2017-10-18 13:41:52 UTC
Prosecutors Are Banding Together to Prevent Criminal-Justice Reform----A new
investigation shows that DA associations are thwarting changes to the death
penalty, sentencing, and more.
On March 16, Aramis Ayala, the first black state attorney for the Ninth
Judicial Circuit in Florida, which includes Orlando and Orange counties, took
the podium in front of the Orange County Courthouse and announced that her
office would no longer seek the death penalty. "I have determined that doing so
is not in the best interest of this community or the best interest of justice,"
Ayala said, explaining that she'd based her decision on a host of factors,
including the high costs of death-penalty prosecutions, the lack of a deterrent
effect, and harm to the victims' families. "I do understand this is a
controversial issue," Ayala concluded. "But what is not controversial is the
evidence that led me to my decision."
The impetus for Ayala's announcement was the trial of Markeith Loyd, who was
accused of shooting his pregnant ex-girlfriend in her home as well as a police
officer in a Wal-Mart parking lot. Witnesses saw Loyd firing multiple rounds
into the officer's prone body. The killing inspired particular ire among
law-enforcement leaders, who demanded the death penalty alongside the Florida
attorney general and some lawmakers.
Opposition to Ayala's death-penalty ban came swiftly. Florida Governor Rick
Scott removed her from the Loyd case and then went a step further, removing
Ayala from all of the capital cases in her district - more than 2 dozen - and
reassigning them to Brad King, the state attorney for the neighboring Fifth
Judicial Circuit. King, a former sheriff's deputy, is a steadfast supporter of
capital punishment. Ayala's choice also put Florida's other elected state
attorneys in an uncomfortable spotlight: Many were quick to condemn her,
supported by law enforcement and victims'-rights advocates. Someone sent her a
noose in the mail along with racist messages, and a court employee wrote on
Facebook that Ayala should be "tarred and feathered if not hung from a tree."
Later, she was pulled over by an Orlando cop and subjected to intrusive and
skeptical questioning. (A video of the encounter later went viral.) One former
state attorney predicted that Ayala's decision would lead to a huge spike in
murders, saying on the local news that "I, frankly, was flabbergasted.... When
you don't have a death penalty, bad things happen."
Among those opposing Ayala was the Florida Prosecuting Attorneys Association, a
professional organization that includes the state attorneys from every judicial
circuit in the state. In addition to providing resources and training for
prosecutors, the FPAA provides testimony before the State Legislature, lobbies
for or against pending bills, and writes amicus briefs. After Governor Scott
announced that he would remove Ayala from all of her capital cases, she sued to
stop him, arguing that he was constitutionally prohibited from doing so.
Officially, the FPAA has no position on capital punishment, but in May the
organization filed an amicus brief siding with Scott and arguing against Ayala,
a dues-paying member of the association. The FPAA brief said that Ayala had
violated the separation-of-powers doctrine by effectively setting her own
policy. (At the end of August, the Florida Supreme Court ruled against Ayala in
a split decision.)
Before the amicus brief was filed, I spoke with former FPAA president Glenn
Hess, the state attorney for the 14th Judicial Circuit, who explained the
organization's purpose to me. "At the FPAA, our job as prosecutors is not to
make law," Hess said. "It is to take the law the Legislature makes and enforce
[it] in the state." An investigation by The Nation, however, tells an entirely
different story. Not just in Florida but nationwide, district attorneys'
associations are powerful political actors. They do not just "enforce" the law;
in fact, they help to make it.
"In state after state, we've seen DA associations hold back reform." -- Udi
Ofer, director of the ACLU's Campaign for Smart Justice
District attorneys' associations exist in most states. They consist of
dues-paying members - generally the lead prosecutors from every county or
district in the state - and have bylaws, like most professional groups. As
professional organizations, they also have nonprofit status; their activities
include public education and training as well as lobbying.
For the most part, these prosecutors' associations adopt a "tough on crime"
stance, advocating for legislation that would give them greater discretion to
lock people up. "They all too often act as a roadblock to significant reforms,"
says Udi Ofer, director of the Campaign for Smart Justice at the American Civil
Liberties Union. "In state after state, we've seen DA associations hold back
reforms that are supported by Democrats and Republicans alike."
