Missouri Supreme Court blocks plea agreement for man scheduled to be executed next month

The Missouri Supreme Court has blocked an agreement that would have resentenced death row inmate Marcellus Williams to life without parole after new testing of DNA evidence complicated his innocence claim, reported CNN.

A St. Louis County Circuit Court judge has now set the agreement aside and scheduled an evidentiary hearing for August 28, court records show. The lower court may seek an administrative stay of Williams’ September 24 execution date while the proceedings unfold, the chief justice wrote.

The Missouri Supreme Court’s decision caps a whirlwind 24 hours in the case that has pitted Wesley Bell, a local prosecutor running for Congress as a Democrat, against state Attorney General Andrew Bailey, a Republican seeking reelection.

Williams, 55, has long maintained he did not murder Felicia Gayle, a one-time reporter for the St. Louis Post-Dispatch found stabbed to death in her University City home in 1998. He was convicted in 2001 of first-degree murder, burglary and robbery, among other charges, and sentenced to death.

Twenty-three years after his conviction, Williams’ innocence claim is championed by attorneys for the Innocence Project and the Midwest Innocence Project.

In January, the St. Louis Prosecuting Attorney’s Office, led by Bell, filed a motion to vacate Williams’ conviction, saying DNA evidence that could purportedly exclude Williams as the killer had never been reviewed by a court. Prosecutors were expected to present DNA evidence in court Wednesday that they say would exclude Williams as the person who wielded the knife used in the murder. The motion cited the analysis by three DNA experts.

However, the results of new DNA testing showed the evidence had been mishandled, complicating Williams’ innocence claim, the Associated Press reported.

The key hearing Wednesday did not get underway as scheduled, and after several hours, Bell’s office announced a consent judgment, an agreement between Williams and the prosecutor’s office. The deal dictated Williams receive a life sentence after entering a so-called Alford plea of guilty to first-degree murder. An Alford plea generally allows a defendant to maintain their innocence while acknowledging it is not in their interest to go to trial given the evidence against them.

A copy of the judgment said it was reached after a conference Wednesday in which a representative of Gayle’s family “expressed to the Court the family’s desire that the death penalty not be carried out in this case, as well as the family’s desire for finality.” Gayle’s widower declined to comment on Thursday.

The Missouri attorney general had fought Bell’s motion and opposed Wednesday’s agreement, saying in a statement new DNA test results indicated the evidence would not exonerate Williams.

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Alabama's death penalty rolls on in face of national decline

As one of only five states that executed people this year—and one of only seven states that sentenced people to death—Alabama remains an outlier in its continued use of the death penalty, according to the Death Penalty Information Center’s Year End Report.

According to the Equal Justice Initiative, the death penalty’s nationwide decline continued in 2023, which DPIC reports is the ninth consecutive year with fewer than 30 people executed and fewer than 50 people sentenced to death.

Alabama imposed three of this year’s 21 new death sentences. Two of the three were sentenced to death even though jurors did not agree that death was the appropriate sentence.

Allowing death sentences to be imposed without unanimous agreement from all 12 jurors is an outlier practice barred in almost every other state. Indeed, until Florida changed its law earlier this year, Alabama was the only state that allowed a person to be condemned to death without a unanimous jury vote.

Alabama put to death two of the 24 people who were executed this year in the U.S. Both men were executed despite the fact that all 12 jurors did not agree they should get the death penalty—a fact that would bar the death penalty in nearly every other state.

Alabama stands out as the state with the worst record of failed and botched executions after its torturous multi-hour execution of Joe James and its failed attempts to execute Alan Miller and Kenny Smith in 2022.

It retained that outlier status this year when the governor declared Alabama was ready to resume putting people to death after the same officials responsible for the failed and botched executions conducted a truncated, nontransparent “review” that failed to identify any problems with its protocol or explain what went wrong in its last three scheduled executions—in sharp contrast with the independent, comprehensive investigations ordered in states like Arizona and neighboring Tennessee.

The only specific change that resulted was an unprecedented new rule that made Alabama the only state in the country that allows executions without an established time frame, giving executioners unprecedented power.

And just last month, the Alabama Supreme Court authorized the use of an untested, unproven, never-before-used execution method when it gave prison staff a second chance to attempt to kill Kenny Smith by forcing him to breathe nitrogen gas.

The majority of states (29) have abolished the death penalty or stopped executions by executive action. Only a small handful of states continued to use the death penalty in 2023; indeed, the number of states conducting executions (5) and imposing death sentences (7) this year matched record lows.

Three more people were exonerated in 2023, bringing the total to 195 people who have been exonerated after being sentenced to death in the modern death penalty era.

Several other cases with strong evidence of innocence received intense media attention and unprecedented support from state lawmakers, prosecutors, judges, and other officials, likely contributing to the finding that more Americans now believe the death penalty is applied unfairly than fairly.

The number of new death sentences has dropped steadily over the past two decades, DPIC reports, thanks to new laws providing life-without-parole as an alternative sentence as well as “the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects.”

These developments, together with apparent changes in jurors’ attitudes about the effectiveness, reliability, and fairness of the death penalty, underscore DPIC’s sobering conclusion that most of the people who were executed this year would not be sentenced to death today.

