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Chapter 20 Capital Punishment The State of Criminal Justice 2016 237 CHAPTER 20 CAPITAL PUNISHMENT Ronald J. Tabak* I. OVERVIEW A. Recent Trends 1. 33% Further Drop in New Death Sentences, Mostly Imposed in a Few Jurisdictions The number of death penalties imposed in the United States in 2015 dropped by 33% from the previous year.1 Death sentences reached their annual peak at 315 in 1996.2 In 2010, 114 people were sentenced to death, the lowest number since 1973, the first full year that states began reintroducing capital punishment following Furman v. Georgia.3 In 2011, the number dropped considerably, to 85. The numbers were slightly lower in the next two years: 82 in 2012 and 83 in 2013.4 Then, in 2014, the number dropped to 73.5 In 2015, the Death Penalty Information Center estimated that the number of new death sentences had dropped precipitously further, to 49. While that number is subject to revision by the Bureau of Justice Statistics, it reflects a decline of approximately 33% in one year and another new low in the post-Furman era.6 More than half of all death sentences in 2015 reported by the Death Penalty Information Center were in California (14), Florida (9), and Alabama (6), with all but one of California’s death sentences coming from four counties in Southern California. This was the eighth consecutive year in which Texas’ total was under a dozen – falling to just two – well below its prior yearly totals (which peaked in 1999 at 48).7 Georgia was one of the many states that did not impose any new death sentences in 2015. This was such a milestone given Georgia’s death penalty history that a legal publication there, the Daily Report, named as its “newsmaker of the year” the drop to zero * Ronald J. Tabak is Special Counsel and firmwide pro bono coordinator at Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates in New York, has been chair since the late 1980s of the Death Penalty Committee of the ABA Section of Individual Rights and Responsibilities. He is co-chair of the New York State Bar Association's Special Committee on Re-entry, a Special Advisor to the ABA Death Penalty Due Process Review Project, a member of the Steering Committee of the ABA Death Penalty Representation Project, and a member of the Committee on Capital Punishment of the New York City Bar Association. 1 DEATH PENALTY INFO. CTR., THE DEATH PENALTY IN 2015: YEAR END REPORT, at 1, 2 (2015) [hereinafter DPIC, 2015 YEAR END REPORT]. 2 TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, CAPITAL PUNISHMENT, 2013 – STATISTICAL TABLES, tbl.16, at 19 (2014). 3 408 U.S. 238 (1972); SNELL, supra note 2, tbl.16, at 19. 4 SNELL, supra note 2, tbl.16, at 19. 5 DEATH PENALTY INFO. CTR., THE DEATH PENALTY IN 2014: YEAR END REPORT, at 2 (2014). 6 Id. at 2-3. 7 Id. at 3-4. The State of Criminal Justice 2016 238 of new death sentences. Explanations for this included the Georgia Capital Defender’s taking the initiative by approaching prosecutors with reasons not to seek the death penalty, the cost of capital punishment, and the credibility of life without parole as an alternative.8 Similar explanations were given for the 77% decline in capital murder indictments in Ohio over the past five years.9 One reason for the tremendous drop in new death penalties in Texas was the Texas Regional Public Defender for Capital Cases Office’s initiative to present well-researched narratives of their clients’ life stories, buttressed by expert testimony.10 Another reason was that the combination of DNA-based exonerations and the introduction of life without parole (“LWOP”) as an alternative led Harris County prosecutors to ask for the death penalty less frequently and juries to vote for capital punishment more rarely.11 Similar factors, including changes in who served as district attorney, plus concerns about a local police chemist scandal, plus cost factors and concern over racial disparities, also led to dramatic declines in the number of new death sentences in Oklahoma County, Oklahoma and Philadelphia County, Pennsylvania.12 According to a study by Professor Brandon Garrett released in October 2015, the huge drop in Virginia death sentences in the last 20 years is due to improvements in defendants’ representation, including the creation of teams of defense counsel who specialize in death cases, improved investigations, and the use of experts – especially with regard to mental health matters. He noted that in the past decade, only seven Virginia counties had sentenced anyone to death.13 A change in district attorneys may lead to a decline in new death sentences in Caddo Parish, Louisiana – the source of three-fourths of Louisiana’s 12 new death sentences in recent years. Many of the death sentences in this parish with a