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The Handful of Counties Still Imposing the Death Penalty Are a Constitutional Mess

The death penalty is disappearing, but where it still exists, it’s plagued by constitutional problems, a new report finds.

PAUL BUCK/EPA/NewscomPAUL BUCK/EPA/NewscomJefferson County has produced more death row inmates than any other county Alabama, and it's no accident. In one case, a Jefferson County prosecutor claimed a man with an IQ of 56 was faking mental retardation. In another, prosecutors secured a death penalty sentence by presenting illegal evidence to the jury.

Jefferson County is one of a dwindling number of counties in the U.S. where prosecutors still doggedly pursue the death penalty, and where it is plagued by inadequate defense, prosecutorial misconduct, and racial bias, according to a report released Wednesday by the Harvard Law School's Fair Punishment Project.

While the death penalty is still on the books in 30 states—although it is inactive in four of those due to governor-imposed moratoriums—only a dwindling handful of "outlier counties" are responsible for the vast majority of new death penalty sentences being imposed. The Fair Punishment Project released a report earlier this year finding that, out of the roughly 3,000 counties in the U.S., only 16 have imposed more than five death penalty sentences since 2010. The majority of those counties are in Southern states like Florida, Louisiana, and Alabama, but they also include Dallas County, Tx. and populous Southern California counties like Los Angeles County, Orange County, San Bernardino, and Riverside.

But in the few places where the "machinery of death," as Supreme Court Justice Harry Blackmun once famously called it, is still up and running, it is seriously flawed. Wednesday's report, part two of The Fair Punishment Project's study on these outlier counties, identifies what it says are systemic constitutional deficiencies with how the death penalty is applied.

"These outlier death penalty counties are defined by a pattern of bad defense lawyering, prosecutorial misconduct and overzealousness, and a legacy of racial bias that calls into question the constitutionality of the death penalty," Rob Smith, one of the report's researchers, said in a statement.

Reviewing nearly 400 direct appeals opinions handed down between 2006 and 2015 in the 16 counties, the Fair Punishment Project found forty percent of cases involved a defendant who had some form of intellectual disability or severe mental illness.

The report also found that defense attorneys in death penalty cases in the 16 counties often don't have the time, resources, or ability to adequately defend their client.

However, sloppy, overzealous prosecutors sometimes manage to defeat themselves, despite the best (or worst) efforts of inadequate defense counsels. Ten of the 16 counties reviewed had at least one person released from death row since 1976, the report found.

In Dallas County, Tx., for instance, at least 51 people have been exonerated of serious crimes since 1989, including James Lee Woodard, who served 28 years in prison for murder and rape after prosecutors hid key evidence from his defense counsel. He was exonerated by DNA testing in 2008.

The report also found systemic racial bias was a factor in most of the counties reviewed. Out of all of the death sentences obtained in the counties between 2010 and 2015, 46 percent were given to African-American defendants and 73 percent went to people of color.

A more striking disparity, though, is the imposition of the death sentence based on the race of the victim. No white defendant received the death penalty for murder of a black victim in 14 of the 16 counties, while at least one black defendant was sentenced to death for the murder of a white victim in 14 of the 16 counties

"In looking at these outlier counties, it is very clear that race is still playing a role in determining who is sentenced to die," UNC Chapel Hill professor Frank Baumgartner, whose research on racial bias in the death penalty has reached similar conclusions, said in a statement.

The Fair Punishment Project concludes that the totality of evidence presented "offers further proof that, whatever the death penalty has been in the past, today it is both cruel and unusual, and therefore unconstitutional under the Eighth Amendment."

Photo Credit: PAUL BUCK/EPA/Newscom

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  • ||

    Look, you can't just be killin the serfs when there could still be a little bit of revenue creation left in em, right?

  • Pay up, Palin's Buttplug!||

    That's why we got Obamacare.

  • UnCivilServant||

    But the plans don't cover the execution medications!

  • ||

    Don't worry, Hillary's going to fix it!

  • ||

    . In one case, a Jefferson County prosecutor claimed a man with an IQ of 56 was faking mental retardation.

    And if anyone knows about high functioning retards, its that guy.

  • kinnath||

    We need to run the prosecutors through a little Deer Hunter drill.

    They can sit across the table from the person they want to execute. The prosecutor goes first, then they take turns until is is all over.

