case.

And:

To impose the death penalty, a jury must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh the mitigating factors offered by the defense.

Mitigation is not as strictly defined. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma - including mental, physical and sexual abuse.

Today's Twin Falls Times-News carries the editorial, "Capital punishment may be gone for good in Idaho."

Is the death penalty a thing of the past inthe Gem State? Sure looks that way. Ada County Prosecutor Greg Bower's recent decision not to seek the death penalty against the mother and her boyfriend accused of killing 8-year-old Robert Manwill last summer shows just how difficult prosecutors believe it is to convince a jury to put a convicted person to death in Idaho.

And there are other considerations as well. Recession-battered small counties simply can't afford the hundreds of thousands of dollars that prosecuting a death penalty case requires.

In 2002, the U.S. Supreme Court ruled that juries - not judges - must impose capital punishment. For prosecutors, that's a much bigger hurdle.

To apply the death penalty, jurors must unanimously find that the aggravating factors - such as whether the defendant showed an utter disregard for human life or a propensity to commit murder - outweigh mitigating factors offered by the defense.

Mitigation is a murky concept. Defense attorneys can offer evidence of whatever they say may have contributed to what happened. Common mitigating factors include mental health issues or a history of childhood trauma.

Since juries took over deciding the death penalty, only two Idaho counties have asked for capital punishment in murder cases. Ada County - Idaho's biggest and most prosperous - hasn't pursued it since being denied twice in 2005.

And:

Polls have consistently shown that Idaho is one of the most pro-death penalty states in the nation, but just one person in half a century has been executed here - double-murderer Keith Eugene Wells, who dropped all appeals and demanded lethal injection in 1994.

Unless the Supreme Court changes the rules, capital punishment is the longest of longshots for Idaho prosecutors nowadays. And nobody in Idaho - not the governor, the Legislature, the attorney general nor prosecutors - is in a position to change that.

Earlier coverage from Idaho is here.

Maryland Prosecutors Will Not Be Required to Detail Standards for Seeking Death

"Prosecutors won't be called to testify on death penalty," is the title of Andrea Siegel's Baltimore Sun report.

In a setback to a prisoner challenging the state's new death penalty curbs, Maryland's 24 state's attorneys will not be called to testify how they decide whether to seek capital punishment in murder cases.

Lawyers for Lee Edward Stephens, 30, one of two inmates who face the possibility of execution if convicted of the 2006 killing of a state prison correctional officer at the now-closed Maryland Correctional Institute in Jessup, said they were disappointed with a judge's ruling on Monday.

They argued that the changes enacted this year by the General Assembly compound "the unevenness" of the law.

The disparity among counties is a well-known argument the defense had hoped to revive with the prosecutors' testimony.

Prosecutors around Maryland vary in their seeking the death penalty. Studies have documented that those in Baltimore County have pursued it in all eligible cases and those in Baltimore City rarely have.

Anne Arundel County Circuit Judge Paul A. Hackner, who is expected to rule in coming weeks on the constitutionality of the changed law, said he will consider the disparity argument, though it has been shot down by the courts.

The state's highest court has ruled that a defendant has to show that the law discriminated against him, not others, Hackner said.

"The only case that matters is Mr. Stephens' case. Everything else is for the legislature to consider," he said.

"We think the new statute narrows down the class of people that are even eligible for death, but not in a wise way," Michael E. Lawlor, one of Stephens' two lawyers, said after the hearing.

The law was amended this year to limit capital punishment to murder cases where there is DNA or other biological evidence, a videotaped confession or a video recording of the crime.

But prosecutors were pleased. They successfully argued that a week of explanations of how death penalty decisions are made elsewhere is irrelevant to the capital case against Stephens in an Anne Arundel County courtroom. Prosecutors from Montgomery and Prince George's counties joined Anne Arundel County Assistant State's Attorney Sandra Howell in saying the testimony would be a waste of time.

The Capital of Annapolis has, "Is death penalty law constitutional?" written by Scott Daugherty.

Circuit Court Judge Paul A. Hackner already is considering voluminous legal motions surrounding the constitutionality of the new law and defense attorneys plan to file additional motions in the coming weeks.

"The law is freakish and wanton and arbitrary," said Michael Lawlor, an attorney representing Lee Edward Stephens, one of two inmates charged with murder in the July 25, 2006, death of Correctional Officer David McGuinn at the Maryland House of Correction.

The law, which went into effect Oct. 1, restricts prosecutors to seeking the death penalty only in murder cases where they have DNA or other biological evidence, a videotaped confession or a video linking the suspect to the crime.

Earlier coverage includes, Caryn Tamber's report last week in the Maryland Daily Record,"All Md. state's attorneys subpoenaed in capital case."

Lawyers for a capital murder defendant have subpoenaed all 24 Maryland state’s attorneys to testify about how they decide when to seek the death penalty.

The top prosecutors have been summoned to appear in Anne Arundel County Circuit Court over four days next week, starting Monday.

“We are alleging that the death penalty is unconstitutional in Maryland because it’s one statute and it’s one state, yet what will get you death in several counties won’t get you death in a lot of others,” said Gary E. Proctor, one of the lawyers for accused prison guard-killer Lee Edward Stephens.

“If it’s one state, they should have one state method of deciding who goes to death row and who doesn’t,” Proctor said. “The only way I know to demonstrate that is to call all the elected officials.”

Proctor and Lawlor have asked the state’s attorneys to bring any written guidelines they use when determining whether to seek the death penalty in a particular case.

Anne Arundel County Assistant State’s Attorney Sandra Howell has filed a motion to quash the subpoenas and will argue that motion Monday, before the state’s attorneys are scheduled to testify.

“It’s the state’s position that their testimony simply is not relevant to whether the statute is constitutional,” said Kristin Fleckenstein, a spokeswoman for the Anne Arundel County state’s attorney.

The Backlog of Arizona Death Penalty Cases

"Questions of justice in court changes," is the title of Michael Kiefer's report in the Arizona Republic.

Since Maricopa County Attorney Andrew Thomas took office in 2005, he has asked for death sentences in murder cases more than 120 times - more than any other top prosecutor in Arizona history.

His support of the death penalty is unwavering: He has run for election and re-election on the pledge he will continue to seek capital sentences.

Consequently, the number of death-penalty defendants swelled faster than the court system could handle. There just weren't enough judges, prosecutors and qualified defense attorneys available.

At the beginning of 2009, there were 129 defendants awaiting trial in capital cases in Maricopa County, most of them years beyond the 18-month time period in which, under court rules, they are supposed to be tried.

But now, the number of capital cases is being whittled down rapidly.

Faced with a growing backlog and further delays in justice, the Superior Court has made some aggressive changes. Presiding Criminal Judge Gary Donahoe and other leaders of the Superior Court are refusing to postpone trial dates in death-penalty cases and demanding that prosecutors and defense attorneys discuss settlements, which would mean less than a death sentence.

The goal is to apply pressure to resolve cases more quickly, but both Thomas and defense attorneys question whether justice is being best served.

Court officials are standing firm.

"I think firm trial dates settle cases," Donahoe said. "People start looking at their cases when it gets close to their trial date and start making decisions as to whether they want to go to trial or settle it. They can plead, go to trial, dismiss. We don't really care which. But we want to get the case resolved."

So far, the tactic has worked.

