The New York Times editorial below explores the relationship between race and the selection of death penalty juries. The editorial mentions a 2011 study conducted at Michigan State University that found a significant racial bias in the selection of jurors. In the 166 cases reviewed by researchers, “prosecutors dismissed more than twice as many blacks from the jury (56%) as others (25%).” Moreover, the disparity was even greater when the defendants were black.
The Curtis Flowers case is a prime example of this type of racial bias. Curtis, an innocent man, has been tried six times for the same crime. His first two convictions were overturned due to prosecutorial misconduct. Discrimination in jury selection led the Supreme Court to overturn Flowers’ conviction after his third trial. Trials four and five ended with hung juries. At the end of the sixth trial, Curtis was convicted and sentenced to death. Although Mr. Flowers has spent over 15 years in prison for a crime he did not commit, we can only hope that the growing awareness of racial bias in jury selection will help bring justice for Curtis and others facing similar situations. MW
North Carolina courageously passed the Racial Justice Act in 2009, making it the first state in the country to give death row inmates a chance to have their sentences changed to life without parole based on proof that race played a significant role in determining punishment.
A state court is now hearing the first challenge to a death sentence under that law. Marcus Robinson, who has been on death row since 1994, must prove that state prosecutors discriminated against blacks in selecting juries, affecting the outcomes of cases, including his. His lawyers presented a notable study by researchers at Michigan State University showing this kind of bias. (more…)
Below is a New York Times editorial summarizing a recent study conducted by Stanford law professor John Donohue. Donohue’s research focuses on the relationship between the heinousness of a crime and the likelihood that an individual accused of a crime will be sentenced to death. The results of his research, which shed light on the arbitrary and discriminatory nature of capital punishment in the U.S., indicate that “inmates on death row are indistinguishable from equally violent offenders who escape [the death] penalty.” MW
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.
From 1973, when Connecticut passed a death penalty law, to 2007, 4,686 murders were committed in the state. Of those, 205 were death-eligible cases (capital murders that include the killing of a police officer, murder for hire, murder-rape and murder committed during a kidnapping) that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.
Why was this small group of defendants singled out for death? Did their crimes make them more deserving of execution than all the others? (more…)
On several occasions in recent months, the death penalty debate has made its way into the public spotlight.
In September, Rick Perry made headlines at a Republican debate when the fact that he presided over 234 executions in Texas was met with cheerful applause. Later that month, media coverage of death penalty issues surged again when the State of Georgia executed Troy Davis despite significant doubts surrounding his guilt. Moreover, recent stories of death row exonerations served to increase concerns about the use of capital punishment in the U.S.
Today, Laura Sullivan from NPR reported that for the first time in over 30 years, fewer than 100 people were sent to death row in 2011. “Just 78 offenders were handed capital sentences,” Sullivan says, “And only 43 inmates were executed — almost half as many as 10 years ago.”
What do these changing trends mean for capital punishment in the U.S? (more…)
Some found it shocking when Oregon Gov. John Kitzhaber granted convicted double-murderer Gary Haugen a reprieve Tuesday, setting aside Haugen’s scheduled December 6 execution. Haugen, who killed another prisoner while serving a life sentence for a previous murder, had waived all appeals.
In a previous term as governor, Kitzhaber allowed two men to be executed, and he explained Tuesday that “I simply cannot participate once again in something that I believe to be morally wrong.” A medical doctor with an active license, the governor also referred to his oath as a physician to “do no harm” as he announced Haugen’s reprieve and a moratorium on executions for the remainder of his term in office. Notably, in issuing a reprieve (or delay) rather than commuting Haugen’s sentence, Kitzhaber left open the possibility of Haugen’s execution under a future governor.
As the news spread, many people reacted with anger. Kitzhaber has been called a coward and worse. This wave of anger, though, should not distract from two important truths: first, that Kitzhaber’s actions are within, not without, the basic rules of our democracy; second, that Kitzhaber is a proxy for the thousands of people in this country who have had to live with doubt and even regret because they were thrust into the death penalty process while doing their civic duty as jurors, judges or lawyers.
In 1984, Oregon voters chose by referendum to reinstate the death penalty. The legislature formulated rules for capital punishment. Prosecutors elected, as they could, to pursue the death penalty against Haugen. A jury heard the evidence, and 12 Oregon citizens voted to have Haugen put to death.