  • thom||

    The death penalty is bad enough. But as currently practiced, as a creepy little ceremony with viewing rooms, last meals, and final words and all that....barbaric.

  • ||

    We're zero evolved since the days of burning witches. The only difference is cell phones and the intertoobz.

  • ||

    I fail to see the libertarian answer or even proposition here.

    Isn't it already a crime to wrongfully prosecute (and then execute) someone? Should we execute more white people to make it fair? Should the FedGov stoop down and bar county courthouses and prisons from trying and performing executions (without regard to any/all state decisions)?

    I don't know what the guy with an IQ of 56 did but if it brought about the death of any number of people, I don't exactly see killing him as an amoral act. A bear's IQ is way lower than 56 and if one mauled 5 people and the fedgov said it couldn't be killed (even humanely) it would be anti-constitutional as fuck.

  • Hugh Akston||

    The libertarian answer is to abolish the death penalty. The state has no business killing people who are not an imminent threat to life or limb.

  • ||

    The state has no business killing people who are not an imminent threat to life or limb.

    So, no less than reformation-length sentences for repeat offenders and officers shooting people dead in the streets it is.

    Thanks Hugh!

  • thom||

    People who are too dangerous to be let loose in public can be safely and securely warehoused for the rest of their lives. We've got that pretty much figured out.

  • ||

    So you're cool with warehousing a minority of innocent men among legions of thugs and killers? On my dime no less? How noble!

    Let's say the county(ies) are completely inept at executing people. It's trivially easy to evade county authority both physically and legally. Let's say the FedGov is completely inept at either carrying out executions, reforming criminals, or preventing executions, where do you go?

  • Cliché Bandit||

    I am a libertarian (and a Libertarian) and I therefore believe in a legitimate role for government, which is to protect the rights of individuals. Incarceration of dangerous and duly convicted violent criminals (or otherwise rights violating criminals) is THE legitimate role of government.

    p.s. I do NOT endorse the notion that this stance means the government gets a monopoly on the legitimate use of force.

  • ||

    Incarceration of dangerous and duly convicted violent criminals (or otherwise rights violating criminals) is THE legitimate role of government.

    Right, but this isn't or wasn't the question or issue invoked by the article. Who's responsible for the due conviction and subsequent incarceration/execution? The County, the State, or the Federal Government? I don't live in one of the counties discussed and my state is one of the ones with a moratorium on executions (that I conditionally disagree with). I don't know that my feelings about the 8th amendment, one way or the other, do or should trump the 9th and 10th and a threat to you and yours in your state is hardly a responsibility to me and mine de facto.

    Considering I know we punish people for life for non-crimes they committed as minors, I'm less than sympathetic to the guy with an IQ of 56 who's been in front of multiple juries (right?) and been sentenced to death. As long as they aren't cutting his hands off for stealing food, IDK, that (especially if he's innocent or 'guilty but innocent') putting him in a pen with violent criminals for the rest of his life is less cruel and unusual.

    If these counties were pumping out corpses it would be one thing. As it stands, more officers and civilians are being killed by several fold if not an order of magnitude.

  • thom||

    Yep. If the choice is between the state killing (a person) or stealing (to warehouse that person) I'd advocate for stealing every time.

  • ace_m82||

    You could have stopped after "The state has no business".

  • Radioactive||

    yes, we have no bananas?

  • Cliché Bandit||

    A. The death penalty removes the ability to correct a wrong made by the State during "due" process.
    B. The death penalty is not about justice nor safety of the populous nor the protecting of rights of individuals, it is about revenge. Revenge is not a legitimate function of government. Justice, safety, and rights protection is accomplished through incarceration.
    C. Bears don't have rights which the government is responsible for defending/recognizing (jesse's friends excluded of course).
    D. It is immoral to give the government the authority to kill someone who is not an immediate threat to someone else.

    This, for as long as I have been involved with libertarian politics, has always been the main stance.

  • ||

    This, for as long as I have been involved with libertarian politics, has always been the main stance.

    Weird. My copy of the NAP contains no riders regarding immediacy or persistence of threat nor statutes of limitations.

    The death penalty solely as vengeance is as much a straw man and whimsically based on 'teh feelz' as righting the injustice done by a wrong conviction (the taxpayers get their money back, right?). IMO, it's worse as it perpetuates the legitimacy of taxation and the role of government as zero-cost and morally impartial or correct behavioral modifier/social engineer.