Despite his hard-line pledges, Thomas this year has allowed 27 defendants who faced the death penalty to plead to life sentences or less. That's nearly twice as many as last year and eight times as many as in 2005.

Thomas also has filed fewer notices of intent to seek the death penalty, or death notices.

As of today, there are only 100 capital defendants in trial or awaiting trial. There is a schedule to try or settle more than 20 of those cases before year-end.

Prosecutors and defense attorneys alike once complained over the lag time in capital cases. Now, they say that they don't have enough time to prepare for trial, forcing them into agreements to settle.

And:

The death penalty is supposed to be reserved for the worst of the worst murderers.

"The U.S. Supreme Court has long ago said that executing everyone who commits a homicide is not an option," said Larry Hammond, a defense attorney and expert on the death penalty.

In Arizona, the death penalty can be imposed by a jury only against a defendant found guilty of first-degree murder, and the jury must find certain aggravating circumstances. Among the circumstances are cruelty and depravity, cold calculation, multiple murders or other serious crimes, monetary gain, a victim who is a minor, and gang participation.

In the 1980s, there was an average of one capital case filed per year in Maricopa County. In the 1990s, there was an average of nine per year.

By 2004, the numbers began to soar under then-County Attorney Rick Romley, who filed 31 that fiscal year, according to Judge Ryan.

When Thomas took office, the numbers rose even higher: Romley and Thomas combined filed 32 in fiscal 2005. In fiscal 2006, Thomas filed 46 and nearly matched that record last calendar year with 41.

Thomas has filed only 13 more new death-penalty cases this year. "That is cyclical," he said. "Six months from now, we could be having a different conversation."

Thomas says the backlog existed when he took office because "the other actors in the justice system" did not "deliver timely justice."

Generally, it takes from six weeks to six months to try a capital-murder case.

Yet, the criminal bench has scheduled 20 or more cases in the three months between now and the end of the year.

Rather than distribute the capital cases among all the judges - who manage more than 40,000 cases a year - Donahoe said he deliberately grouped death-penalty cases among six judges because of their experience. But it is practically impossible for those judges to get through that many trials. The assumption is that more will settle, and others will be transferred to any of the court's other 10 criminal judges who have taken specialized training in the event they have to pick up a capital case.

Under Arizona law, the prosecutor must file a notice of intent to seek the death penalty within 60 days of arraignment. As the case develops, it needs to be re-evaluated.

In the past two years, the criminal court presiding judges have insisted prosecutors and defense attorneys meet to broach the topic of settlement.

They discuss how likely it is the case will result in a death penalty and, if so, whether there are issues that are likely to trigger appeals. They also predict how a jury will react to the evidence. And they consult with the victims' families, explaining that even if the death sentence is imposed, it may take 20 years to execute the defendant.

"The victims have a constitutional right to a speedy trial," Donahoe said. "They're going to benefit, too, from the speedy trial or holding everyone to the 18 months and getting them firm trial dates."

The push to resolve the backlog of capital cases will continue, as will the debates over the county attorney's right to file death notices and the defendants' rights to a fair - not just speedy - trial.

Today's Mohave Daily News has an AP version of the report, "Backlog of Arizona death penalty cases whittled down."

Maricopa County Attorney Andrew Thomas has sought death sentences in murder cases more than 120 times since taking office in 2005, but death-penalty cases rose faster than the court system could handle.

At the start of the year, 129 defendants were awaiting trial in capital cases in Maricopa County, most well beyond the 18-month time period in which cases are supposed to be tried.

Now, Superior Court judges are refusing to postpone death-penalty trials and are demanding attorneys discuss pleas - which means less than a death sentence.

‘‘I think firm trial dates settle cases,'' said Maricopa County Presiding Criminal Judge Gary Donahoe. ‘‘People start looking at their cases when it gets close to their trial date and start making decisions as to whether they want to go to trial or settle it. They can plead, go to trial, dismiss. We don't really care which. But we want to get the case resolved.''

This year, Thomas has allowed 27 defendants who once faced the death penalty to plead to life sentences or less. He's also filed fewer notices of intent to seek the death penalty.

There are currently only 100 capital defendants in trial or awaiting trial. There is a schedule to try or settle more than 20 of those cases before year-end.

Prosecutors and defense attorneys alike once complained over the lag time in capital cases. Now, they say that they don't have enough time to prepare for trial, forcing them into agreements to settle.

‘‘We're just enforcing the rules,'' Donahoe said. ‘‘When someone has had the case for four years and they want more time, I'm not sympathetic.''

Thomas also has accused the court of applying undue pressure on his office to force settlements.

‘‘They are trying to compel me to plea-bargain these cases,'' he said. ‘‘I believe the justice system should be about getting justice, not about moving cases off the docket at the expense of crime victims and society.''

Of the 43 capital cases resolved this year, only nine resulted in death penalties.

In Arizona, the death penalty can be imposed by a jury only against a defendant found guilty of first-degree murder, and the jury must find certain aggravating circumstances. Among the circumstances are cruelty and depravity, cold calculation, multiple murders or other serious crimes, monetary gain, a victim who is a minor, or gang participation.

In the 1980s, there was an average of one capital case filed per year in Maricopa County. In the 1990s, there was an average of nine per year.

By 2004, the numbers began to soar under then-County Attorney Rick Romley, who filed 31 that fiscal year, according to Judge Ryan.

When Thomas took office, the numbers rose even higher: Romley and Thomas combined filed 32 in fiscal 2005. In fiscal 2006, Thomas filed 46 and nearly matched that record last calendar year with 41.

Earlier coverage of the geographic disparity of seeking death in Arizona begins with this post.  Geographic disparity is generally a function of prosecutorial discretion.

Focus on Gershowitz Scholarship

Diane Jennings notes Adam Gershowitz' latest scholarship in a post this morning at the Dallas Morning News Death Penalty blog, "Creation of statewide death penalty prosecution unit suggested."  An excerpt:

Use of the death penalty in Texas has always been highly subjective, according to where the crime occurs. Dallas County has a history of using the ultimate punishment relatively sparingly while Harris County, until recently, earned a reputation for employing it frequently. Many counties never use it at all, not because prosecutors have misgivings about it, but sometimes because the county simply can't afford it.

South Texas College of Law professor Adam Gershowitz has written an article "Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty " suggesting creation of a statewide death penalty unit to minimize the "geographic arbitrariness" of capital punishment while reducing costs.

His work is noted in this post.

New Scholarship From Adam Gershowitz

University of Houston Law prof Adam Gershowitz' latest work at SSRN is, "Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty."  Here's the abstract:

In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.

Earlier work by Gershowitz is noted here; related posts in the scholarship index.

North Carolina Senate Takes Up Racial Justice Act

The North Carolina Senate convenes at 3:00 pm (EDT) today and SB 461is on the agenda.  The Senate passed an earlier version of the legislation.  If the Senate concurs today with changes made in the NC House of Representatives, the measure would go to the governor.  If the Senate does not concur, a conference committee of House and Senate members would work out differences.  A conference committee report would then require approval by both bodies.

The Senate session will be webcast here.

Today's News & Observer carries the OpEd, "Race as a death penalty factor," by Matthew Robinson, an Appalachian State University prof and author of Death Nation: The Experts Explain Capital Punishment.