According to Fordham University law professor John Pfaff, prosecutors are the
single most important factor in the increase of prison populations, because
they tend to file charges even when the evidence suggests that someone should
go free, and generally pursue the harshest sentence they can get. District
attorneys and county prosecutors can opt to drop charges - for example, by
refusing to prosecute marijuana possession - or to favor pretrial intervention.
But Pfaff found that between 1994 and 2008, even as crime and arrest rates
fell, the number of felony charges filed by prosecutors increased. From this
data, he concluded that prosecutors were driving the phenomenon of mass
incarceration through punitive charges and penalties.
Prosecutors have 1 big reason to protect harsh sentencing: Today, around 95 %
of federal and state criminal cases end in a plea bargain. Such agreements, in
which the defendant pleads guilty in exchange for a fixed sentence, avoid the
time and expense of a jury trial, making it faster and cheaper for prosecutors
to close cases. And the more draconian the punishments that a prosecutor has at
her disposal - high mandatory minimums, say, or the ability to charge a
youthful offender as an adult - the more leverage she has to persuade someone
to take a plea bargain instead of risking a trial.
In the last year or so, criminal-justice reform has topped the legislative
agenda in several states, from conservative Florida and Louisiana to liberal
California, and advocates for reform exist across the political spectrum, from
the conservative Right on Crime, the Koch brothers, and former House speaker
Newt Gingrich to the ACLU and Black Lives Matter. In response, prosecutors'
associations have pushed legislators hard to reject such reforms. And, in most
cases, they have succeeded.
In Florida, the FPAA's general counsel and lobbyist of 47 years is Arthur
"Buddy" Jacobs. He lives in Fernandina Beach, an exclusive community on the
state's northeastern tip. An article in the Fernandina Observer, the local
paper of record, describes Jacobs - pictured in a glaringly white suit and
straw hat - giving an eloquent dedication speech at a brass-band ceremony
unveiling a $100,000 restored train depot. A history buff, Jacobs reminisced on
the Confederate past of his adopted hometown and thanked the others who helped
him preserve locally well-known landmarks.
Jacobs has had a bit of trouble with the law himself, making him a
controversial figure among the prosecutors he represents. In 1991, he was
indicted for his role in manipulating St. Louis municipal bonds. After entering
a diversion program and paying a hefty fine, he was accused of the same
behavior, this time in Fernandina Beach. He managed to escape unscathed, but
money troubles followed him everywhere. In 2007, the 11th Circuit found Jacobs
guilty of willful tax evasion based on his profligate spending and disdain for
paying taxes. An appeals court issued an opinion holding that "the record
overwhelmingly shows that Mr. Jacobs willfully attempted to evade or defeat his
taxes," and noted that the record was replete with "badges of fraud." Former
Jacksonville state attorney Harry Shorstein, who has known Jacobs since
college, wanted the FPAA to fire him in the 1990s. "Some of us felt that we
didn't want to be represented by someone under federal indictment," Shorstein
Preserving history is one of Jacobs's gentlemanly pastimes, but he is himself a
living anachronism. In his nearly half-century of work with the FPAA, he has
lobbied for mandatory minimum sentences, lobbied against legislation that would
allow juvenile offenders to remain in juvenile court, and opposed open-records
laws. Most recently, he was the primary author of the FPAA's amicus brief
opposing Ayala on the death penalty. He appears to have taken little of the new
science on juvenile development into consideration, or the fact that, according
to the Pew Research Center, support for capital punishment is declining across
the political spectrum. (Currently, it hovers at 49 %, down from 80 % in the
Prosecutors are part of this trend, too: Their use of the death penalty has
been in steep decline in recent years. But Florida has maintained a troubled
relationship with the practice, and it now has the 2nd-largest death row in the
nation. A report by the Fair Punishment Project counted 5 counties in Florida
among the nation's 20 "most deadly." In Jacksonville, the previous state
attorney, Angela Corey, held the dubious distinction of winning the most death
sentences in Florida. Nationwide, black people are disproportionately sentenced
to death, and there is even social-science research to suggest that the more
"stereotypically black" someone looks, the more likely he is to receive a death
sentence. Indeed, the majority of death sentences are handed down in the region
that had once been the Confederate States of America.