The courts that heard Haugen’s appeals (up to the point he dropped them) found the process fair. Then, after all of this, Kitzhaber chose not to finish this expensive and consuming project. Kitzhaber’s choice is anti-democratic, it does frustrate the will of prosecutors, it must be confounding to those 12 jurors, and it constitutes a tremendous exercise of power based on just one person’s sense of morality. It is also wholly within the genius of American government.
Oregon and other states have incorporated executive clemency into their systems of criminal law, drawing on the example laid out in the United States Constitution. The framers of the Constitution chose intentionally to give the executive that power, knowing full well that it would necessarily run contrary to popular will.
If you are angry with Kitzhaber for using that power, also direct your anger at Alexander Hamilton, who was a driving force behind the institution of executive clemency in the United States. Here is part of what Hamilton said about it in Federalist Paper 74: “Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. … On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.”
The anti-democratic institution of clemency that is generating such anger is contrary to the voters of Oregon, yes. However, we should not forget that that same institution is ancient, principled and an integral part of the broad scheme of justice that wiser men than I have constructed.
A second buried truth is revealed within the tortured way in which Kitzhaber announced his decision. During a prior term as governor, in 1997, he had allowed two executions, and it seems clear that he was deeply troubled by his role in those killings. How could he not be? It is a heavy responsibility to participate in a deliberative process that identifies a citizen to be put to death by the state. However, Kitzhaber is just the exposed tip of an iceberg of human emotion. Beneath him are thousands of others who have been forced by the institution of capital punishment to live with their role in an intentional death.
Among that group are lawyers, witnesses and judges, but perhaps most sympathetic of all are the jurors. They are plucked from their daily lives by the government and suddenly thrust into the most important role of all — they must vote, unanimously, after deliberation, on whether someone will live or die. If they vote for execution, they must file back into that hushed, tense room, look that person in the eye and say in the most public of ways that they have chosen him to die.
I have known some of those jurors. Years later, even if they were convinced they were right, they revealed deep and dark emotions related to what they had done. At best, that service was seen as a difficult but worthwhile sacrifice, and at worst as a moment they too often relived while filled with doubt.
Kitzhaber is right to say that the capital process is fatally flawed. It is unfair to some defendants, yes. But a system that tries many, condemns some to die and executes few is also cruel and unusual to those who work within the process. It is primarily inflicting pain on victims’ relatives who wait in limbo, on jurors who relive those discussions, on prosecutors whose hearts are hardened while their efforts are frustrated and on the budgets and reputations of the states that choose to go on with it anyway.
Kitzhaber is not wrong to declare a moratorium, but he would be better advised to fully commute the sentences of those on death row and urge his fellow citizens to be done with the whole mess that this process has become.
That kind of bold action is not cowardice. It is leadership.
Mark Osler, a professor of law at the University of St. Thomas Law School in Minnesota, is a former federal prosecutor and the author of “Jesus on Death Row,” a book about capital punishment.
Would Jesus Christ support the death penalty? Would a modern-day jury sentence Jesus to death?
Those exact questions were the inspiration for Director Joshua Rofe’s documentary, “JESUS CHRIST: Capital Defendant.”
Through his interactions with Professor Mark Osler and Attorney Jeanne Bishop, Rofe was compelled to create the documentary. Both opponents of the death penalty, Osler and Bishop travel the country, holding trials in which Jesus Christ is the defendant in a death penalty case. One goal of these trials is to challenge audiences to use a faith-based lens to think critically about capital punishment.
In April 2012, Crossings Church in Oklahoma City, Oklahoma will hold a trial of Jesus Christ. The congregation will be the jury. Rofe will document the entire process and, from that, create his film. Check out Rofe’s video about the documentary here. MW
William Wilberforce as portrayed in "Amazing Grace"
By Alan Bean
Personhood USA, the group arguing that personhood begins the moment of conception, is promoting itself as a latter day embodiment of the civil rights movement. Days after a “fetal personhood” amendment was rejected by 60% of Mississippi voters, Personhood Florida’s Bryan Longworth is undaunted. William Wilberforce didn’t end slavery in England the first time he tried, Longworth says, and his group isn’t about to give up simply because voters in the most conservative state in America aren’t buying the fetal personhood argument.