Several arguments are being made against the North Carolina Racial Justice Act, which is up for a state Senate vote. They include these: a law cannot assure racial justice; patterns of racial disparities are not useful for demonstrating evidence of racial discrimination in particular cases; other plausible explanations for racial disparities exist besides bias on the part of prosecutors, judges and juries; and there are other serious problems with the death penalty that this bill does not address.

A response to these claims is warranted. First, the law does not assure racial justice, but it can help bring it about. The law is one of the most powerful legitimate weapons we can use to rid our state criminal justice practice of racial bias. It does not address the roots of the problem -- stereotypes, fear and even racism -- but it is a start. And the bill provides a potential remedy for those who can conclusively demonstrate to a judge that race played a role in their case.

Second, patterns of racial disparities are relevant. In North Carolina, where killers of whites are far more likely to be sentenced to death than killers of blacks (especially when the offender is black), this pattern of racial disparities is made up of individual cases, cases like that of black man Robert Bacon who was sentenced to death by an all-white jury even as his white co-defendant did not receive a death sentence. In the absence of such individual cases, there would be no pattern of racial disparities.

And:

Here's the bottom line. North Carolina has a unique opportunity to become only the second state in the country to pass such a law. Further, we have the chance to correct an error made by the U.S. Supreme Court when it ruled against Warren McCleskey in 1987.

McCleskey showed that, in the state of Georgia, 11 percent of people charged with killing whites received the death penalty, but only 1 percent of those charged with killing blacks received the death penalty. Even after controlling for legally relevant variables, killers of whites were four times more likely to receive a death sentence than defendants charged with killing blacks. In interracial murders, the death penalty was assessed in 22 percent of the cases involving black defendants and white victims, versus only 3 percent of cases involving white defendants and black victims.

The main source of the disparities? Prosecutorial discretion. Prosecutors sought the death penalty in 70 percent of cases involving black defendants and white victims, versus only 9 percent of cases involving white defendants and black defendants.

In the McCleskey case, the court ruled that statistics such as those offered by Warren McCleskey did not rise to a constitutional violation based on racial discrimination, and that the burden rests on the defendant to show purposeful discrimination by the prosecution or state. Thus, today in Georgia, nearly the exact disparities based on race are still found.

Two important studies illustrate similar racial disparities in North Carolina. The first (1993-1997) found that the "odds of receiving a death sentence rose by 3.5 times or more among those defendants ... who murdered white persons." The second (2000-2006) found that "blacks who kill whites were 14 times more likely to be sentenced to death than whites who kill blacks."

Robinson's book is noted here.

Today's Ashville Citizen-Times reports, "Families of murder victims support Racial Justice Act."  It's written by Jon Ostendorff.

Supporters of a law that would allow evidence of racism to be used in overturning death penalty convictions asked lawmakers on Monday to send the measure on to the governor.

The state Racial Justice Act has passed the House and is set for a Senate vote today.

The law would allow people convicted of capital murder to demonstrate that race played a significant role in their death sentences or in a prosecutor's decision to seek the death penalty.

Statistical evidence, such as the racial makeup of a jury, could be used in court to help prove bias. A judge could replace a death sentence with a sentence of life imprisonment without parole.

The bill has support from churches, the NAACP and regional politicians. Asheville Mayor Terry Bellamy has pledged her support, and Sen. Martin Nesbitt, D-Asheville, is a co-sponsor.

Family members of murder victims spoke out in support of the law Monday at the Haywood County Courthouse in Waynesville.

Asheville resident Megan Smith's father and stepmother were killed in Pennsylvania in 2001 by her adopted stepbrother and one of his friends, who is now on death row.

She opposes the death penalty.

“I know that the death penalty is a broken system,” she said. “The death penalty is not bringing justice to my family.”

Jean Parks, of Fletcher, also knows what it's like to lose a family member to violent crime. Her sister, Betsy Parks Rosenberg, was murdered in Raleigh in 1975. She was a student at UNC Asheville at the time.

Parks said if North Carolina is going to have capital punishment, the system needs to be fair.

Of the 163 inmates on the state's death row, more than half are African-American. Only 20 percent of the state's population is African-American.

The Murder Victims' Families for Reconciliation organized the event Monday on the courthouse steps. The group was in Waynesville trying to get its message to state lawmakers in the far western counties.

Earlier coverage of the RJA begins with this post.

John Holdridge on Geographic Disparity of the Death Penalty

The director of the ACLU Capital Punishment Project writes, "Sentenced To Death Because Of Where You Live: The Death Penalty’s Geographic Bias," at the ACLU Blog of Rights.

Americans have become increasingly troubled by the profound flaws in our capital punishment system, including its astonishing error rate and its racial and socioeconomic biases. They are less aware of its disturbing geographical biases.

The United States does not practice capital punishment. Isolated parts of it do.

The death penalty is primarily a southern institution, as Death Penalty Information Center statistics establish. The State of Texas alone has accounted for over 37 percent of all executions in the U.S. since 1977, which marked the beginning of the nation’s modern death penalty era. Of the 32 executions carried out so far this year, Texas is responsible for half of them.

Southern states accounted for 95 percent of the executions in 2008 (Texas alone accounted for about 50 percent). In 2007 (the last year for which statistics are available), juries returned 115 death sentences throughout the nation and, of these, over 60 percent were in the South.

However, geographic bias does not exist only from region to region and from state to state. There are substantial geographic biases within states themselves. A 2002 study found that more than two-thirds of American counties have never imposed the death penalty since 1977. Only 3 percent (92 out of 3,066) of the nation’s counties account for 50 percent of its death sentences in that 32 year period.

In Texas, over 33 percent of the prisoners on the state’s death row today come from one county — Harris County, where Houston is located. Harris County has rightly been called the capital of capital punishment. An Amnesty International publication from 2007 reported that if Harris County were a state, it would rank second behind Texas in total number of executions since 1977.

And:

The overwhelming geographical bias of our capital punishment system is further evidence that the system is arbitrary and capricious — and fundamentally unfair. It is one more reason for us to join the rest of the civilized world and repeal our capital punishment statutes.

As I have noted in the past, approximately 90% of the executions and death sentences in Texas come from 33 of Texas' 254 counties.

Related articles are in the goegraphic disparity category index.

Capital Prosecutions in One Louisiana Parish

Today's New Orleans Times-Picayune carries the report, "Surge in death penalty prosecutions slows in Jefferson Parish," written by Paul Purpura.  Here are two excerpts from the lengthy article:

After Louisiana reinstated the death penalty in 1975, Jefferson Parish juries sent 28 people to death row at Angola.

Half of those inmates have been sent there since Jefferson Parish District Attorney Paul Connick Jr. took office in 1997. By the time his first six-year term ended, 10 people were sentenced to death.

But what began as an aggressive pursuit of capital prosecutions has declined in recent years, leading court observers to question whether Connick is shying away from the death penalty or if Jefferson is mirroring a national trend.

It has been five years since a Jefferson Parish jury recommended a death sentence and four years since prosecutors tried a capital case. While suspects have been indicted on capital murder charges in some high-profile homicides, prosecutors later reduced the charges to second-degree murder, which carries a mandatory life sentence.

Now, one person is charged with capital murder in Jefferson Parish, a paltry figure compared to neighboring New Orleans, where 31 people face first-degree murder charges.