The more draconian the punishments that a prosecutor has at her disposal, the
more leverage she has to force a plea bargain.
Last year, the Florida Supreme Court held that the state's death-penalty
statute - which allowed people to be condemned to death by a non-unanimous jury
verdict - was unconstitutional. All executions were placed on hold until the
Florida Legislature revised the statute to conform with the State Supreme
Court's ruling. Yet there is still some debate about the fate of those
currently on death row who were sentenced by non-unanimous verdicts - about 75
% of the 396 people there.
Throughout Florida's death-penalty controversies, Jacobs and the FPAA have
fought to prevent reform. This past February, when the Florida Legislature was
considering its 1st round of fixes to the unconstitutional death-penalty
statute, Jacobs urged it to push through the necessary changes and resist
further reforms, in line with his belief that the death penalty is a deterrent
and that jurors are "too compassionate." As he exhorted lawmakers, "This is a
real crisis in the criminal-justice system, and it's a real crisis for the
victims' families of these terrible, terrible crimes."
Stephen Harper, a professor of law at Florida International University,
emphasizes that Jacobs and the FPAA are quite simply behind the times. "For 35
years," Harper said, "the FPAA has had unfettered discretion on
criminal-justice policy.... If you look at polling and changing demographics, I
don't think the FPAA are in touch with the attitudes of Floridians."
Ironically, the FPAA's brief against Ayala arguably runs counter to its
members' own interest in maximizing prosecutorial discretion. (The FPAA also
ran into a bit of trouble when it turned out that large portions of its brief
were plagiarized from a blog post.) David Sklansky, a law professor at Stanford
University who studies the role of prosecutors, described this in an e-mail to
me as "odd." Sklansky added: "It's also odd that they accuse [Ayala] of 'using
her own moral code??? when she spelled out, explicitly, her reasons for
deciding not to seek the death penalty, and none of them had to do with 'her
own moral code.'"
Because she's officially a member of the group, the FPAA did send the amicus
brief to Ayala before filing it. She responded by e-mail:
Despite being a dues paying member of the FPAA, I am unaware of the process by
which this Brief was developed. It is beyond clear based on the timing, tone
and content of this brief that you are not truly interested in my opinion but
rather checking a box in the event you get asked about it later. Your complete
failure in genuinely engaging with me on this matter has been deeply
disappointing given what's at stake for all of us.
When I circled back with former FPAA president Hess, he described what Ayala
did as a "violation of the Constitution" and added: "If she had just kept her
mouth shut and said nothing, we wouldn't be talking.... And if she wants to
change the law and run for the Legislature, I will send her $100." When I asked
about the perception of race in the dispute, he asserted that "nobody cares if
she's black, Latino, Oriental, or Asian."
"The Florida Prosecuting Attorneys Association has had unfettered discretion on
criminal-justice policy." -- Stephen Harper, law professor at Florida
The death penalty may be Florida's highest-profile issue concerning
criminal-justice reform, but it's not the only one on which the FPAA has been
active. In 2001, Jacobs opposed legislation similar to laws existing in several
other states that allow 1st-time drug offenders to get treatment in lieu of
jail time. In a brief, he wrote that the proposed legislation violated
Florida's rules "by taking away and/or severely limiting the prosecutorial
discretion of the State Prosecutors of Florida."
In addition to opposing treatment for low-level drug offenders and DNA testing
for people seeking to prove a wrongful conviction, Jacobs has consistently
opposed reforms to Florida's so-called "direct-file" policy, which currently
allows prosecutors to send juveniles as young as 14 directly to adult court
without a hearing. As a result of the policy, Florida sends more kids to adult
prison than any other state in the country; a 2014 Human Rights Watch report
also noted that more than 60 % had been sent there for nonviolent crimes. Many
states, including California, have already begun limiting this practice, based
on advances in neuroscience showing that juvenile offenders should be
considered less culpable for their crimes and more capable of change. Reports
have also shown that people of color account for a disproportionate number of
the youthful offenders sentenced as adults. (All 50 states still allow a minor
to be tried as an adult after a formal judicial determination.)
