racial disparity
Relegating McCleskey
Apr 23rd
Twenty five years ago yesterday, the United States Supreme Court issued one if its most shameful opinions in recent history: McCleskey v. Kemp, in which it willfully turned a blind eye to racial discrimination in death penalty cases and prohibited citizens from raising claims of racial bias leading to the imposition of death sentences. The Court in McCleskey, assuming that the Baldus study [.doc] was accurate, nevertheless:
categorically rejected the idea that statistical evidence was sufficient to show a constitutional violation, requiring instead that a defendant show “exceptionally clear proof” of discrimination under the facts of his or her own case. This near impossibility effectively shut the door to any thing short of “smoking gun” evidence of intentional discrimination — evidence that is unlikely to exist, or unlikely to be discovered by the defense.
From this post the ACLU’s McCleskey project website. That is to say, the Court made it near impossible to prove the standard, particularly in light of the fact that contacting individual jurors and asking them about their personal racial biases is a non-starter. The Court’s rationale in rejecting McCleskey’s claim wasn’t that racial discrimination in the criminal justice system didn’t exist, but rather that it was “inevitable” and, as Justice Brennan put it, the majority was afraid of having to dispense too much justice. Rather than confront the reality that the system is terribly flawed and skewed against people of color, especially in the death penalty context, the Court did what was natural to any petulant 5-year old: run in the other direction, hands over their ears, yelling at the top of their lungs so as to not let reality set in.
[Interestingly, as heretofore unknown to me, was a Scalia memorandum prior to the decision in McCleskey, which said:
Since it is my view that the unconscious operation of irrational sympathies and antipathies, including racial, upon jury decisions and (hence) prosecutorial decisions is real, acknowledged in the decisions of this court, and ineradicable, I cannot say that all I need is more proof.
Shorter Scalia: it's there, it's real and we can't change it, so why even bother?]
McCleskey, of course, is also famous for being the one vote that Justice Powell, in his later years, regretted. Which brings me to the point of this post. While no courts would ever seriously consider a systemic bias claim in light of McCleskey, that doesn’t mean legislatures aren’t free to mandate such a consideration. In 2009, North Carolina did just that, with its Racial Justice Act. And last week, we saw the results. In the first ever decision applying the RJA, Superior Court Judge Greg Weeks held [PDF] that Marcus Robinson’s death sentence must be commuted to life without the possibility of release because of racial bias in the jury selection process:
Race played a “persistent, pervasive and distorting role” in jury selection and couldn’t be explained other than that “prosecutors have intentionally discriminated” against Robinson and other capital defendants statewide, Weeks said. Prosecutors eliminated black jurors more than twice as often as white jurors, according to a study by two Michigan State University law professors Weeks said he found highly reliable.
The Michigan State University study [PDF] produced some stunning findings:
It reported that, of almost 160 people on North Carolina’s death row, 31 had all-white juries, and 38 had only one person of color.
More here. The MSU study of capital charging and sentencing found that those who kill whites are more likely to get the death penalty than those who kill blacks. The MSU study found that a defendant is 2.6 times more likely to get the death penalty if the victim is white.
It isn’t enough for us in the system to “know” that there is racial bias. It isn’t enough for us to throw our hands up and shrug. It isn’t enough that we pay lip service. We must relegate McCleskey to the dustbin of history, alongside cases like Dred Scott and Plessy v. Ferguson. We must do something more. David Baldus, may he rest in peace, did. Gov. Beverly Perdue, who vetoed a repeal of the RJA, did. Judge Greg Weeks did.
Who’s next?
It’s time for real reform
Mar 3rd
Years ago, when two men broke into a house overnight in the suburban town of Cheshire, CT and in the most gruesome manner imaginable killed three women, leaving one survivor, the calls for an overhaul of our criminal justice system were swift and unrelenting (I could have linked every word in that overwrought sentence to a separate post, but I’ll spare you and leave you with just this link instead). Some proposals – three strikes laws, for instance – were thankfully dispatched as ineffective and onerous, while others increasing penalties and creating new laws where old ones already existed were passed and continue to terrorize our criminal courts to this day.
But there was an event and swift, decisive reaction. There was outrage and fist-thumping and a general cacophony best described as madness.
Now, some 5 years later, there are equally troubling events bubbling to the surface in this land of steady habits. These events demand a similarly swift and decisive response from those that purport to speak on our behalf. The difference, however, is that this response needn’t be born of passion, but rather of compassion and logic.
First – and forgive me for being so late to this game – the wound that has opened and refused to scab and heal: racial profiling. Starting with the indictment of 4 East Haven police officers, the mayor’s boneheaded remarks, the long-overdue resignation of the police chief all the way up to the Hartford Courant’s analysis of over 10,000 traffic incident reports, it should be clear to everyone, not just those who are nestled inside the system, that there is an undeniable bias against minorities:
[Just the other day, I was viewing this slideshow of photographs taken by a reporter in 1983, documenting the protests against the KKK right here in CT and for a brief moment, deluded myself into thinking that racism and racial stereotyping were thankfully a thing of the past. Don't make the mistake I did. It's still there. You just can't see it.]
The disparity was most striking among Hispanic motorists, who were more likely than both whites and blacks to be ticketed in each of 13 categories of violations — such as speeding, cellphone violations, running stop signs and improper license-plate display — for which there were at least 1,000 stops. Black drivers fared worse than whites in 10 of the 13 categories.
For violations of state laws on tinted windows, white motorists were ticketed 12 percent of the time. For blacks and Hispanics, the figure was 17 percent and 24 percent, respectively.