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The Death Penalty Information Center releases year end report

The Death Penalty Information Center has issued it annual report, The Death Penalty in 2022: Year End Report. Fewer death sentences have been imposed in the United States in the past five years than in any preceding five-year span since capital punishment resumed in this country in 1972. Illustrating the durability of capital punishment’s decline, 2022 was the eighth consecutive year in which fewer than 50 new death sentences were imposed in the United States and fewer than 30 executions were carried out, far off the 1990s’ peaks of 315 death sentences and 98 executions.

The death penalty continued to be geographically isolated with only five states — Alabama, Arizona, Oklahoma, Missouri, Texas — carrying out executions (or six states, if Mississippi executes Mr. Loden on Wednesday). Oklahoma (5) and Texas (5), the two most prolific states in carrying out executions over the past fifty years, performed more executions than any other states, together accounting for more than half of the year’s executions. Despite the efforts of these outlier states, most scheduled executions did not go forward: just 35% of the 51 death warrants issued for 2022 were actually carried out.

Execution failures were numerous and dramatic. On July 28, 2022, executioners in Alabama took three hours to set an IV line before putting Joe Nathan James to death, the longest botched lethal injection execution in U.S. history. The state then called off the next two executions in progress when corrections personnel were unable after repeated attempts to establish execution IV lines. Executions were put on hold in Alabama, Tennessee, Ohio, and South Carolina when the states were unable to follow execution protocols. Idaho scheduled an execution without having the drugs on hand to carry it out. The execution did not go forward. Oklahoma set an execution date for a prisoner who was incarcerated in federal prison out of state, without making arrangements for his custody to be transferred. That execution also did not occur.

Twelve states imposed new death sentences this year. California imposed four and Alabama and Florida each imposed three. Only one county — San Bernardino County, California — imposed more than one death sentence.

To read the Report CLICK HERE

Bookman: The Sentencing of Lee Harvey Oswald

Marc Bookman executive Director of The Atlantic Center for Capital Representation writes in "The Practical Lawyer":

President John Kennedy's assassin Lee Harvey Oswald "never had a trial, a sentence or appeal.  A look back at what might have been is a reminder of how arbitrary an d capricious capital punishment is." What would have Oswald's trial have look like?

Bookman's article looks a the potential impact that mitigation may have played in Oswald's sentence had he been convicted and whether or not Oswald would have been around long enough to benefit from the United State Supreme Court's 1972 decision in Furman v. Georgia. 

To read more CLICK HERE

Adverse childhood experiences have an impact on capital sentencing

Adverse childhood experiences (ACEs) are potentially traumatic events that occur from birth to age 17. A new study examined the effect of ACEs on jurors' sentencing decisions in hypothetical death penalty cases. The study found that defense testimony elicited jurors' leniency, largely through their responses to ACE evidence, reported the Justice Quarterly.

The study, by researchers at Minnesota State University (MSU), Mankato and St. Edwards University, appears in Justice Quarterly, a publication of the Academy of Criminal Justice Sciences.

"The role of adverse childhood experiences in death penalty trials merits special attention," says Tyler J. Vaughan, associate professor of criminal justice at MSU, Mankato, who led the study. "Though a significant body of research has examined the impact of mitigating evidence and the role of culpability, as well as anger, on sentencing decisions, ACE evidence is unique because it can elicit different emotional responses from jurors."

Criminologists are increasingly focusing on ACEs as risk factors for criminal and violent behavior. Traumatic childhood events—childhood maltreatment; emotional, physical, and sexual abuse; emotional and physical neglect; exposure to violence, mental illness, and substance abuse; and parents' abandonment, incarceration, or separation—have been found to have profound consequences for future criminal behavior. Although research on defendants in death penalty trials and death row inmates is limited, childhood abuse and neglect is common in this group.

In this study, researchers recruited nearly 1,500 participants to take part in mock juror tasks in which defendants' exposure to ACEs as mitigating evidence was manipulated. Participants were similar demographically to jurors in the Capital Jury Project (a consortium of university-based studies on jurors' decision making in U.S. death penalty cases): primarily non-Hispanic and female and with an average age of 37.

Participants were given several pieces of information: 1) vignettes of death penalty trials featuring one of four hypothetical crimes (murder of police, murder of children, murder of multiple victims, murder in the course of a robbery); 2) details of defendants' criminal history and ACEs (a control group did not receive the ACE information); 3) testimony by expert witnesses about the relationship between childhood adversity and decreased ability to reason; 4) photos of the defendants, some of whom were Black and some of whom were white.

Participants who received information about defendants' ACEs were 35% to 50% less likely to vote for the death penalty than participants who were not given that information, with even steeper reductions in the likelihood of sentencing to death when the hypothetical defendant was exposed to more childhood adversity. Sentencing decisions were affected by estimations of blameworthiness, future dangerousness, and sympathy, the study found.

"Practically speaking, our findings suggest that investigating ACEs and presenting this evidence are critical in eliciting leniency in death penalty cases," notes Lisa Bell Holleran, assistant professor of criminal justice at St. Edwards University, who co-authored the study. "They also have implications for the constitutionality of capital punishment in cases where the defense presents ACEs as mitigating evidence."