Just this past summer, Jacobs called the juveniles direct-filed to be
prosecuted in adult courts "bad hardened criminals that wreak havoc over the
state of Florida." He went on to claim that "Florida was rampant in juvenile
crime. We had juveniles in Miami carjacking tourists' cars and folks getting
killed. At a rest stop on I-10, just east of here, we had some folks that were
killed at a rest stop by some teenagers out of Tallahassee." (Less than 3 % of
the young people direct-filed to adult court had been accused of murder.)
Even as much of the country - including conservative Florida - moves left on
criminal-justice reform, Jacobs and the FPAA remain at the forefront of
conservative reaction. In March, I asked Hess whether Jacobs's own legal
troubles might affect his position. Ever the Southern gentleman but noticeably
annoyed, Hess went on a tirade, concluding that Jacobs could remain in office
as long as the 20 state attorneys approved - and, he added, those state
attorneys are "all very high-class people." Also, Jacobs had gotten results:
"He has been an excellent, excellent member of the FPAA," Hess told me. "His
performance has been exemplary."
Louisiana, like Florida, is governed by some of the harshest criminal-justice
policies in the nation. In fact, Louisiana incarcerates more people per capita
than any state in the United States - which incarcerates more people per capita
than any country in the world. But in 2015, Louisiana elected a governor who
promised, among other things, to reform the bloated prison system and cut costs
for the sorely underfunded state.
Governor John Bel Edwards, in conjunction with Pew Research, created a
bipartisan panel, the Louisiana Justice Reinvestment Task Force, which included
everyone from prosecutors to members of the clergy. The task force generated a
report with a list of recommendations intended to reduce the size of
Louisiana's prison population, save money, and bring state law in line with
other red states, such as Texas and Mississippi, that have had success with
decarceration. The report gained the support of business leaders and
conservatives as well as Democrats. This session, the Louisiana Legislature
passed that list of sorely needed criminal-justice reforms, which included
eliminating the sentence of life without parole for juveniles and allowing
elderly inmates a chance at release. The reforms were projected to generate
some $300 million in savings over 10 years, most of which would be invested in
programs to help the people who had been released.
Enter E. Pete Adams, the executive director of the Louisiana District Attorneys
Association. "We are for trying to get something done, but not at the risk to
public safety," he told a local paper. Once the legislative session started,
the LDAA issued its own report opposing every single reform recommendation. The
bulk of the LDAA's disdain was reserved for the recommendations that would have
permitted some people convicted of violent felonies to have a chance at
release. (Most of these concerned inmates who had already served decades in
prison.) Another of Adams's major issues was with the definition of "violent"
offenders - a category in which he wanted to include some people convicted of
nonviolent crimes, because, he argued, they might have had a violent past.
"If you give a legislator the opportunity to go with either the Innocence
Project or their DA, they???re going with their DA." - ?a Louisiana state
Will Harrell, the founder and leader of Louisianans for Prison Alternatives,
argues that "the LDAA's opposition to sensible reform is out of step with our
neighboring states, the Louisiana people, and even with the honest opinion of
most state legislators. Frankly," he added, "I even believe their voice at the
Legislature - Pete Adams - is out of step with the emerging leadership of the
LDAA. The problem is, he's very good at hiding the ball and spooking folks in
the Legislature, and that's why the LDAA is the most formidable obstacle to
reform." This is no exaggeration: From 2012 to 2015, criminal-justice bills
backed by the LDAA had an 85 % rate of passage in the Louisiana Statehouse,
while criminal-justice bills it opposed passed only 38 % of the time.
