Harvard Law School's Fair Punishment Project Report on Death Penalty


New Report Finds Counties That Use Death Penalty the Most Are Plagued by Prosecutorial Misconduct, Bad Lawyers, and Racial Bias

Forty-Four Percent of Death Penalty Cases Involved Defendants with Intellectual Disability, Mental Illness, or Brain Damage; Nearly One Out of Five Involved Defendants Under Age 21


"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. 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 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. 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. While this is just one data point for determining the quality of legal representation, this finding reveals appalling inadequacies. In Duval County, Florida, the entire penalty phase of the trial and the jury verdict often came in the same 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.

Additional findings:

Five of the eight counties had at least one person exonerated from death row since 1976. Harris County has
had three death row exonerations, and Maricopa has had five.


Out of all of the death sentences obtained in these counties between 2010 and 2015, 41 percent were given to African-American defendants, and 69 percent were given to people of color. In Duval, 87 percent of defendants sentenced to death were Black in this period. 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. In Mobile County, 67 percent of the Black defendants, and 88 percent of all defendants, who were sentenced to death were convicted of killing white victims. In Clark County, 71 percent of all of the victims were white in cases resulting in a death sentence. The report noted just three white defendants sentenced to death for killing Black victims between 2010 and 2015 out of 116 death penalty cases. One of those cases occurred in Riverside County, and that defendant was also convicted of killing two additional white victims. The two other cases were from Duval County.


Five of the 16 “outlier counties” are from Florida and Alabama, the only two states that currently allow non-unanimous jury verdicts. In Duval, 88 percent of the decisions in the review period were non-unanimous, and in Mobile the figure was 80 percent.


Rob Smith, one of the report’s researchers, noted, 'In the small number of counties where the death penalty still exists, we found of evidence of egregiously bad defense lawyering, rampant prosecutorial misconduct and overzealousness, and a pattern of racial bias that undermines the fairness of the death penalty.'

'It has become clear that a significant proportion of individuals we are sending to death row suffer from serious mental impairments, or are so young in age, that they appear to be nearly indistinguishable from the categories of people whom the Supreme Court has said we shouldn’t be executing due to their diminished culpability,' said Carol S. Steiker, Professor of Law at Harvard.

“In looking at these outlier counties, it is very clear that race is still playing a role in determining who is sentenced to die,” said Professor Frank Baumgartner of the University of North Carolina at Chapel Hill.

"This report vividly shows how the last remnants of the American death penalty still survive: in counties that have wholly crippled the defense function,” said Professor Brandon Garrett of the University of Virginia School of Law. “Conversely, in the places that provide minimally fair resources for defense representation, we have seen a steep decline in death sentences. Readers of this report will learn that what is left of the death penalty persists only through extreme unfairness and arbitrariness."

Part II of this report, which will be released in September, will look at the remaining eight “outlier counties,” including: Dallas (TX), Jefferson (AL), Pinellas (FL), Miami-Dade (FL), Hillsborough (FL), Los Angeles (CA), San Bernardino (CA), and Orange (CA)."

For more information, please contact Stefanie Faucher at 510-393-4549 or sfaucher@8thamendment.org.

About the Fair Punishment Project:
The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. As a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, we work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias, and to illuminate the laws that result in excessive punishment.

For more information visit: www.fairpunishment.org.

Read the full report: http://fairpunishment.org/wp-content/uploads/2016/08/FPP-TooBroken.pdf

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