Specifically, to fulfill the Supreme Court's mandate to narrow the application of the death penalty to the most culpable defendants, the authors argue, jurors need more guidance in how to use mitigating evidence within the confines of a meaningful culpability inquiry. "Although we found some indication that mock jurors consider culpability in deciding the appropriate sentence, we found sympathy to be far more important," Holleran says.

Because the study is based on a simulation, the validity and generalizability of its findings are limited, the authors note. Also, the study's participants differed in several ways from jurors in actual death penalty trials, including that they received less evidence and testimony, and that they made their sentencing decisions alone.

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Trump friend, Roger Stone, gets sentenced to 3 years and 4 months in prison

A federal judge sentenced Roger Stone, President Trump’s longtime friend, to serve three years and four months in prison for impeding a congressional investigation of Russian interference in the 2016 U.S. presidential election, reported the Washington Post.

The penalty from U.S. District Judge Amy Berman Jackson comes after weeks of infighting over the politically charged case that threw the Justice Department into crisis, and it is likely not to be the final word. Even before the sentencing hearing began, Trump seemed to suggest on Twitter he might pardon Stone. With the proceedings ongoing, Trump questioned if his ally was being treated fairly.

In a lengthy speech before imposing the penalty, Jackson seemed to take aim at Trump — saying Stone “was not prosecuted for standing up for the president; he was prosecuted for covering up for the president.” She also appeared to call out Attorney General William P. Barr, whose intervention to reduce career prosecutors’ sentencing recommendation she called “unprecedented.” But she said the politics surrounding the case had not influenced her final decision.

“The truth still exists, the truth still matters,” Jackson said. “Roger Stone’s insistence that it doesn’t, his belligerence, his pride in his own lies are a threat to our most fundamental institutions, to the foundations of our democracies. If it goes unpunished it will not be a victory for one political party; everyone loses.”

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Criminal justice cases headed for the Supreme Court

This week, the U.S. Supreme Court granted certiorari in four new criminal-justice cases. Garrett Epps of the University of Baltimore, writing for The Atlantic outlines the four cases:

• Whether a state can make it a state crime for an undocumented immigrant to use a stolen Social Security number that has been used to find a job;
• Whether a state can simply abolish the insanity defense in criminal cases;
• Whether a state jury can convict a criminal defendant by a vote of 11–1 or 10–2, rather than unanimously; and
• Whether Lee Boyd Malvo, one of the most infamous multiple murderers in American history, must receive a new sentencing hearing because he was a juvenile at the time he participated in the Beltway sniper attacks that left 10 people dead in 2002.

Let’s start with the immigration-crime case. Kansas v. Garcia is a test of statutory language in the Immigration Reform and Control Act (IRCA) of 1986, the last truly comprehensive immigration-reform statute. Among its other effects, IRCA is why, when employees begin a new job, they must file a federal I-9 form attesting that they are American citizens—and attaching documents such as a birth certificate or passport to prove that the attestation is true.

The three defendants in Garcia are undocumented immigrants. They used other people’s Social Security numbers on I-9s when they found work in Kansas, as well as on Kansas state documents required to file taxes or rent housing. Kansas authorities prosecuted all three under state “identity theft” statutes that prohibit use of the documents or identifying numbers of another person to commit fraud or “obtain any benefit.”

At trial, the defendants pointed to the section of IRCA that imposed the I-9 requirement. That section says that the I-9 form, and “any information contained in or appended to such form,” can be used only to enforce specified federal crimes. That meant, they argued, that federal law “preempts” state laws seeking to punish any use of the “information” provided by a worker, even if false. The state’s response was that the language covers only use of the information on an I-9 form itself; it can’t, Kansas said, be read to immunize a worker who uses the same information on a separate form to pay state taxes, gain a driver’s license, or do other business with the state.

Federal preemption is a dense subject. Congress has certain enumerated powers under the Constitution. When passing laws under those powers, it may take specific areas out of state jurisdiction altogether. It does this by saying, “This law preempts state law” (explicit preemption), or by passing a statutory scheme that either directly conflicts with a state statute or is so comprehensive that it “occupies the field” (“implied preemption”). The Kansas Supreme Court concluded that IRCA explicitly forbids states to penalize the use of the same information. That reading isn’t nonsensical; one purpose of IRCA was to make it easier for undocumented immigrants to comply with the law without fearing prosecution. In its appeal to the Supreme Court, however, Kansas points to language in the same section of IRCA that says the statute preempts all state laws punishing employers for any errors on their workers’ I-9 forms. That language, Kansas argues, omits state or local laws punishing the employees themselves.

The U.S. government has filed an amicus brief asking the Court not to find “explicit preemption” in the statute’s language. That reading, it argues, makes no sense: “On respondents’ logic, Kansas could prosecute a U.S. citizen who presents a stolen driver’s license for identity theft even if he also appended that stolen license to his I-9, but a state prosecution of an unauthorized alien in the same position would be expressly preempted.” It asks the Court to go further and hold that the IRCA section doesn’t “implicitly” preempt state laws either, and to avoid any broad constitutional ruling on federal immigration power and state law.

The stakes in the case are fairly high; a green light for this statute would create pressure to pass similar statutes elsewhere.

