Updated: Dec 29, 2020
Fair Punishment Project released Part II of 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. 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. To visit their site and view the report, click here.
The two-part 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 these 16 “outlier counties.” Part II focuses on Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA). Part I, which was released in August, looked at 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. The Court previously found that individuals with intellectual disabilities (Atkins v. Virginia, 2002) and juveniles under the age of 18 (Roper v. Simmons, 2005) should not be subject to the death penalty under the Eighth Amendment.
In conducting its analysis, the Project reviewed nearly 400 direct appeals opinions handed down between 2006 and 2015 in these 16 counties. The Project found:
Fifty-six percent of cases involved defendants with significant mental impairments or other forms of mitigation, such as the defendant’s young age.
Approximately one out of every six cases involved a defendant who was under the age of 21 at the time of the offense.
Forty percent of cases involved a defendant who had an intellectual disability, brain damage, or severe mental illness. In eight of the 16 counties, half or more of the defendants had mental impairments, including: Pinellas (67 percent), Maricopa (62 percent), Mobile (60 percent), Caddo Parish and Miami-Dade (both had 57 percent), and Kern, Hillsborough, and San Bernardino counties (each had 50 percent).
Approximately one in ten cases involved a finding of prosecutorial misconduct. The counties with the highest rates of misconduct include: Maricopa (47 percent), Miami-Dade (29 percent), and Clark (21 percent).
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 less than one and half days. During the mitigation phase, the defense lawyer is supposed to present all of the evidence showing that the defendant’s life should be spared–including testimony from mental health and other experts. This presentation can last several weeks if the lawyers prepare properly. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. This type of mitigation evidence can also be used pre-trial to negotiate a plea agreement.
Ten of the 16 counties had at least one person released from death row since 1976. These 10 counties account for more than 10 percent of all death row exonerations nationwide.
Out of all of the death sentences obtained in these counties between 2010 and 2015, 46 percent were given to African-American defendants, and 73 percent were given to people of color. In Jefferson, 100 percent of defendants sentenced to die between 2010 and 2015 were African-American. In Duval that figure was 87 percent and in Dallas it was 88 percent. In Harris, 100 percent of the defendants who were newly sentenced to death since November 2004 have been people of color.
The race of the victim is also a significant factor in who is sentenced to death in many of these counties. The report noted that in 14 of the 16 counties, not a single white person received a death sentence for killing a Black person. In contrast, in 14 out of 16 counties, at least one Black person was sentenced to death for the killing of a white person. In Orange County 60 percent of the victims were white in the cases involving a Black defendant, even though research has shown that the vast majority of homicides are committed intra-race.
Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts. Just eight out of 71 cases we reviewed from these five counties had a unanimous jury verdict; 89 percent were non-unanimous.
To see their post about Part I, click here.