Commentary

Scathing new report: Racism, bias and prosecutor misconduct plague “dying” U.S. death penalty

Death-penalty3The Fair Punishment Project at Harvard Law School is out with a damning new report this morning that seems certain to put another nail in the coffin of the death penalty in the United States. This is from the release that accompanied “Too Broken to Fix: Part I — An In-depth Look at America’s Outlier Death Penalty Counties”:

“Today, Harvard Law School’s Fair Punishment Project released a new report offering an in-depth look at how the death penalty is operating in the handful of counties across the country that are still using it. Of the 3,143 county or county equivalents in the United States, only 16—or one half of one percent—imposed five or more death sentences between 2010 and 2015. Part I of the report, titled Too Broken to Fix: An In-depth Look at America’s Outlier Death Penalty Counties, examined 10 years of court opinions and records from eight of these 16 “outlier counties,” including Caddo Parish (LA), Clark (NV), Duval (FL), Harris (TX), Maricopa (AZ), Mobile (AL), Kern (CA) and Riverside (CA). The report also analyzed all of the new death sentences handed down in these counties since 2010.

The report notes that these “outlier counties” are plagued by persistent problems of overzealous prosecutors, ineffective defense lawyers, and racial bias. Researchers found that the impact of these systemic problems included the conviction of innocent people, and the excessively harsh punishment of people with significant impairments. Many of the defendants appear to have one or more impairments that are on par with, or worse than, those that the U.S. Supreme Court has said should categorically exempt individuals from execution due to lessened culpability….

In conducting its analysis, the Project reviewed more than 200 direct appeals opinions handed down between 2006 and 2015 in these eight counties. The Project found:

  • Sixty percent of cases involved defendants with significant mental impairments or other forms of mitigation.
  • Eighteen percent of cases involved a defendant who was under the age of 21 at the time of the offense. In Riverside County, 16 percent of the defendants were age 18 at the time of the offense.
  • Forty-four percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In four of the counties, half or more of the defendants had mental impairments: Maricopa (62 percent), Mobile (60 percent), Caddo Parish (57 percent), and Kern (50 percent).
  • Approximately one in seven cases involved a finding of prosecutorial misconduct. Maricopa and Clark counties had misconduct in 21 percent and 47 percent of cases, respectively.
  • Bad lawyering was a persistent problem across all of the counties. In most of the counties, the average mitigation presentation at the penalty phase of the trial lasted approximately one day….
  • A relatively small group of defense lawyers represented a substantial number of the individuals who ended up on death row. In Kern County, one lawyer represented half of the individuals who ended up on death row between 2010 and 2015.

Happily, as the report also points out, the death penalty in the United States is dying. As with other vestiges of a bygone era — think of corporal punishment in our schools — the main challenge now is to bring the shrinking number of jurisdictions that cling to the death penalty into the 21st Century. The report seems certain to abet that process. Click here to read a summary and here to read the entire report.

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