Kahler v. Kansas also concerns a Kansas statute—one that in essence abolished the age-old “insanity defense” to a criminal charge. For more than half a millennium, English and American courts have held that “insanity” (now a legal, not medical, term) negated a defendant’s criminal responsibility; by the 19th century, that term had been defined as a mental disease that rendered the defendant either unable to understand “the nature and quality” of what he was doing (thinking the victims were actually haystacks rather than humans, for example) or unable to discern that his actions were wrong. (Some courts used to explain this prong by saying that if defendants would still have committed the crime with a police officer standing nearby, they were legally insane—if not, not.)

That defense fell into some popular disrepute after John W. Hinckley, who attempted to assassinate President Ronald Reagan in 1981, was acquitted for reasons of insanity. Since then, legislatures have experimented with ways of cutting back on the traditional rule. Kansas went further than most. In 1996, its legislature passed a law eliminating the defense entirely—unless the defendant was able to show that he or she was so mentally impaired as to be unable to form the “mental state” necessary to violate the law. A defendant unable to form the “intention” to kill could not be convicted, but one who could “intend” to shoot or kill could be, regardless of how distorted the subjective reasons for doing so.

James K. Kahler, the petitioner in this case, went to his ex-wife’s grandmother’s house on Thanksgiving 2009 and killed the grandmother, his ex-wife, and the couple’s two daughters. At trial, his lawyers offered evidence that he was suffering from major depressive and obsessive-compulsive disorders, among others. A defense expert testified that Kahler “felt compelled” to kill and was, for that period, “completely out of control.”

That defense might or might not have satisfied a jury under the old statute, but in Kahler’s case, the jury was permitted to decide only whether Kahler had the intent to kill; they concluded he did and sentenced him to death. The state supreme court rejected his constitutional challenge to the insanity law. Now his lawyers ask the Court to hold that blocking a traditional insanity defense violates the Eighth Amendment’s ban on “cruel and unusual” punishment.

Besides Kansas, three other states—Idaho, Montana, and Utah—have abolished the insanity defense completely; a fourth, Alaska, has truncated the defense so as to allow conviction even if a defendant didn’t understand right from wrong at the time of the crime. In seven others—California, Colorado, Louisiana, Minnesota, Mississippi, Nevada, and Washington—courts have suggested one way or another that the Constitution requires courts to allow such a defense. The “no insanity” states are therefore outliers, and the cert. grant suggests there’s some desire among the justices to bring them to heel. But only four were needed for the grant; a decision for Kahler will require five.

It seems likely that the Court granted cert. in the next case, Ramos v. Louisiana,to reverse. The issue in Ramos has been mooted many times since a widely reviled 1972 Supreme Court decision called Apodaca v. Oregon.

The decision in Apodaca is a shambles. Four justices argued that the Sixth Amendment didn’t require unanimous juries at all, in either state or federal trials; four others wrote that the amendment did require unanimous juries in both state and federal trials. Justice Lewis F. Powell Jr., relatively new to the Court, wrote a bizarre opinion suggesting that the amendment did require unanimous juries in federal trials but that, even though the amendment applied to the states by virtue of the Fourteenth Amendment, it somehow applied in a limited form that did not require unanimous verdicts in state cases.

Nobody today thinks that Powell’s rule makes any sense, but both Oregon and Louisiana have continued to apply their jury rules, and dozens of defendants have begged the high court to revisit the issue. Next term it will. (Louisiana’s voters last November approved a referendum imposing a unanimity requirement for trials beginning on January 1 of this year. The state argues that this moots the case, but a lot of people already in prison in Louisiana think they should have the benefit of the unanimous-jury rule, and will do more hard time if they don’t get it.)

Evangelista Ramos was convicted of second-degree murder by a Louisiana jury in 2016. The jury split 10–2 after hearing mostly circumstantial evidence. After the conviction, Ramos’s appointed counsel argued on appeal that the evidence was insufficient, but in a separate brief, Ramos, proceeding without a lawyer, raised the unanimous-jury issue. The state appellate courts rejected his brief.

Then a Louisiana criminal-justice reform nonprofit called the Promise of Justice Initiative filed a cert. petition for Ramos. On Monday, the U.S. Supreme Court agreed to take up his case. Ramos’s new lawyers cite historical evidence that the non-unanimous-jury rule was adopted in 1898 by a state constitutional convention called with the express purpose of, as the president of the convention put it, “establish[ing] white supremacy in this state.” This evidence, they suggest, shows that the non-unanimous rule was put in place precisely to prevent minority jurors from blocking a white majority’s decision to punish black defendants.

The Court has recently shown some enthusiasm for decisions that the Fourteenth Amendment “incorporates” all the provisions of the Bill of Rights. In 2010, it held that the Second Amendment “right to bear arms” applies full force against the states; last month it reached the same conclusion about the “excessive fines” clause of the Eighth Amendment. Taking down the embarrassing Apodaca rule may be part of that long-term judicial project.

Finally, in Mathena v. Malvo, the Court will decide whether Lee Boyd Malvo, one of the two Beltway snipers, is entitled to a new sentencing procedure. Malvo, who was 17 at the time, roamed the highways of the District of Columbia and Maryland, along with John Allen Muhammad, a quarter century his senior; the two randomly shot and killed 10 people at a distance with a high-powered rifle. Malvo was tried and, in 2004, sentenced to life in prison without parole; Muhammad was executed by Virginia in 2009.