While Connick acknowledged that his office is pursuing fewer capital prosecutions, it does not reflect a change in his philosophy.

And:

But observers say Jefferson Parish is in line with a national trend away from capital prosecutions, which have declined 65 percent since 1999, according to the Death Penalty Information Center, a nonprofit organization in Washington.

"This is certainly not a unique response by Paul Connick," said capital punishment opponent Nick Trenticosta of the Center for Equal Justice in New Orleans, which steers death sentence appeals. "It's a response all across America. Offices all over the country are cutting back on the death penalty."

"Executions are down, death sentences are down, capital prosecutions are down," said lawyer Denny Leboeuf of New Orleans, a death penalty opponent who directs the ACLU's John Adams Project in New York.

In Jefferson, prosecutions for second-degree murder are the norm, even as police routinely book suspects with first-degree murder.

"The trend in these numbers, as across the country, reflects the emerging view that life without parole is an incredibly serious punishment and that juries, prosecutors, the public and family members of victims are increasingly preferring the certainty of a life sentence over the confusion and delays, multiple retrials and high error rates that are inherent in capital cases," said Jelpi Picou, executive director of the Capital Appeals Project in New Orleans.

California Counties Diverge on Death Penalty

That's the title of Phillip Reece's article in today's Sacramento Bee.  LINK

Murderers are more likely to be sentenced to death in conservative California counties, particularly in the southern part of the state, according to a Bee analysis of recent data from the state attorney general's office.

From 1998 to 2007, prosecutors obtained about one death penalty conviction for every 100 murders statewide, the figures show. In Orange County, the rate was twice as high; in Riverside County, it was three times as high.

At the same time, San Francisco and San Mateo counties haven't sentenced anyone to death in 15 years (with the exception of the Scott Peterson case transferred to San Mateo from Modesto.)

Overall, the five large California counties with the highest rate of registered Republicans sentenced murderers to death almost three times as frequently as the five counties with the lowest rate of Republicans.

There are major exceptions. Largely Republican Placer County hasn't issued the death penalty in 20 years while largely Democratic Alameda County condemns murderers somewhat frequently.

And:

Most murders can be charged as death penalty crimes, said UCLA law professor Stuart Banner, so it often comes down to the preference – and politics – of a district attorney.

"District attorneys are elected," said Banner, author of "The Death Penalty: An American History." "The death penalty is more popular in some counties than in others."

The expense of capital cases also can deter prosecutors in both very small and very large counties, Banner added.

Riverside County District Attorney Rod Pacheco, a former Republican assemblyman, noted that many convictions in the state's figures came or started under his predecessor's watch. His office now spends more time listening to law enforcement, victim's families and even defense attorneys before making a decision about whether to seek the death penalty, he said.

Nonetheless, noted UC Berkeley law professor Elisabeth Semel, Pacheco seems to have continued prosecuting death penalty cases at the same rate as his predecessor.

Pacheco said he did not know whether his approach had shifted the numbers, but noted that his constituency generally is tough on crime, as is he.

"The people here have a very different view of public safety than the people in San Francisco," Pacheco said.

Yesterday's SacBee preview is noted here.

Sacramento Bee Examines Geographic Disparity of California Death Sentences

The SacBee is previewing an article that will be in tomorrow's print edition.  It contains an interactive map examining the geographic disparity of death sentences in the state, at this LINK.

Several factors can affect how often prosecutors obtain death penalty convictions. These include, but are not limited to, how often prosecutors seek the death penalty, law enforcement's murder arrest rates, the makeup of juries and the frequency of particularly heinous killings.

The web version also contains brief interviews with:

Interview with Riverside County District Attorney Rod Pacheco

Has that changed the number of death penalty prosecutions?: Every case is different. I don't know if we've had more or less (death penalty prosecutions) ... The people here have a very different view of public safety than the people in San Francisco.

Interview with ACLU researcher Natasha Minsker.

How much does the political leanings of juries come into this?: I have seen no evidence that political beliefs play a part in this. In Northern California, Alameda County stands out as having the most convictions, and it is one of the most progressive counties in the state. ... (Because the voir dire process weeds out jurors who say they can't impose the death penalty) the juries you end up with in Alameda County are all still pro-death penalty.

More on the California debate begins here.  I'm looking forward to the SacBee's full coverage tomorrow.

North Carolina Racial Justice Act Advances

"Committee OKs bill meant to help defendants challenge death penalty," is the title of James Romoser's report in today's Winston-Salem Journal.

A bill that would establish a new pro­cedure for defendants to challenge the use of the death penalty advanced yesterday in the General Assembly.

The bill, known as the "North Carolina Racial Justice Act," was approved 7-5 by a committee in the state House. It now moves to a different committee before coming up for a vote in the full House. The Senate passed a previous version of the bill last month.

Supporters of the bill say it would give defendants and death-row inmates clear legal channels through which they could argue that the application of capital punishment was racially motivated, either on the part of a prosecutor who sought the death penalty or on the part of a jury that imposed the death penalty.

"It takes steps toward eradicating the problem of racial bias in the capital-punishment process," said Jeremy Collins, the campaign coordinator of the N.C. Coalition for a Moratorium.

Two of the bill's chief supporters in the legislature are two Winston-Salem Democrats: Rep. Earline Parmon and Rep. Larry Womble.

Opponents say that the bill, while well-intentioned, goes too far because it would allow defendants to use statistical evidence from previous cases to show racial bias.

For instance, if a black death-row inmate proved that, in his county, other black defendants were significantly more likely than white defendants to be sentenced to death, that would be enough for a judge to throw out the inmate's death sentence.

The sentence would be converted to life in prison without parole.

And:

Supporters of the bill said that there is vast evidence suggesting that race has historically been a factor in the use of capital punishment, both nationwide and in North Carolina.

The bill had gotten held up last week in the House committee because many supporters and opponents wanted to speak on the bill.

It had appeared that the bill would be stalled for at least two weeks, but the committee's chairman scheduled a new meeting yesterday afternoon for the committee to take up the bill again.

After about 45 minutes of debate, the vote was taken and the bill was narrowly approved.

Raleigh's News & Observer carries a brief AP dispatch, "Racial bias procedure OKd in House committee."

A House panel has agreed to legislation providing a way for defendants in North Carolina to try to prove racial bias put them on death row or caused a prosecutor to seek a capital conviction.

The House Ways and Means Committee voted 7-to-5 Monday for the Racial Justice Act. It now heads to a judiciary panel. The Senate approved a different version of the bill.

A defendant could go to court and if successful get a death sentence reduced to life in prison. The defendant could use statistics and other evidence.

Earlier coverage begins with this post.

Death Penalty Restricted

That's the title of an OpEd by Maryland State Senator Ron Dyson at Southern Maryland Online.  LINK

Maryland is one of 36 states with a death penalty. This year, legislation to repeal the death penalty is being considered in Maryland and seven other states - Colorado, Kansas, Montana, Nebraska, New Hampshire, New Mexico and Washington.

In Maryland, 53% of the people support the death penalty. I have always opposed the repeal of the death penalty in Maryland.

The Maryland Commission on Capital Punishment, established by the 2008 General Assembly, is the fourth time in the past 15 years that a study of the death penalty was ordered by the Legislature. Two of the studies found that racial disparity in the death penalty existed and continued to exist. The third study found that there was geographic as well as racial disparity. None of these studies recommended that Maryland keep or repeal the death penalty. The Maryland Commission on Capital Punishment voted 13 to 9 to abolish capital punishment.