The reference to Wilberforce caught my attention. Nancy and I saw Amazing Grace in an Amarillo movie theatre in 2007. We were weighing our options at the time. Did we really want to stay in the criminal justice reform fight? Sure, we had won some important victories, but when you live in the Texas Panhandle you have few illusions. Every struggling rural community of any size is sustained by a state prison and there appears to be zero support for ending mass incarceration. When you have repeatedly slammed your head into a brick wall you sometimes think how nice it would feel to stop. (more…)
The Texas Court of Criminal Appeals has issued a stay of execution in the Hank Skinner case so relevant DNA evidence can be tested. The prosecutors in this case remain adamant that Skinner should die with the evidence untested. Mark Osler (a Friends of Justice board member who teaches law at the University of Saint Thomas in Minnesota) says that what looks like baffling intransigence from the outside springs from the best of motives. But then, so did the crucifixion of Jesus Christ. Osler’s insights originally appeared on the CNN site. AGB
Editor’s note: Mark Osler, a professor of law at the University of St. Thomas Law School in Minnesota, is a former federal prosecutor and the author of “Jesus on Death Row,” a book about capital punishment.
As the nation and the world’s attention turned to the impending execution of Hank Skinner in Texas before a late stay by a Texas court, one question seemed paramount: “Why the rush?” The answer to that question is buried deep inside the psychology of prosecutors and the culture of Texas.
Skinner was scheduled for execution on Wednesday for the 1993 killing of his girlfriend, Twila Busby, and her two sons, until the Texas Court of Criminal Appeals (the top criminal court in that state) issued a stay late on Monday. (more…)
In an update to this story, the Washington Post reports that “Judge Steven R. Emmert denied Skinner’s request in a brief order issued Wednesday and made public Thursday. The order did not explain the judge’s decision.” Thus far, over 122,000 people have signed a petition asking Texas Governor Rick Perry to intervene. Radley Balko’s article, written for the Huffington Post, appears below. AGB
A week from today, Texas death row inmate Henry “Hank” Skinner is scheduled to be executed for the 1995 murders of Twila Busby and her two adult sons. (more…)
Before the State of Georgia killed Troy Davis, I would have bet good money that Texas wouldn’t execute Hank Skinner without bothering to test the DNA evidence. But now all bets are off.
Common sense suggests that a simple DNA test should be performed in the interest of justice. What have we got to lose (other than our reputation as a nation that guarantees liberty and justice)?
The State of Texas argues that Skinner had a chance to ask for DNA testing and he failed to take advantage.
This may strike you as a peculiar argument, but in the Alice and Wonderland world of modern jurisprudence, procedure is everything and common sense counts for nothing. It doesn’t matter what the DNA might tell us; the constitutionally guaranteed window of opportunity is now closed.
Killing Hank Skinner is a bad idea, practically and on principle. But if we’re in the people-killing business, shouldn’t we at least make sure they are guilty of something really bad? If you think so, please keep reading.
Will Texas Kill an Innocent Man Next Week?
Hank Skinner is scheduled to die on November 9. But the state of Texas may execute him without even conducting DNA tests on all of the evidence from his trial, despite a decade of requests from Hank and his lawyers. (more…)
A Gallup poll conducted last week reveals that support for the death penalty in the U.S. has dropped to a 39-year low. According to the poll:
“Sixty-one percent of Americans approve of using the death penalty for persons convicted of murder, down from 64% last year. This is the lowest level of support since 1972, the year the Supreme Court voided all existing state death penalty laws in Furman v. Georgia.”
The poll, conducted October 6-9, 2011, came in the wake of Troy Davis’ execution, which could explain some of the decrease in support for the death penalty. However, Gallup points out that “there have been high-profile executions in the news in previous years without concomitant drops in death penalty support, making it less clear that such events have a direct impact on attitudes.”
Below is a New York Times editorial summarizing a recent study conducted by Stanford law professor John Donohue. Donohue’s research focuses on the relationship between the heinousness of a crime and the likelihood that an individual accused of a crime will be sentenced to death. The results of his research, which shed light on the arbitrary and discriminatory nature of capital punishment in the U.S., indicate that “inmates on death row are indistinguishable from equally violent offenders who escape [the death] penalty.” MW
by Melanie Wilmoth
Would Jesus Christ support the death penalty? Would a modern-day jury sentence Jesus to death?
The Texas Court of Criminal Appeals has issued a stay of execution in the Hank Skinner case so relevant DNA evidence can be tested. The prosecutors in this case remain adamant that Skinner should die with the evidence untested. Mark Osler (a Friends of Justice board member who teaches law at the University of Saint Thomas in Minnesota) says that what looks like baffling intransigence from the outside springs from the best of motives. But then, so did the crucifixion of Jesus Christ. Osler’s insights originally appeared 
In an update to this story, 
Friends of Justice 