However, in a 2012 decision called Miller v. Alabama, the Supreme Court decided that, in most cases, a mandatory “no parole” sentence violates the Eighth Amendment rights of defendants who were underage at the time of their crimes. Because children can change so much as they mature, the Court reasoned, such prisoners are entitled to a chance to show that they might, someday, be safe to release on parole—and an automatic no-parole sentence denies them that chance. Then, in 2016, in Montgomery v. Alabama, the Court announced that the Miller rule was retroactive. That meant courts must apply it to state cases of defendants who were already convicted, but were seeking review of their sentences.

Malvo sought such review in federal court in Virginia. A federal district judge held that he was entitled to a new sentencing procedure, and the Fourth Circuit affirmed. Virginia had argued that it actually was a “discretionary” sentence—since under long-standing Virginia rules, the trial court could have suspended some or all of Malvo’s life term. The Fourth Circuit concluded that the judge who sentenced Malvo believed that he had no such discretion.

But even if the Virginia rule made the sentence discretionary, the appeals court argued, the Montgomery decision required setting it aside. That’s because, the court said, Montgomery held that a no-parole sentence can’t be handed down unless the sentencing judge specifically finds that the defendant’s “‘crimes reflect permanent incorrigibility,’ as distinct from ‘the transient immaturity of youth.’”

It’s hard to imagine that the justices burn with compassion for Malvo (most of them were living in the region in 2002, when everyone was terrified of being shot at the gas pumps). But the high court almost had to take this case, because the Fourth Circuit’s reading of Montgomery directly conflicts with the Virginia Supreme Court’s. The Virginia court reads the decision to apply only to mandatory sentences—rendering the need for a judicial finding of “incorrigibility” unnecessary. The prospect is that prisoners who appeal to the state court will be turned down under its rule, then immediately petition the federal courts—and win. Something has to give.

All together, these cases show a Court trying honorably to play its role as supervisor of the criminal-justice system—and it may be poised to make things better. In a season of dread, Monday’s order provides reason to hope that some small good news may be on the way.

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Ohio's death penalty statute permitting a judge to overturn a death sentence deemed constitutional

The Supreme Court of Ohio ruled that the state's death penalty statute does not violate the Sixth Amendment's [text] guarantee of "the right to a speedy and public trial, by an impartial jury[.]" Maurice Mason, a former death row inmate, unsuccessfully challenged the role given to the judge during the sentencing phase of capital punishment cases, reported the Jurist.

The court unanimously upheld Ohio's law as being in line with the requirements laid out by the US Supreme Court [official website] in Hurst v. Florida[opinion]. In Ohio, the jury must first come to a guilty verdict [ORC § 2929.03]. Next, the jury determines the presence of aggravating and mitigating factors [ORC § 2929.04]. Then, the jury itself must make a finding that the aggravating factors outweigh the mitigating ones. Only after this finding has resulted in a recommendation of the death penalty does the judge's sentencing discretion come into play. If the judge agrees with the jury's weighing of the relevant factors, the judge may sentence the defendant to death. In the absence of a unanimous jury verdict on any of these questions, or if the judge disagrees with the jury's weighing of the factors, the judge can only hand down a life sentence.

The US Supreme Court has interpreted the Sixth Amendment as requiring every fact necessary for imposition of capital punishment to be determined by the jury. Most recently, in Hurst, the court struck down Florida's capital punishment sentencing scheme. Under the invalidated law, after a jury rendered a guilty verdict, the judge determined whether aggravating factors counseling in favor of the death penalty outweighed mitigating factors counseling against.

Noting the differences between the Florida statute at issue in Hurst and the Ohio statute, the court rejected Mason's interpretation of the Sixth Amendment.

Ohio trial judges may weigh aggravating circumstances against mitigating factors and impose a death sentence only after the jury itself has made the critical findings and recommended that sentence. Thus, “the judge’s authority to sentence derives wholly from the jury’s verdict.” ... Under Ohio’s death-penalty scheme, therefore, trial judges function squarely within the framework of the Sixth Amendment.

Because all of the elements needed for a capital punishment sentence are determined by the jury, the Ohio Supreme Court found the law to be in accordance with Hurst and with the US Constitution.

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Oklahoma Commission: 'Serious flaws in capital sentencing system'

The Oklahoma Death Penalty Commission Report concluded that there were various serious and systemic flaws in Oklahoma’s capital sentencing system, reported The City Sentinel.

Included at the end of the Commission’s report is a separate study entitled “Race and Death Sentencing for Oklahoma Homicides, 1990-2012,” which examines “the possibility that the race of the defendant and/or victim affects who ends up on death row (Report at 211, 214).

Among the study’s key findings was the fact that “homicides with white victims are the most likely to result in a death sentence.” (Id. at 217.)

This study states that, in Oklahoma, criminal defendants – like Jones – who are accused and convicted of killing white victims are nearly two times more likely to receive a sentence of death than if the victim is nonwhite.

For homicides involving only male victims, a death sentence is approximately three times more likely in cases involving male victims when that victim is white, the report notes. 