The reasons for abolishment cited by the Commission included: the racial and geographic disparities that exist…the costliness of death penalty appeals process…the toll the long process takes on survivors…the lack of persuasive evidence that the risk of execution is a deterrent to crime…and the unavailability of DNA evidence in some cases opens the real possibility of wrongly executing an innocent person.

And:

As an opponent of death penalty repeal, I was going to cast my vote against the bill. But three crucial amendments to the bill were approved to restrict the use of the death penalty and nearly abolish the chance of executing an innocent person. The amendments prohibit death sentences based solely on eyewitness testimony and require either DNA or a videotaped confession or a videotaping of the crime.

The Innocence Institute, which investigates wrongful convictions, revealed that of 38 cases in which wrongfully convicted persons were exonerated through DNA evidence, 2/3 of the original convictions were based on eyewitness testimony. In one case, five separate witnesses wrongly identified the defendant. In a 1992 study by Loftus and Doyle recorded verdicts in a mock trial. With no eyewitness identification, 18% of the jury verdicts were guilty. With eyewitness testimony, the guilty verdicts rose to 72%. Several studies found that juries tend to base their decision on a confident eyewitness even when other factors, such as poor visibility or bias, question the validity.

DNA has propelled the criminal investigation process light years ahead of where it was. In 1993, Kirk Bloodsworth of Maryland was the first person on death row to be found innocent by DNA evidence. Bloodsworth was wrongly convicted in 1985 of the rape and murder of a 9-year old child. He always claimed he was innocent. DNA proved it.

In the heart of most people, including this Senator, who supports the death penalty, is the nagging fear of executing an innocent person. The three amendments added to the repeal bill keep the death penalty law, but significantly limit its use and the chances of executing the wrong person. To me, the bill with the amendments was legislation I could support. I voted for the amended death penalty bill.

Earlier coverage of the Maryland legislation begins with this post.

More on Cost and Geographic Disparity From Associated Press

"America has cultural divide on death penalty," is the AP report via the International Herald Tribune.

Roe Wilson sounds at peace with the fact that she has handled or supervised 91 executions in the 20 years she has overseen capital case appeals.

"I've seen what these defendants have done to people," said Wilson, an assistant district attorney in Harris County, Texas -- the busiest death penalty county in America's busiest death penalty state.

Several cases in particular come to mind for her, including a man accused of killing his adoptive parents, two sisters and brother-in-law. The victims were suffocated or fatally beaten with a crowbar, then bound with tape and plastic ties and burned. He died proclaiming his innocence.

"When crimes happen, what you read in the newspapers is so antiseptic. They don't say what the bodies looked like," she said.

Wilson's views are not unusual, particularly in America's conservative Southern states where the biblical view of an eye for an eye rings true. Such states remain committed to capital punishment despite signs that other parts of the U.S. are moving away from it.

Countrywide, death sentences and executions have been on a steady decline for more than a decade. Legislation being debated in several states to abolish capital punishment is getting more attention than in the past.

President Barack Obama has said he is in favor of executions only in extreme cases, but has otherwise mostly avoided the issue and has no direct sway over states' death penalty laws. But he could appoint more liberal justices to federal courts who are less likely to impose death sentences.

Observers caution that the death penalty is not likely to end soon in a country where polls still show 60 percent of people support executions. They point to the mostly conservative American South as the major reason.

And:

Of the 1,151 executions nationwide since the U.S. Supreme court reinstated the death penalty in 1976, the vast majority -- 951 -- occurred in the South, according to the nonprofit Death Penalty Information Center. Texas alone -- the home state of former President George W. Bush -- had 431.

Eleven states out of the 36 that have it are considering abolishing the death penalty, though one of the states with pending legislation is Texas, and the bill is not expected to get far. The remaining 10 have had a total of 30 executions since 1976. And two of those, New Hampshire and Kansas, had no executions at all.

Death penalty opponents point to the fact some of these bills have been provoking more of a debate than in past years as a sign of progress, an indication that minds are changing.

In part, recent death row exonerations prompted by improved methods of testing physical evidence, including DNA samples, have planted seeds of doubt. And changes to state laws also have made a difference, as more states have been giving juries the option of imposing life without parole rather than death.

Financial necessity also is a driving factor. The death penalty is an expensive proposition -- trials often require extra lawyers for appeals and higher security costs -- and cash-strapped states are responding to the notion that it is cheaper to imprison people for life. However once the recession recedes, so could the urge to abolish capital punishment.

"They're getting debate, and that is highly unusual," said Richard Dieter, executive director of the Death Penalty Information Center. But "this is not an indication that the death penalty is going to be gone in two years. It's a ferment, not a revolution."

What will likely happen is that the cultural divide between the regions will grow wider. In the past, close to 80 percent of executions have occurred in the South, now the percentage is closer to 90, Dieter said.

"If it's being practiced just in one region it becomes more suspect," he said.

StandDown's geographic disparity index has earlier coverage on the subject.

In Maryland

State Legislatures are beginning to crank up, and the death penalty is front and center in Maryland.  The Sunday Washington Post carried the OpEd, "A Moral Test for Maryland Legislators," by The Right Rev. John Bryson Chane and the Right Rev. Eugene Taylor Sutton, respectively, the Episcopal bishops of Washington and Maryland.

As the Maryland General Assembly prepares to convene on Wednesday, we hope that legislators will decide against the death penalty in Maryland. Doing so would represent an enormous moral failure for the state and for civil society.

For decades, many religious groups have voiced strong public opposition to capital punishment, believing that every human being is given life by God and that only God has the right to deny life. Of course, we understand that the state must seek justice and prosecute wrongdoing, but we cannot condone the state pronouncing a sentence of death for wrongdoing -- no matter how violent and brutal the crime. There is simply no moral justification for the state to execute a child of God in the name of justice.

The Episcopal Church has carefully studied the application of the death penalty in many states. In every case, it has concluded that the death penalty is unjust and ineffective. It is immoral to any who are seriously committed to the ethics of Jesus, who continually forbade violence as a means to solve problems caused by evil.

The Sunday Baltimore Sun carried the editorial, "The Annapolis agenda."

Maryland lawmakers return for their annual 90-day legislative session in Annapolis this Wednesday with some trepidation. The anxiety-prone need only wait one week for the genuine discomfort to begin. That's when Gov. Martin O'Malley must submit his budget for the next fiscal year, and it's shaping up to be a headache and a half.

And:

Here, in brief, is some of what legislators should be able to accomplish in the next three months:

Death penalty. With the governor's task force's findings in hand, Maryland must repeal capital punishment. The evidence is all too clear: The inequities and opportunities for error are too great while a sentence of life without parole is a workable, more humane alternative.

"Budget deficit will be session's dominant issue," is Liam Farrell's report in the Capital of Annapolis.

Through attempts to ban the death penalty, a successful smoking ban in bars and restaurants and internecine squabbles on changing the rules for DNA collection, the one constant underlying legislative work has been the budget: how much is money is available, will any taxes be raised, and will a new program ever get the funds it is promised?

"Death penalty, police surveillance among laws in play this session," is Steve Lash's Daily Record report.