Hillar Moore, the ex-president of the LDAA and the lead prosecutor in East
Baton Rouge Parish, spoke with me this past spring and was vehement that the
LDAA wasn't rejecting the changes outright, but rather wanted to conduct
further research and suggest amendments to the bills up for debate. "We've made
it clear that we want to work with everyone," Moore said, but "there are some
[issues] that are nonstarters for us," including any provision to release
inmates convicted of violent crimes. (For his part, Adams refused to comment
for this story. I conducted my interview with Moore in April, but he wouldn???t
comment further after the LDAA's opposition paper was released.)
The association's strategy worked: In mid-May, Governor Edwards announced that
he and the prosecutors had reached a compromise. While Edwards attempted to
save face by insisting that most of the original reform recommendations had
been retained, many key provisions had been gutted, including one that would
have eliminated sentences of life without parole for youthful offenders -
something that many states have already outlawed and that the US Supreme Court
has severely limited.
Adams, who is easily recognized by his bow ties and bushy gray mustache, has
been the LDAA's executive director for 40 years, representing its interests in
the public eye and with the Legislature. He represents the model of old-school,
tough-on-crime prosecutors. Yet even as new and younger district attorneys are
elected - some of them running on a platform of reform - Adams remains in
power, driving LDAA policy. The LDAA has also retained the services of a
part-time lobbyist, prosecutor Hugo Holland, who was famous for putting people
on death row and has been accused by advocates and higher courts for concealing
exculpatory evidence in capital cases. In 2011, Holland and another prosecutor
purchased machine guns and patrolled Caddo Parish, pretending to be police
offers. Caddo Parish, once known for having the most death-row inmates in
Louisiana, was forced to fire Holland, but Adams has kept him on the payroll.
During his tenure with the LDAA, Adams has also argued that the burden of proof
necessary for conviction shouldn't be raised; that juveniles should be tried as
adults; and that wrongful convictions don't occur in Louisiana - or at least
not as many as publicized. As a representative of the LDAA, he has lobbied
against eliminating the habitual-offender law, which imposes draconian
sentences even on those repeatedly convicted of nonviolent crimes, and he has
opposed eliminating life without parole for juveniles convicted of non-homicide
crimes, a practice that was deemed unconstitutional by the US Supreme Court in
2010. He has also lobbied for stricter punishments for people who misuse
Supplemental Nutrition Assistance Program benefits (i.e., food stamps).
Adams's most passionate efforts, however, have been reserved for the
beleaguered public-defender system in Louisiana, which is so underfunded that
judges this past spring dismissed cases because there were no lawyers to
represent the defendants. The Southern Poverty Law Center filed a lawsuit this
year arguing that Louisiana's failure to fund public defenders violated the US
Constitution's guarantee of counsel. Yet for Adams, the problem is a
misallocation of funds: The public defenders, he argues, need less, not more,
money. According to multiple sources, Adams meets regularly with the elected
public defenders and discourages them from asking for state funding. As Adams
told a local paper back in 2002: "You have well in excess of 90 % of people who
find themselves indigent and that number should bear some scrutiny. A
reasonable person would question the veracity of that. The hidden assumption is
that money solves all problems - I can't answer that. They ought to begin with
an analysis of how [public defenders] spend their money." And yet Louisiana is
among the poorest states in the nation, with a poverty rate of around 20 %.
Adams's arguments haven't changed at all in the past 15 years, even as the
public-defender system continues to get worse. Public defender Derwyn Bunton of
Orleans Parish has said that the LDAA is "a very active co-conspirator in mass
incarceration in Louisiana."
Adams has even attacked the resources that public defenders need to keep up
with the cases on Louisiana's death row, a major cost. For Adams, this isn't a
problem caused by the death penalty (which Louisiana has considered eliminating
but for the opposition of the LDAA and other groups); it's the fault of the
public defenders. He has argued that too much money was being "wasted" to
defend people facing execution, because those funds went to larger law firms
and nonprofit organizations instead of individual public defenders. (The state
public defender in Louisiana has flatly declared that the notion of people
"getting rich" from their work on death-penalty cases is ludicrous.)