In the document filed on June 23with the Oklahoma Court of Criminal Appeals, Julius’s attorneys believe that the race study shows that his death sentence is unconstitutional.

A more recent study published in the North Carolina Law Review in 2016 titled “Untangling the Role of Race in Capital Charging and Sentencing in North Carolina,” 1990-2009 by Catherine Grosso and Barbara O’Brien, associate professors at Michigan State University’s College of Law also finds, “The white victim effect was the clearest and strongest finding in this study analysis,” Grosso says. “Race still matters in the criminal justice system, and it shouldn’t.

According to the Death Penalty Information Center over 75 percent of the murder victims in cases resulting in an execution were white, even though nationally only 50 percent of murder victims generally are white.

To read more CLICK HERE

Death for racist mass killer Dylann Roof

Just a few hours after he told a crowded courtroom, “I still feel like I had to do it,” Dylann Roof was sentenced to death by a federal jury for carrying out the mass shooting inside Charleston's Emanuel AME Church in a bid to spark a race war, reported The Post & Courier.

The 12-member panel – three black jurors, nine white – deliberated for a little less than three hours before unanimously deciding the 22-year-old self-avowed white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.

U.S. District Judge Richard Gergel has scheduled a hearing for 9:30 a.m. today to formally impose that sentence and hear from loved ones who wish to address the killer.

To read more CLICK HERE

DA concedes judges may impose 'individualized, proportionate' resentencing for juvenile lifers

The Philadelphia District Attorney's Office has conceded that a judge resentencing "juvenile lifers" may impose a minimum sentence lower than the 35 years that the office has been offering in such cases.

The possibility was raised as the office agreed to move ahead with resentencing for Kempis Songster, 44, who is serving life without parole for a murder he committed in 1987 at age 15.

An openly frustrated U.S. District Judge Timothy J. Savage--who ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline--said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that put back into play about 300 murder cases in Philadelphia involving juveniles.

Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.

"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti. "If you're saying you have all these offers out, it seems you're treating all of these folks the same way - 35 years to life. I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually. I understand you want to do this for policy reasons. Maybe because it looks good."

Songster's case and others are back in the courts as a consequence of Montgomery v. Louisiana, a U.S. Supreme Court decision in January that made retroactive the court's ban on automatic life-without-parole sentences for juveniles. The ruling affects about 2,300 cases nationwide, about 500 of which are in Pennsylvania - including about 300 in Philadelphia.

To read more CLICK HERE

Death sentences on the decline nationwide

Twenty states and the District of Columbia have abolished capital punishment, reported the New York Times. Four more have imposed a moratorium on executions. Of the 26 remaining states, only 14 handed down any death sentences last year, for a total of 50 across the country — less than half the number six years before. California, which issued more than one-quarter of last year’s death sentences, hasn’t actu­ally executed anyone since 2006. A new geography of capital punishment is taking shape, with just 2 percent of the nation’s counties now accounting for a majority of the people sitting on death row.

An small fraction of counties still imposes death sentences regularly. In June 2015, in the Supreme Court case Glossip v. Gross, which involved lethal injection, Justice Stephen Breyer noted in a dissent that only 15 counties — out of more than 3,000 across the United States — had imposed five or more new death sentences since 2010.

Breyer wrote that there is “convincing evidence” that innocent people have been executed in three states, and he described near-misses, with more than 100 exonerations on death row. He also laid out the proof that race affects who is selected for execution. The seminal study in the field,conducted in Georgia in the 1970s, found after controlling for many other factors that the death penalty was far more likely if a victim was white, especially if a defendant was black. Research since then has confirmed the disparity in states across the country. “Racism is the historical force that has most deeply marked the American death pen­alty,” says Carol Steiker, a Harvard law professor and an author of the forthcoming book “Courting Death: The Supreme Court and Capital Punishment From Colonial Days to the Present.”

To read more CLICK HERE

Fewest executions in the USA since 1991

The number of people executed in the United States this year dropped to the lowest level since 1991, as states impose fewer death sentences and defendants in capital cases get access to better legal help, reported the Associated Press.
Here is my recent GateHouse Media column on the death penalty.

The Death Penalty Information Center, a nonprofit organization that opposes capital punishment and tracks the issue, said 28 inmates were executed as of Dec. 15, down from 35 last year and far below the peak of 98 in 1999.

Another 49 criminal defendants received death sentences this year, down 33 percent from 2014 and the lowest number since the early 1970s.

The numbers reflect a steady decline in death sentences over the past 15 years and a broad shift in public attitudes that has made capital punishment increasingly rare, said Robert Dunham, the group’s executive director.

 “What we’re seeing is the cumulative effect of falling public support for the death penalty,” Dunham said.

About 61 percent of Americans support the death penalty in murder cases, according to a Gallup poll in October, but that share has inched downward while opposition has crept up.

While capital punishment remains legal in 31 states, only six states accounted for all the executions this year — Florida, Missouri, Georgia, Oklahoma, Texas and Virginia. That’s the fewest since 1988.

Texas led the way with 13 executions, followed by six in Missouri and five in Georgia. But Texas imposed only two new death sentences this year, while Georgia and Virginia had no new death row inmates.

The total number of death row inmates nationwide is now below 3,000 for first time since 1995.