population of only 257,000 were secured by Dale Cox, who in 2015 became interim district attorney but then decided against seeking a full term. In April 2015, Cox told The Times of Shreveport that capital punishment’s “only reason” for existing is “revenge.”14 In August 2015, a study concerning Caddo Parish was reported to have found that prosecutors used discretionary challenges against African American potential jurors at three times the rate that they used such challenges against other prospective jurors from 2003-2012.15 Later in 2015, the MacArthur Justice Center said it would bring a federal civil rights lawsuit seeking to enjoin prosecutorial actions that allegedly lead to under-representation of African Americans on juries.16 8 Greg Land, ‘Life Without Parole’ Leads to Shrinking Death Penalty Pipeline, DAILY REP. (Atlanta), Dec. 16, 2015. 9 John Caniglia, Eluding death: Ohio prosecutors charge far fewer capital murder cases, CLEV. PLAIN DEALER, Nov. 25, 2015. 10 Richard Acello, A new defense approach to storytelling changes capital cases in Texas, A.B.A. J., Mar. 1, 2015. 11 Tom Dart, Why Texas county known for death sentences has given none in 2015, THE GUARDIAN, Nov. 18, 2015. 12 Simone Seiver, Why Three Counties That Loved the Death Penalty Have Almost Stopped Pursuing It, THE MARSHALL PROJECT, Aug. 11, 2015. 13 Alex Hickey, Virginia’s use of death penalty declines as lawyering improves, professor says, CAVALIER DAILY (Univ. of Va.), Oct. 21, 2015. 14 Gary Hines, Acting Caddo DA Dale Cox will not run in fall election, KTBS-TV, July 14, 2015, http://www.ktbs.com/story/29545637/acting-caddo-da-dale-cox-will-not-run-in-fall-election. 15 Adam Liptak, New Questions on Racial Gap in Filling Juries, N.Y. TIMES, Aug. 17, 2015. 16 Alexandria Burris, Caddo DA office facing federal civil rights lawsuit, THE TIMES (Shreveport), Nov. 13, 2015. The State of Criminal Justice 2016 239 On the other hand, Robert J. Smith characterized Riverside County, California “as the buckle of a new Death Penalty” in a September 7, 2015 op-ed. He noted that Riverside County had imposed more death sentences (seven) in the first half of 2015 than the state’s other 57 counties did collectively – and more than any other state and all the Deep South states combined.17 2. Further Drop in Executions, and Some Issues They Raised a. 20% Further Decline in 2015 The number of executions in the United States dropped from 98 in 1999 to 42 in 2007, when many executions were stayed due to the Supreme Court’s pending Baze case regarding the manner in which lethal injection is carried out. In 2008, the year the Supreme Court upheld Kentucky’s lethal injection system, there were 37 executions. Executions then rose to 52 in 2009 before declining to 46 in 2010, 43 in 2011 and 2012, 39 in 2013, 35 in 2014, and 28 in 2015 – the fewest since 1991.18 Executions dropped by 20% from 2014 to 2015 and by over 46% since 2009. b. Tremendous Concentration Among a Few States Just six states accounted for all the country’s executions in 2015. Three of those states – Texas (13), Missouri (6), and Georgia (5) – were responsible for 86% of the country’s executions in 2015.19 Meanwhile, as noted above, only two people were sentenced to death in Texas in 2015, and there were no new death sentences in either Missouri or Georgia. c. 75% with Significant Questions About Mental Health, Trauma, Abuse, or Innocence The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School issued a report on December 16, 2015 finding that three-fourths of all executions in the United States in 2015 involved people who “were mentally impaired or disabled, experienced extreme childhood trauma or abuse, or were of questionable guilt.”20 3. States Ending the Death Penalty (and Close Defeats in Two Other States) After New York achieved de facto abolition, New Jersey, New Mexico, Illinois, Connecticut, and Maryland became the first five states to abolish the death penalty by legislative action since the 1960s. Nebraska’s legislature voted for abolition in 2015, but a 2016 ballot initiative could prevent abolition. 17 Robert J. Smith, Opinion, Is Southern California the New Deep South?, SLATE.COM, Sept. 7, 2015. 18 SNELL, supra note 2, at 3, 14; DPIC, 2015 YEAR END REPORT, supra note 1, at 1. 19 Id. at 2. 20 CHARLES HAMILTON HOUSTON INST. FOR RACE & JUSTICE, DEATH PENALTY 2015 YEAR END REPORT, at 2 (2015). The State of Criminal Justice 2016 240 a. New York In New York State, capital punishment has become inoperative. In 2004, New York’s highest court held unconstitutional a key provision of the death penalty law.21 After comprehensive hearings, the legislature did not correct the provision.22 In 2007, New York’s highest court vacated the last death sentence.23 b.
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