Sen. Brian E. Frosh, who chairs the influential Senate Judicial Proceedings Committee, said he is prepared to tackle “the two big ones” during the 2009 General Assembly session that begins Wednesday.

The Montgomery County Democrat was referring to legislative proposals to repeal the death penalty and to prevent a repeat of the overzealous surveillance by state police of peaceful protest groups that occurred in 2005 and 2006.

The legislative initiatives follow the release of two state reports issued since lawmakers adjourned in April: one calling for capital punishment’s abolition and the other assailing state police for an “end justifies the means” approach in which officers violated the free-speech and peaceful-assembly rights of protestors in the name of protecting public safety.

Both Frosh and House Speaker Michael E. Busch, D-Anne Arundel, said the Maryland Commission on Capital Punishment’s report could “change the dynamic” that’s led to the defeat of bills to abolish the death penalty in Maryland.

So, too, did Sen. Jamin B. “Jamie” Raskin, D-Montgomery, a commission member and chief sponsor of the legislation that created the panel last year.

The commission, chaired by former U.S. Attorney General Benjamin R. Civiletti, found that death sentences are often tied to the race of the defendant and victim or the location where the murder occurred. The panel also faulted the cost of capital punishment and found it an ineffective deterrent to homicide.

“The commission’s report will change a lot of people’s minds,” said Raskin, who was cautiously optimistic that repeal could come this year. “I think the politics are very close but that there is a strong dynamic against capital punishment.”

Sen. Bryan W. Simonaire, who described himself as a “pretty firm” death-penalty supporter last session, said he will be “open minded” heading into this year’s term.

“I have not made a conclusive, ‘this is the way I’m going to vote,’” said the Anne Arundel Republican. Simonaire said he will continue to research the death-penalty issue and strongly consider his constituents’ views.

“I’m hearing passionately from both sides” of the issue, said Simonaire, a Senate Judicial Proceedings Committee member. “I’m hearing basically 50-50 from my constituents right now on this issue.”

But lawmakers who back capital punishment said the report has not spurred a change in the General Assembly. They noted that the commission’s call for abolition was on a 13-9 vote: a two-vote swing would have blocked the call for repeal.

Earlier coverage of the issue in Maryland begins with this post.

Natasha Minsker on California's Death Penalty

"Prosecutors, Cops and Judges: Ready to Ditch California’s Death Penalty," is her post at California Progress Report.  Minsker is the death penalty policy director for the ACLU of Northern California.  It's a must-read recap of the recent debate in her state.

In opinion pieces that appeared in papers across California last year, former prosecutors, judges and law enforcement officers raised their voices to declare: enough already, it’s time to ditch the death penalty. Let’s consider what they had to say.

Last April, Aundre Herron shared her unique perspective in the Sacramento Bee. Herron began her career as a prosecutor and later became a defense attorney. Yet, nothing in her professional life prepared her for the murder of her older brother Danny. As a result of what Heron calls a “legal technicality,” her brother’s killer was never convicted. She described the experience this way:

Having served on both sides of the criminal justice system, the experience of losing my brother in this unforgettably tragic way, without recourse or retribution, forced me to re-examine the way "execution" and "closure" are joined in contrived alliance, recited by death penalty advocates to justify their point of view. But having survived my brother's murder without the "benefit" of the death penalty, it is clear to me that the death penalty cannot do what its proponents claim.

Former prosecutor Darryl Stallworth came to the same conclusion but through a different path: by asking a jury to sentence a man to death for five gruesome murders. In July, Stallworth’s perspective appeared in the San Jose Mercury News. Stallworth spent 15 years as a prosecutor in Alameda County and considered it a promotion when he was asked to handle a death penalty case. But things changed as he actually worked on the case and learned about the horrific childhood of the defendant who began his life in the maternity ward of a prison. In Stallworth’s words:

What crystallized for me during the trial was something I had slowly been realizing over my career as a prosecutor: I was witnessing a cycle of violence. . . .

And:

Together, these five individuals have more than 100 years of experience working to promote public safety, as prosecutors, law enforcement officers and a judge. Their professional and personal experiences are varied, their reasons are different, but their conclusion the same: it’s time for California to replace the death penalty with condemning the worst offenders to permanent imprisonment, and to invest the hundreds of millions of dollars saved into making our communities safe.

Perhaps it is time we listen.

Earlier posts on the California dialog include:

• In California
• Death Penalty and Race
• Editorial Response to the California Commission
• The Cost of California Death Row

In Arkansas

"Wright: Threet pursues execution inconsistently," is the article from Sunday's Arkansas Democrat Gazette.

Betsey Wright believes Washington County Prosecuting Attorney John Threet is inconsistent in pursuing the death sentence, including the one handed down Friday for Zachariah Scott Marcyniuk.

Marcyniuk, who was sentenced by Circuit Judge William Storey, became the 40th person on Arkansas' death row and the second person from Washington County to go to death row this year.

Wright, a death penalty opponent who spent nine years as former Gov. Bill Clinton's chief of staff, said Threet is erratic in his use of the death penalty.

"I'm confused by the prosecuting attorney's lack of standards and equity," said Wright, who lives in Rogers. "He backed away from the death penalty for two people who killed small children, giving them plea bargains for life without parole. Yet, he pursued a death sentence for this mentally ill man.

"I don't think we know what his standard is. Of course, the fact that each prosecuting attorney operates differently is what makes the death penalty so political and easy to use as a threat to get leverage."

Threet considered, but later backed away from, pursuing a death sentence for Lorita Lanej, a woman who pleaded guilty last year to first-degree murder of her boyfriend's 23-monthold son.

Threet took a similar approach in the case of Abon Tili, a Springdale man who pleaded guilty in March in the killing of a 10-year-old girl.

And:

This year's increase in death sentences in Washington County bucks a national trend, said Richard Dieter, executive director of The Death Penalty Information Center. The nonprofit center, established in 1990 in Washington, analyzes capital punishment issues.

Death sentences nationally began a decline in 2000. The 1990s saw 300 people in the U.S. get death sentences in a typical year. Before the Marcyniuk case, 111 people were given death sentences this year, Dieter said.

"But two death penalties may not be a shift in a county that hasn't had any," Dieter said.

Wright said she wants to see what Threet does with his next capital murder cases and whether he'll pursue the death penalty.

"If he gets lots of public backing, he'll keep doing it," Wright said. "If he gets a voice saying it doesn't make any sense, he may back off. I don't think he's very set in concrete about why he's doing this. He seems to be real back and forth."

Threet said that's not true. He applies the same standards to each case and measures each one based on its specific circumstances, he said. He also takes into account the wishes of victims' family members.

"I'm not saying everyone gets the death penalty who qualifies, and I'm not saying no one in the county should get it," Threet said. "Each set of circumstances has to be looked at.

"It's very difficult to get the death penalty, and it should be. What's got some people stirred up is, there have been two in the same year when it's been almost 30 years before that. I didn't choose those crimes. It's just the way it happened."

The article is noted in Arkansas Times Arkansas Blog, "Who should get death?"

Betsey Wright, Bill Clinton's former gubernatorial chief of staff, wrote me yesterday about the changing standard of capital prosecutions in Washington County. She asked that the remarks be off the record. She apparently decided later to discuss the issue with a reporter in Northwest Arkansas. Wright is a death penalty opponent and spends most of her time these days working with Death Row inmates.