A shortage of lethal injection drugs has meant de facto freezes in several states, including Ohio and Nebraska. In Arkansas, a judge halted executions of eight inmates amid a legal fight over whether the state can keep secret the identity of manufacturers and sellers of its execution drugs.

Oklahoma recently said it was halting all executions until well into next year while officials investigate two botched lethal injections and a third that was called off because the wrong drug was delivered.

Earlier this year, the Supreme Court upheld Oklahoma’s use of a controversial sedative in lethal injection executions, but two justices said for the first time they think it’s “highly likely” the death penalty itself is unconstitutional.

Death penalty opponents are hoping the high court eventually will abolish the penalty as cruel and unusual under the Constitution. Even Justice Antonin Scalia, a longtime defender of capital punishment, told an audience this year that he wouldn’t be surprised if the court invalidates the death penalty.

Another factor in the recent decline is improved legal representation for defendants. Georgia, Texas and Virginia have all created statewide capital-case defender programs staffed by attorneys who specialize in those cases.

Since 1973, more than 150 people who had been sentenced to death have been exonerated after presenting evidence of their innocence. Six death row prisoners were cleared of all charges this year.

“There is a very significant relationship between providing defendants good representation and the outcomes of capital cases,” Dunham said.

Other factors cited in the decline of executions include the high cost of death penalty prosecutions and states such as Texas and Virginia now instructing juries that they have the option of sentencing capital defendants to life without the possibility of parole.

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Ohio prosecutors seek fewer death sentences

Prosecutors across Ohio are changing the way they charge suspected killers, according to the Cleveland Plain Dealer. They are indicting far fewer with the death penalty and pushing more sentences of life in prison without parole.
The number of capital murder indictments filed across the state since 2010 has plummeted by 77 percent, as just 19 have been brought this year.
During the same time period, the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national the number of inmates sentenced to life without parole has spiked 92 percent, according to a Plain Dealer examination of state prison records and other public documents.
The Ohio numbers mirror a national trend involving the death penalty. Legal experts cited the high costs of taking a capital case to trial. They also said decades of appeals make the death penalty extremely burdensome on the criminal justice system and traumatic for victims' families.
As the death penalty in Ohio sits stalled in a moratorium over the drugs used in executions, the emerging trends of how prosecutors handle aggravated murder cases offer insight into the way justice is meted out in Ohio courtrooms.
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Oregon sentences serial killer to death for 4th time, with little chance of execution

A jury this week sentenced Dayton Leroy Rogers, one of Oregon's most prolific serial killers, to death for the fourth time, an ultimately symbolic decision in a state that has not executed anyone in nearly 20 years, reported the Associated Press.
Dayton Leroy Rogers, 62, who killed eight women in the 1980s, had previously been sentenced to death three times for his crimes, and each time the penalty was overturned on legal grounds. The jury's new verdict comes despite a moratorium on executions imposed by the past two governors.
Rogers apologized in court Friday. He told jurors the word "sorry" was inadequate, but he was sorry for taking "eight precious lives."
Prosecutors said Rogers, a former lawn-mower repairman, drove to Portland to solicit prostitutes, plied them with alcohol and took them to remote locations where he tied them up and tortured them. He was dubbed the Molalla Forest Killer because the bodies were discovered in a forest in the small town of Molalla.
The state Supreme Court struck down Rogers' death sentences in 1992, 2000 and 2012. The first time was to comply with a U.S. Supreme Court ruling that invalidated Oregon's death penalty law.
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GateHouse: Juveniles fear arrest more than punishment

Matthew T. Mangino

GateHouse Media

August 14, 2015

Research into the adolescent mind and criminality has changed the way we punish   young people. Brain development research has, in part, eliminated juveniles from the death penalty, life without parole for non-homicide offenses, and mandatory life without parole.

A new study of juvenile crime suggests that the severity of punishment — going to prison — has little impact on deterring crime.

Research developed through a project known as Pathways to Desistance examined serious juvenile crime and recidivism in multiple states over a significant period of time. Between November 2000 and January 2003, 1,354 young people from the juvenile and adult court systems in Phoenix and Philadelphia were enrolled in the study.

The enrolled youth were at least 14 years old and under 18 years old at the time they were found guilty of a serious crime. Each study participant was followed for a period of seven years after their conviction.

The research has been used in more than 80 studies including a recent Office of Juvenile Justice and Delinquency Prevention report, “Studying Deterrence Among High-Risk Adolescents.”

The report found no meaningful reduction in offending or arrests based on the severity of the punishment, such as correctional placement versus probation or longer periods of institutional placement. However, researchers found that the certainty of punishment can play a role in deterring future crimes.

In other words, an adolescent offender was more concerned with getting caught than with being punished. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Therefore, the report’s authors advocate for shifting resources from prisons to areas that influence an offender’s perception of risk — getting caught. Even if an offender is uncertain about the level of risk, the perception of risk may have an impact on deterrence.

That suggestion is controversial because it would require police agencies to substantially rethink how they deploy scarce resources.

More than two decades ago, Lawrence W. Sherman, currently the director of the Institute of Criminology of the University of Cambridge, England, acknowledged that it is not always possible to increase the certainty of punishment to adequate levels due to limited resources.