At the same time, the LDAA has increased funding for itself without any
noticeable improvement in the quality of criminal justice. Just a few years
ago, for example, the LDAA requested authorization from the Legislature to
establish internal debt-collection agencies to extract payments of court fines
and fees from defendants - with a 20 % premium being kept by the prosecutors.
In 2016, the LDAA pushed for passage of a bill that would have authorized a
private corporation to operate an automated system to read license plates and
issue tickets in nine parishes statewide, with 30 % of the proceeds reaped by
district attorneys, and the remaining 70 % being split by sheriffs, the
corporation, and other parties. Prosecutors across the state also abuse what
are known as "diversion fees": unregulated monies paid to avoid prosecution.
For instance, according to the office of Louisiana's legislative auditor, which
collects information reported by the parishes themselves, the 18th Judicial
Circuit reported $1.19 million in diversion-fee income from just 132
participants. And according to the 2016 legislative auditor's report, more than
30 % of the income from the state's district-attorney offices comes from fines
and fees; in some parishes, over 50 % of the income comes from diversion fees
and tickets. Finally, Louisiana's prosecutors are known for their own legal
troubles: In 2016 alone, 3 of Louisiana's 42 elected district attorneys were
convicted on corruption and other criminal charges.
The Louisiana District Attorneys Association has increased funding for itself
without any improvement in the quality of criminal justice.
Even so, Louisiana's DAs hold particular sway over public opinion as
representatives of justice and experts on law and order. Flozell Daniels, who
was a member of the Louisiana Justice Reinvestment Task Force and is now the
CEO and president of Foundation for Louisiana, puts the state's struggles with
criminal-justice reform squarely on the backs of prosecutors, and the LDAA in
particular. In a guest column for the New Orleans Times-Picayune, Daniels noted
that "the District Attorney Association representative on the task force
supported the overwhelming majority of the recommendations," arguing that the
LDAA is dissembling when it paints the task force's reform recommendations as
radical. And his view is supported by polling in Louisiana, which suggests that
the vast majority of residents want reform, including business leaders and
But the prosecutors persist, because they can win. As a Louisiana state senator
observed when criminal-justice reform was on the table in 2012: "If you give a
legislator the opportunity to go either with the Innocence Project or with
their DA, guess what? They're going to vote with their DA."
The influence of district attorneys' associations extends beyond the usual list
of red-state suspects. In California, for example, prosecutors sued last year
to prevent Proposition 57 - a suite of progressive changes to the state's
criminal law, including reduced sentences - from moving forward. The California
District Attorneys Association (CDAA) argued that Governor Jerry Brown violated
a recently enacted law requiring a new comment period after substantial
revisions. (Brown's office argued that the prosecutors had been given a day to
consider the revised bill.) Proposition 57 is designed to decrease the state's
prison population by making more criminal charges punishable by serving time in
county jail and by offering some long-serving inmates the chance to make parole
earlier. The law, which voters overwhelmingly approved last November, also
eliminates giving prosecutors the power to send juvenile offenders directly to
The CDAA has long opposed legislation that would result in lesser penalties,
going back to the change in California's draconian "3 strikes" law in 2012.
Since the passage of Proposition 57 and other laws like it, the fearmongering
has reached a fever pitch, with prosecutors asserting that reducing the
sentences for those convicted of nonviolent crimes would result in communities
being inundated by the homeless and drug-addicted. (A representative for the
CDAA refused to comment for this story, writing in an e-mail: "Most all of the
prop [sic] 57 information was well Covered [sic] by the press. I'm not going to
get back into it.")
Rectifying wrongful convictions is yet another reform that prosecutors have
resisted. Earlier publications by the CDAA include a 40-page rebuttal to a
report by the Northern California Innocence Project showing a significant
degree of prosecutorial misconduct in cases of wrongful conviction. Currently,
the CDAA is requesting changes to legislation that would reduce the imposition
of cash-bail requirements, which has already passed the State Senate and awaits
approval in the Assembly. As the ACLU's Udi Ofer observes, "No matter whether
it's a red state or blue state, DA associations are guided by the same
principles - mainly seeking to maintain their members' unfettered powers."