    I agree that bears don't have rights for which the government is responsible. So, the questions I need answered from your vast years of libertarian experience are;
    1) How long and large must a community tolerate bear maulings before it is allowed to either incarcerate the bear for life and/or put it to sleep?
    2) By what standard does the community deem something/someone a bear and deal with it accordingly?
    3... and possibly/probably most importantly) Who decides?

    As long as they aren't stoning women for wearing yoga pants or sending kids to prison for receiving racy texts, it's their business, not mine. Wrongly convicted and executed a rapist of a subsequent (forced entry,) rape and murder? It's not my (government's job) to save everyone. Especially if 'saving' means locking him in a pen with intentionally violent rapists and murderers for the rest of his life.

  • Cliché Bandit||

    It is the A in NAP

    Aggression. That is where I get to deal out, morally and justly, the death penalty to you when you pose a danger to me.

  • Longtobefree||

    B. The death penalty is not for revenge. It is societies statement that there are (were?) things humans do to each other that are so reprehensible that the only way society can express its revulsion is to take the life of the offender. The issue documented here is not about the death penalty, it is about the lack of due process, as defined by the authors.

    Further, the death penalty is expressly permitted by the constitution. See the fifth and fourteenth amendments. If you cannot be deprived of life without due process, then with due process you can be deprived of life.

  • Cliché Bandit||

    It is societies statement that there are (were?) things humans do to each other that are so reprehensible that the only way society can express its revulsion is to take the life of the offender

    Soooo....revenge then.

  • Cliché Bandit||

    Also, I never made the claim it was unconstitutional.

  • Suicidy||

    I'm for executing more white progressives!

  • AlgerHiss||

    I'm no death penalty supporter, but let's be honest here: Harry Blackmun would have had no problem with Kermit Gosnell.

  • Chipwooder||

    I think the death penalty should be exceedingly rare, but I would still want it for people like James Holmes. Exceptionally heinous crimes for which there is no question of guilt. If that means I'm not a doctrinaire libertarian, then I guess I'll have to live with that.

  • ||

    Precisely why I believe the death penalty should never be abolished as enforced policy. There are things you can do that which no civil society should have to tolerate.

  • ||

    Also, a government that can reform someone who murdered two children and

  • ace_m82||

    Justice is repayment (to the victim) and nothing else. There is no "crime" against the state or society, only debts incurred to individuals (sometimes more than one).

    Take $20, you owe the victim $20 (perhaps plus expenses). Assault someone and you should pay for their medical bills and perhaps get a beating yourself. Take a life and you owe the victim's NOK yours.

    Governments steal power from the individuals when they determine that "crimes" hurt the government instead of the victim. This allows the government more money and more power (both of which are taken from individuals).

    Prisons are no way to get an aggressor to repay a victim, save perhaps in the case of kidnapping. Either way, the victim must be repaid, not the government. The purpose of justice is repayment, not "rehabilitation".

    Let there be a jury trial and if guilt is determined, have a sentence of "up to full repayment". If the victim decided to forgive the debt, that is up to them. If they take full repayment or just partial repayment, it's none of our business.

    For those who think "an eye for an eye" is "barbaric" (a term used primarily for it's emotional connotations), you must understand 2 things:

    It doesn't mean an eye for an eye for an eye... ad infinitium. Once the debt has been paid, it's over with and done.

    Secondly, if justice isn't repayment, then give me a good definition of it. Remember Occam's razor.

    Should government have the death penalty? No, but Abusus non tollit usum.

  • Suicidy||

    Perhaps the perps organs should be harvested, sold, and the proceeds given to the victim, or their family. A clean sweep.

  • SIV||

    The libertarian solution is to end the state monopoly on retributive violence and allow private sector extrajudicial death penalties to compete.

  • ||

    I didn't see anything remotely like that proposed? Did I miss it?

    I see tacit support for an end-around and decidedly top-down outright banning of executions that runs decidedly counter to private sector (local non-profit?) death penalties.

    I see a lot of stuff that (Iron Law) exempts police for making decisions in the heat of the moment and (further) oppresses local groups for taking the law into their own hands.

  • Radioactive||

    kill 'em all, let Dog sort them out!

  • eamonkelly||

    Let's do away with institutionalized death penalty and put the decision-making process back into the hands of the victims of violent crime...concealed carry. Think of the savings!

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