He argued that even though the overall level of punishment certainty may be low, the unpredictability variable — very high in some areas but very low in others — could still have a deterrent effect.

Sherman argued that random police activity provides vague or ambiguous information about the certainty of getting caught, exploiting the natural uncertainty about risk.

Although the overall level of detection may be low, creating uncertainty about specific detection probabilities with respect to certain areas, crime types, or other factors, may generate a larger perceived risk of getting caught as compared to a constant, low rate of detection.

The idea is that a little money can go a long way in preventing crime and, more particularly, juvenile crime. The time is ripe to look at alternatives to incarceration without breaking the budget. Random saturation of police patrols in high crime areas can provide enough variability that a potential young offender may become adverse to the perceived risk.

More recent studies have confirmed that this approach to policing, developing tailored responses to very specific recurring problems can be successful without a huge expenditure. The alternative is to build more prisons, with little chance of rehabilitating young offenders. Implementing situational prevention strategies that reduce police reliance on aggressive enforcement strategies like “stop and frisk” may also provide a much needed boost to sagging police-community relations.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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SCOTUS to hear challenge to Florida's death penalty

The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by three former Florida Supreme Court justices and the American Bar Association, according to the News Service of Florida.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing Death Row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional.

 

Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found two aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.

Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”

The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
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Texas has not sentenced a single person to death in 2015

Texas continues to execute people in the highest numbers in the nation. But new death sentences are a different matter, reported the Dallas Morning News. So far this year, not one death sentence has been handed down among Texas’ 254 counties.
That’s an astounding statistic considering Texas’ history with the death penalty. In 1994, death sentences in Texas reached an annual high of 49. It has now been more than six months since jurors in Texas imposed a new death sentence. The last person sentenced to death was Eric Williams, on December 17, 2014.
This is the first time in at least 20 years that the state has gone more than six months without a new death sentence. And, according to Kathryn Kase at Texas Defender Service, it’s also the longest Texas has gone in a calendar year without a new death sentence. Overall, new death sentences in Texas have declined nearly 80% since 1999.
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DA: 'I think we need to kill more people'

More than 10,000 homicides last year--only 72 death sentences

“I think we need to kill more people,” said Dale Cox, a prosecutor in Caddo Parish, Louisiana, according to  Robert J. Smith an assistant professor of law at the University of North Carolina at Chapel Hill in column in Slate.
Cox was responding to questions about the release of Glenn Ford, a man with Stage 4 lung cancer who spent nearly three decades on death row for a crime he did not commit. Cox acknowledged that the execution of an innocent person would be a “horrible injustice.” Still, he maintained of the death penalty: “We need it more now than ever.”

Cox means what he says. He has personally secured half of the death sentences in Louisiana since 2010. Cox recently secured a death sentence against a father convicted of killing his infant son, despite the medical examiner’s uncertainty that the death was a homicide. Rather than exercising caution in the face of doubt, Cox told the jury that, when it comes to a person who harms a child, Jesus demands his disciples kill the abuser by placing a millstone around his neck and throwing him into the sea.

The nation suffered more than 10,000 homicides last year, yet only 72 people received death sentences—the lowest number in the modern era of capital punishment. The numbers have been steadily declining for the better part of a decade. Most states are abandoning the practice in droves. Even in states that continue its use, capital prosecutions are being pursued in only a few isolated counties.

Cox is one of them. Jeannette Gallagher of Maricopa County, Arizona, is another. She and two colleagues are responsible for more than one-third of the capital cases—20 of 59—that the Arizona Supreme Court reviewed statewide between 2007 and 2013. Gallagher recently sent a 19-year-old with depression to death row even though he had tried to commit suicide the day before the murder, sought treatment, and was turned away. She also obtained a death sentence against a 21-year-old man with a low IQ who was sexually abused as a child, addicted to drugs and alcohol from a young age, and suffered from post-traumatic stress disorder. She then sent a U.S. military veteran with paranoid schizophrenia to death row. Her response to these harrowing mitigating circumstances has not been to exercise restraint, but rather to accuse each of these defendants of simply faking his symptoms.

Meanwhile, in Duval County, Florida, Bernie de la Rionda has personally obtained 10 death sentences since 2008.

Not surprisingly, death sentences drop precipitously after these prosecutors leave office. Bob Macy sent 54 people to Oklahoma’s death row before retiring in 2001. Over the past five years, Oklahoma County has had only one death sentence. Lynne Abraham secured 45 death sentences as the Philadelphia district attorney. Since she retired in 2010, the new district attorney has obtained only three death sentences.

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Death sentences at an all time low

Death sentences hit a 40-year low last year and have been in steep decline for the last two decades, plunging from 315 in 1994 to about 72 in 2014, reported NBC News.
"The realization that mistakes have been made, that innocent people are still being freed, has made juries hesistant," Richard Dieter of the Death Penalty Information Center said. "They are willing to convict but not sentence to death. There is a demand for perfect proof, and so prosecutors are taking more plea bargains."

Seven death-row inmates were exonerated last year, the most since 2009.

A majority of Americans still support capital punishment. In a May poll by NBC News, 59 percent said they favor the death penalty as the ultimate punishment for murder, while 35 percent said they are opposed. That reflects the erosion of support since the 1990s, when more than 70 percent backed executions.

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