There is also a National District Attorneys Association, which is led by Mike
Ramos, the Republican DA from San Bernardino, California. While not officially
affiliated with the state-level prosecutors' associations, it has taken
similarly aggressive stances. In September 2016, the President's Council of
Advisors on Science and Technology issued a report, "Forensic Science in
Criminal Courts," offering findings on several types of forensic evidence
commonly used in courts that have now been discredited by scientists. The PCAST
report found that the use of bite marks and shoe prints had no evidentiary
basis. The NDAA immediately issued a rebuttal arguing that the report was
"scientifically irresponsible," even though the council was composed of many
experts in their fields. The NDAA has also received a direct boost from the
Trump administration: Upon taking office, Attorney General Jeff Sessions
declined to renew the National Commission on Forensic Science, which was
chartered under the Obama administration. The NDAA applauded the decision.
Thus far, Sessions has proved more than friendly to the interests of
prosecutors' associations, even as voters appear increasingly inclined to take
the ramifications of mass incarceration more seriously. In May, Sessions issued
a memorandum to federal prosecutors requiring them to "charge and pursue the
most serious, readily provable offense." This is a direct reversal of the Obama
administration's policies, which generally allowed federal prosecutors to
exercise discretion in charging and sentencing. Sessions has implied much the
same policy when it comes to marijuana, indicating that he will reverse the
Obama administration's policy of not interfering in states that have legalized
pot use. (Sessions even once said that he supported the death penalty for pot
While they apply only to federal prosecutors, Sessions's directives - along
with his reliance on rhetoric from the War on Drugs - have given new relevance
to the words of people like Pete Adams and Buddy Jacobs, another set of
throwbacks. Like Sessions, Adams and Jacobs grew up in the Jim Crow South and
established their careers in the early years of the 1980s tough-on-crime era.
Yet they have remained in power ever since, part of a good-old-boy system that
has protected the consolidation of prosecutorial power and opposed anyone who
seeks to dilute it.
Already, Sessions has toured multiple cities that he has deemed "violent" to
provide backing for those prosecutors willing to come down hard on groups of
people - such as gang members and undocumented immigrants - who are easy to
isolate and already have a negative profile. Baton Rouge is among the 12 cities
that Sessions chose as part of his fledgling initiative (Chicago and Baltimore
didn't make the list). The rhetoric of Sessions and his boss, Donald Trump -
depicting a scourge of black and brown people overtaking urban areas - makes
the efforts of reform-minded prosecutors like Ayala more difficult, even as it
emboldens hard-liners. District attorneys' associations may be championing the
criminal-justice policies of the past, but under Trump's administration, they
could enjoy a new lease on life.
(source: Jessica Pishko is a San Francisco-based writer for the Fair Punishment
A Long Decline in Executions Takes a Detour----Recent court rulings and
start-stop access to lethal drugs push numbers up this year.
For years, the number of prisoners put to death in the United States has been
in decline. That is still true, but with a wrinkle: this year will be the 1st
since 2009 in which there were more executions than the year before. The grim
milestone will likely be crossed on Wednesday night, when Anthony Shore is
scheduled to be executed in Texas. Unless the courts intervene, it will be the
21st execution of the year, 1 more than last year. 8 others are scheduled
through the end of the year.
Why does this matter? The upswing does not suggest that executions are likely
to become more common, but it does grow out of recent courtroom battles. Chief
among them is a big victory that the Supreme Court gave to state officials back
in 2015. Officials had been looking for new drugs to use in lethal injections,
and fighting to keep the sources secret from defense lawyers, as pharmaceutical
companies kept pushing to keep their products out of death chambers. The
court's decision in the case of Glossip v. Gross set a high bar for arguments
that new drug combinations would violate the Constitution's ban on "cruel and
The upshot has been to clear the way for executions. This year, Ohio and
Arkansas began executing again after long pauses (3 years in Ohio, 11 in
Arkansas). Arkansas was, publicly at least, trying to beat an expiration date
for their store of the drug midazolam, a sedative, after years of litigation.