Maryland Commission Issues Final Report

The Maryland Commission on Capital Punishment has issued it's final report, urging legislators to abolish the state's death penalty.

"Report fuels death debate," is the report in Saturday's Baltimore Sun by Julie Bykowicz.

With a high-powered commission recommending abolition of the death penalty in Maryland, opponents of capital punishment gained fresh momentum yesterday as they ready a repeal effort for the General Assembly session beginning next month.

A debate over the hot-button social issue could quickly become one of the most heated fights in Annapolis, with Gov. Martin O'Malley pledging that ending the death penalty is among his top priorities.

The capital punishment panel, headed by former U.S. Attorney General Benjamin R. Civiletti, cited the possibility of executing an innocent person, huge financial costs, and racial and regional biases as compelling reasons to eliminate the punishment.

"There are so many faults, so many flaws within the system that we could not imagine ... ways in which to cure it," Civiletti said yesterday.

The issue of capital punishment has long divided the legislature, and repeal efforts have failed the past two years. A bill died last year on a tie vote in a Senate committee.

But Del. Samuel I. Rosenberg, a Baltimore Democrat and commission member, said he believes both the House and Senate could reach a consensus next year.

"I believe the overwhelming weight of the evidence in the study will have bearing on my colleagues," Rosenberg said. "And Chairman Civiletti will be an extraordinary advocate for the failures of the death penalty, the impossibility of correcting it and therefore the necessity of repealing it."

"Panel recommends repeal of death penalty," is Steve's Lash's report in the Maryland Daily Record.

The commission issued its report and recommendation after holding public hearings in which witnesses debunked popularly accepted “myths” in support of the death penalty, said Civiletti, who was attorney general under President Jimmy Carter and is now a partner at Venable LLP in Baltimore.

Contrary to popular belief, keeping a convicted murderer in prison for life is not more expensive than executing him; capital punishment is not an effective deterrent to homicide; and the use of DNA evidence does not remove the risk that an innocent man will be executed, he said.

The cost of prosecuting a case that results in the death penalty is $3 million, including $1.3 million in prison costs and $1.7 million in adjudication expenses, according to an Urban Institute study issued in March and cited in the commission’s report. By contrast, the cost of a capital-eligible case resulting in a life sentence without parole is $1.1 million, including $870,000 in imprisonment costs and $250,000 in adjudication expenses, the institute found.

Forensic evidence, such as DNA, is not always accurate and can lead to erroneous convictions, the report also stated.

Forensic labs “have a difficult time assuring that accurate findings are made,” the report added. “Scientific evidence is easily contaminated at the scene or in the laboratory, and thereafter skewed (intentionally or unintentionally) by analysts.”

And “no persuasive evidence” exists that the threat of a death penalty deters the type of people who would brutally kill from committing their savage crimes, the report added.

Maryland has had a de facto death-penalty moratorium since December 2006, when the Court of Appeals invalidated the state’s execution protocols because they had not been adopted in compliance with the Administrative Procedures Act. The moratorium will stand unless the governor adopts new protocols following the stringent APA requirements, or the legislature amends the APA to exempt execution protocols.

The Capital of Annapolis has, "State commission recommends abolishing death penalty, by Christopher Carey.

The 23-member commission, which was created by the Maryland General Assembly in the 2008 legislative session, recommended ending the death penalty by a vote of 13 to 9, with one abstention.

"Death is different ... because it's irreversible," said Commission Chairman Benjamin R. Civiletti, who served as U.S. Attorney General in the Carter administration from 1979 to 1981. "It is neither swift, nor fair, nor sure."

Among its findings, the commission said that the costs associated with the death penalty are higher than the costs associated with a sentence of life without the possibility of parole, and that DNA evidence does not necessarily stop an innocent person from being executed.

The Capital also has, "Report: Death penalty costly, biased," by Liam Farrell.

"The death penalty in Maryland is not uniform … It is a happenstance of color and jurisdiction," said Benjamin Civiletti, a former U.S. attorney general and the commission chairman. "Systemically, the system does not treat one proportionately. It doesn't treat similar crimes in a similar fashion."

Among the report's findings on Maryland's death penalty:

Cases involving an African-American accused of killing a white person are 2.5 times more likely to get the death penalty than cases with a Caucasian person accused of killing someone who is also white.

Capital punishment has pronounced regional disparities. Someone in Baltimore County is almost 23 times more likely to get a death sentence than someone who committed a similar crime in Baltimore City.

Capital cases cost almost three times more than non-death penalty prosecution.

Maryland's capital cases had an 80 percent reversal rate from 1995 to 2007.

"For all of these reasons - to eliminate racial and jurisdictional bias, to reduce unnecessary costs, to lessen the misery that capital cases force victims of family members to endure, to eliminate the risk that an innocent person can be convicted - the commission strongly recommends that capital punishment be abolished in Maryland," the report says.

Although the vote on abolishing the death penalty was just 13-9, the separate findings of the committee on issues such as bias had much larger margins, typically gaining almost 20 votes to less than five in opposition.

Earlier coverage of the Maryland Commission on Capital Punishment begins here.

More from Maryland

"Behind the debate," is Jennifer McMenamin's report in the Sunday Baltimore Sun.

When the New Jersey legislature voted late last year to repeal the death penalty, it did so on the heels of a near-unanimous recommendation from a state commission that said capital punishment was too costly, too arbitrary and too tough on victims' families to justify the risk of an irreversible mistake.

So when Maryland lawmakers created a panel to study the issue, death penalty opponents hoped it would produce a similar recommendation and provide the boost needed to repeal the death penalty law.

Last week, they got that recommendation - but on a much closer vote than in New Jersey, where the margin was 12-1.

The Maryland Commission on Capital Punishment found, by 13-7 vote, that the state should abolish the death penalty because it carries the "real possibility" of executing innocent people and may be biased against blacks.

Once the 23-member commission issues its final report in mid-December, the focus will shift to the General Assembly, where previous repeal efforts have narrowly failed despite a high-profile campaign by Gov. Martin O'Malley.

A look back at the commission's work highlights the divisions among members - and pinpoints issues likely to resurface in General Assembly debates.

And:

The commission is scheduled to hold its final public meeting Thursday from 3 p.m. to 8 p.m. in Annapolis.

"Our Say: One way or another, state needs decision on death penalty," is the Sunday editorial in Annapolis' The Capital.

Capital punishment is the most exhaustively studied facet of crime and punishment. Good researchers can marshal the numbers to prove that the death penalty - like everything else done by the judicial system - has jurisdictional and racial disparities and involves the possibility of error. They can look for evidence of a deterrent effect - or a lack of one.

But beyond this, you run into a moral question: Does the state have the right to take life in this particular way (as opposed to, say, taking lives in war, or allowing police officers to use lethal force in self-defense or to protect the public)? Views on that won't be swayed by a blue-ribbon panel's musings.

In any case, this commission was split, and there will be a pro-death-penalty minority report. We doubt many minds will be changed.

But Mr. O'Malley and anti-capital-punishment legislators really just want to change the views of one state senator on the Judicial Proceedings Committee. Earlier this year, that panel fell a single vote short of sending a death penalty repeal measure to the Senate floor. If a death penalty repeal reaches the full Senate, there's at least a 50-50 chance it will pass. And there seem to be enough votes in the House of Delegates for a repeal. We'll see next year if the report has altered the legislative balance of power.