Ohio had been tied up in the courts since prisoner Dennis McGuire visibly
gasped and choked during his 2014 execution. Other states are trying new drugs:
this summer, Florida became the 1st to execute with etomidate, an anesthetic,
and Nevada is planning an execution for November involving fentanyl, the opioid
implicated in thousands of overdose deaths in recent years, as well as Valium.
Cases can take a decade or more to reach the end of appeals, and the stop-start
nature of drug availability, as well as litigation-imposed hiatuses, have meant
that numerous prisoners can reach the end and accumulate in a queue. This
happened at the national level when the Supreme Court examined lethal injection
methods in 2008. "We tend to see 'execution sprees' in individual states," said
Robert Dunham, executive director of the Death Penalty Information Center,
"followed by significant drop off in executions in those states." In Arkansas,
the execution of four prisoners in April sparked a media frenzy. In 2015,
Missouri had the highest execution rate per capita as the state cleared a
backlog. In 2016, Georgia had more executions than any other state as it
cleared cases backed up because of drug litigation, according to the Chicago
Tribune. None of these states have carried out many executions since these
Beyond the drug issues, executions in an individual state can stop suddenly
when a big case casts others in doubt. The Supreme Court struck down the death
sentence of Florida prisoner Timothy Hurst last year, ruling that jurors,
rather than a judge, should be the ones making key decisions about whether he
should be sent to death row. The ruling had potential ramifications for dozens
of prisoners whose trials involved the same problem, and executions have slowed
to a trickle - 1 last year, 2 this year, and 1 more scheduled - while lower
courts make sense of how to apply the ruling. A similar dynamic could arise in
Alabama, where there have long been challenges to the state's practice (ended
this year) of letting judges overrule juries to hand down death sentences.
Looking down the road, Texas, long the country's leading executioner, will be
the state to watch. Executions slowed to 7 last year, and might rise above ten
this year, but it will still be far less than the 40 carried out in 2000.
Lethal injection drug battles have had little effect, but Texas prisoners do
keep getting stays of execution. This may be due in part to a 2013 law
bolstering the ability of prisoners to contest the forensic science that got
them convicted. A 2015 law required news of execution dates to be better
circulated among defense lawyers. "The defense lawyers are getting better and
better," Judge Elsa Alcala of the state's Court of Criminal Appeals told The
Texas Tribune last year. "They're able to bring things forth that have never
been brought forward before."
In Texas and elsewhere, executions are likely to keep declining for 1 big
reason: juries are handing out fewer death sentences. Texas sentenced only
three people to death last year, and the situation is even more pronounced in
Virginia, which has carried out the 2nd-most executions since the 1970s, but
only 2 this year (and none last year). The state's death row has dwindled to
four men. (Law professor Brandon Garrett has examined the reasons for this
decline in death sentences.)
Support for the death penalty by President Donald Trump and Attorney General
Jeff Sessions has not yet reinvigorated its use, which is mostly a state-level
issue, and on Election Day last year voters in several locales responsible for
high rates of death sentences in the past, from Houston to Tampa, elected
district attorneys who promised to pursue the punishment more sparingly. "There
will be substantially fewer prisoners left to execute in the long run," Dunham
But that's the long run.
Federal inmate sparred death penalty for 4th murder
A federal inmate with end-stage renal disease has been spared the death penalty
for his 4th murder conviction and the second committed while imprisoned.
The Springfield News-Leader reports that federal jurors couldn't reach a
unanimous decision Monday in the case against 61-year-old Ulysses Jones Jr.
Defense attorney Shane Cantin says that means the slowing dying man will
receive another life term when he's sentenced.
The same jurors had convicted Jones earlier this month of using a makeshift
knife to kill fellow inmate Timothy Baker as he slept in 2006 at the U.S.
Medical Center for Federal Prisoners in Springfield. Court records say another
inmate survived being stabbed.
Jones also has been convicted of 2 robberies and murders in 1979 and 1980 in
Washington, D.C., and another prison murder in Virginia.
(source: Associated Press)
A service courtesy of Washburn University School of Law www.washburnlaw.edu
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