While we have no problem with capital punishment, what we - and, we suspect, most Marylanders - really want the General Assembly to do is stop procrastinating.

At the moment, the state has the death penalty on the books and five prisoners on death row - but it hasn't executed anyone in nearly three years. It has the worst of both worlds.

Earlier coverage of the Maryland commission's work begins with this post.

Reaction to Maryland Commission Call for Abolition

"A needed debate," is today's Baltimore Sun editorial.

Maryland's death penalty law violates the most basic standards of fairness and decency. That's the conclusion of a state commission on capital punishment, and it should prompt citizens to insist that lawmakers bring the issue to a vote when they convene in Annapolis next year.

The panel found, among other things, that the death penalty does not deter crime and is arbitrary and capricious, biased against African-Americans and fraught with risk for executing innocent people. During public hearings, the commissioners heard from dozens of witnesses and reviewed a large body of evidence pointing to the inescapable fact that the state's death penalty law is so deeply flawed that no amount of tinkering is likely to bring it into accord with the principals of equal justice.

Opponents of capital punishment, including Gov. Martin O'Malley, have called on legislators to repeal the law; the punishment exacted by a life without parole sentence shouldn't be underestimated. The House of Delegates has indicated some willingness to consider such a measure. But previous bills to abolish the death penalty have been bottled up in the state Senate's Judicial Proceedings Committee, preventing an up or down vote.

This year, lawmakers must find a way to break the legislative logjam.

"Execution foes take heart," is the news report in the Sun, written by Laura Smitherman and Gadi Dechter.

Armed with a recommendation from a state commission to abolish Maryland's death penalty, opponents who have long sought to end the practice are hoping to finally put the matter to rest by pressuring key lawmakers to switch their votes.

With many opinions solidified on the personal and divisive issue, anti-death penalty and religious activists are focused on converting just one lawmaker on a Senate committee. Many Annapolis observers say the panel could be the only roadblock to passing a repeal bill - but getting the single vote needed to send the legislation to the floor for an up-or-down vote is far from certain.

One potential swing vote is first-term Sen. Bryan W. Simonaire, an Anne Arundel County Republican who attended Bob Jones University and belongs to the National Rifle Association. The engineer, who has voted against a repeal in the past, is regarded by liberal Democratic peers as a thoughtful legislator.

"I'm truly interested in seeing the facts," Simonaire said. "I'm going in with an open mind."

And, for some very inside legislative baseball:

Even the bill's chief sponsor acknowledges that movement during the General Assembly session that will begin in January may be unlikely. But Sen. Lisa A. Gladden, a Baltimore Democrat, said the commission's report will add momentum to repeal efforts. She predicted that such a bill will reach O'Malley's desk by the end of his first term in 2010.

"There's a movement afoot in the state that says consistently now the death penalty doesn't work," said Gladden, a public defender. "We're now in a position to figure out how you get it to the governor's desk."

O'Malley's administration and activist groups have tried to get a feel for vote tallies on the issue. Apart from the Senate Judicial Proceedings Committee, where a repeal bill died on a tied vote last year, activists say they have the votes to get a bill out of the House Judiciary Committee and to win passage in the full House of Delegates.

That scenario was confirmed by House Speaker Michael E. Busch yesterday. "If a bill moves favorably out of the Senate, I believe there are likely a majority of 71 votes in the House in support of a repeal," said Busch, who has supported the death penalty with some reservations and said he will review the commission's findings before making a "personal decision."

Activists think they have the needed support, but Senate President Thomas V. Mike Miller said his chamber is "very evenly divided," and he doesn't think the commission report is likely to change anyone's thinking. Miller, who supports the death penalty and wields enormous sway over which bills get a vote in his chamber, said he doesn't plan to lobby his colleagues.

Another potential swing committee vote is Sen. Alex X. Mooney, a Frederick County Republican and Roman Catholic who also has pledged to keep an open mind on the issue. Sen. Norman R. Stone Jr., a Baltimore County Democrat and Catholic, also has been lobbied hard to change his stance. But he said yesterday that while he's "really torn," he continues to believe the death penalty is a deterrent to violent crime.

Gladden said it might be necessary to bypass the committee and petition the bill directly to the Senate floor - though she distanced herself from the rare and controversial parliamentary move that would subvert the power of the leadership structure controlled by Miller.

Annapolis' The Capital carries the AP report, "Governor pushes for repeal of death penalty."

Gov. Martin O'Malley said Thursday that he hopes a state panel's recommendation to repeal capital punishment will cause lawmakers to take "a fresh look" at the issue and approve banning the death penalty in Maryland. However, the Democratic governor says he's not sure whether enough of the legislators who have supported capital punishment in the past will change their minds.

The state commission announced its recommendation Wednesday, saying capital punishment doesn't deter crime and is affected by racial and jurisdictional disparities.

"I think the proper course of conduct now is for us to take a fresh look at the death penalty, ask ourselves why we need to continue to have the death penalty on the books," O'Malley told reporters Thursday. "It is ineffective. It does not work."

O'Malley said the state is on course for a significant reduction in homicides.

"And you know what? The death penalty had absolutely nothing to do with that lifesaving and that life-guarding progress," the governor said, noting that there have been no executions this year.

O'Malley said he looked forward to reading the report, which is scheduled to be released next month and said he hoped it would help persuade death penalty supporters. "I think wise people can change their mind and I think that is a sign they are becoming wiser."

Earlier coverage begins with this post.

In Georgia

"DeKalb, Fulton juries resist giving death penalty," is the report in Sunday's Atlanta Journal-Constitution, written by David Simpson and Steve Visser.

After the death penalty trial of Brian Nichols, Fulton County District Attorney Paul Howard plans to seek the ultimate punishment in eight more murder trials.

In adjacent DeKalb County, District Attorney Gwen Keyes Fleming’s office is scheduled to make its opening statement in a death penalty trial Monday. And she is seeking death sentences in two more pending cases.

Getting death sentences in those cases could represent the turning of a historical tide. Fulton County juries went eight years without approving a death sentence until this summer. In DeKalb County, the last death sentence was 19 years ago.

Both counties have large African-American populations, and numerous studies and opinion polls have found blacks more likely than whites to suspect bias in the criminal justice system and to oppose the death penalty.

But Howard and Keyes Fleming, both African-American prosecutors, argue that some cases are heinous enough to merit a death sentence.

Howard’s office won a death sentence this summer for a man who shot to death three people, including a child.

Keyes Fleming approved a death penalty prosecution against Clayton Ellington, who goes on trial Monday on charges he hammered to death his wife and twin 2-year-old sons.

DeKalb has two other death penalty cases pending: one involves another child killing, and the other the slaying of two police officers.

Keyes Fleming declined to be interviewed about jurors’ attitudes toward the death penalty, instead issuing a brief statement expressing her “faith in all our jurors.”

In Fulton County, Howard’s white predecessor, Lewis Slaton, complained that jurors were too reluctant to impose the sentence.

Howard, who was elected to replace Slaton in 1996, said the county’s jurors now are becoming “educated” on the appropriateness of the death penalty in heinous cases.

“For a long time in our county, we never had a death penalty case at all, and we are at an early point in our county of asking our citizens to do that,” Howard said.