Among drivers stopped for an improper turn or stop, blacks were nearly 50 percent more likely to be ticketed than whites. Hispanics were twice as likely.
That this is something that should be prohibited occurred to the wise men of the Senate as far back as 1999, when they passed a state law outlawing profiling and requiring each department to submit racial data for analysis. But like a bandaid on a gaping head wound, it was never more than lip service. The reason for that, of course, is that this problem is systemic. It’s also a problem without a solution, at least as currently imagined. So let’s assume someone gets pulled over because of racial profiling and gets a ticket. So what? What can anyone do about it? What’s the remedy? Short of a vindictive prosecution type of argument, how is someone even going to prove it? And what’s the legal basis for a judge or prosecutor to take that into account if we ever get over the hurdle of making them believe that that’s the cause of the stop?
The change has to come from the system, not imposed on it. Those in power – judges and prosecutors – have to first admit that this problem exists and then view stops with skepticism and suspicion and not take the word of police officers as gospel.
A few years ago I worked with a clerk who was a young Hispanic male. In the three years we worked together, he got 7 tickets, all from the same police department in the town where our office was. We all knew he got pulled over because he was Hispanic. Fat load of good it did him. He still had to pay 7 tickets.
The only other solution, of course, is the wholesale federal indictment and prosecution of errant officers. This, obviously, is not tenable. But there have to be repercussions; a system purporting to provide justice cannot turn a blind eye to the injustices that populate its halls on a daily basis.
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Let’s play a little game. I’ll posit some well known facts and then I’ll tell you whether they’re true or not.
Q: Is it true that all sex offenders kill their victims?
A: No.
Q: Is it true that all sex offenders are possessed by the devil and can’t even be killed by the Colt?
A: No.
Q: Is it true that the minute you let a sex offender out of jail, he goes and eats another baby?
A: No.
Q: Is it true that sex offenders have the highest (or even high) rate of recidivism?
A: No.
A study [PDF] by the state Office of Policy and Management has finally vindicated what I (and others) have been saying for a long time now: sex offenders don’t reoffend at the same rates as other felons and the common perception of their rates of recidivism is incorrect. From the study:
The study tracked 14,398 men for a five-year period following their release or discharge from a Connecticut prison in 2005. In that cohort, 1,395 men had a previous arrest for a sex offense, 846 had a conviction and 746 served a prison sentence, either the one ending in 2005 or an earlier one, for a sex offense.
Looking at the 746 men who had served time for a sex crime, 27, or 3.6 percent, were arrested and charged with a new sex crime; 20, or 2.7 percent, were convicted of a new sex offense; and 13, or 1.7 percent, were returned to prison for a new sex crime. Many among the 746 committed other crimes — many for parole violations or violating the conditions of the sex offender registry — but not sex crimes.
Those are spectacularly low rates (yes, yes, I know, one child is one child too many) that don’t justify the resources and the energy put into incarcerating these offenders and nor do they justify the onerous sentences handed out to all and sundry.
Obviously there are those who have committed grievous offenses and must be punished accordingly, but that’s exactly my point: that, contrary to popular belief, sex offenders aren’t one-size fits all and we must treat them as such. There are those who are low risk, those who are medium risk and those who are high risk. There are those who are misguided teens with angry parents and those who are truly predatory. Our system paints them all with the same scarlet letter and such a homogenous view does nothing to keep us safe or to put our resources where they are most needed.
The Court article linked to above calls for the creation of a tiered registration system. There already exists a Risk Assessment Board. Fund it. I have additional suggestions: pass legislation that makes it clear that an offender does not have to admit to committing the crime during treatment, that they don’t have to confess to other crimes. People are routinely violated (yes, I know, it’s an awful word) for failing to “admit” their crime during treatment even if they steadfastly maintained their innocence throughout the proceedings. Hey, here’s a news flash: innocent people go to jail all the time.
Let’s focus our resources on determining who out of those truly pose a danger and who can be rehabilitated. The less people we ostracize, the safer we are.
And so as this short legislative session continues, the question comes into focus: will our legislature be strong enough to eschew the faulty “tough on crime” for the more appropriate “smart on crime”? Will these events – the racial profiling and the studies – be enough to jar them out of their steady habits and, for once, enact some meaningful reforms?
CT death penalty nothing but arbitrary
Jan 9th
Only today did I stumble across this October 2011 study [PDF] [also available here] on the arbitrariness of the death penalty in CT (via the NYT), which seems to be an update of this 2007 study. Both are by Yale and Stanford lawprof John Donohue, hired by the public defenders office and the attorneys representing death row inmates in the long-ongoing racial disparity litigation here in CT.
The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:
Of those [4686 murders], 205 were death-eligible cases 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.
In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:
It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.
The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.
It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.
The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:
not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial. Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23). A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.
For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number. Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.
Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group. The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.
The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:
1. There are enormous and unexplained geographic disparities.
2. Death sentences are not confined to the worst murders.
3. There is gender bias in death sentencing.
4. There is racial bias in capital outcomes.
5. There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.
That sounds awfully like the State’s expert agrees with the defense expert.
The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.
Prosecutor Connelly resigns
Jan 14th
You may or may not have heard, but the State’s Attorney for the Waterbury Judicial District – and the man responsible for sending the most inmates to death row in CT – has just resigned. Justice Richard Palmer, chair of the Criminal Justice Commission, which oversees the State’s Attorneys in CT, issued a statement that Connelly had resigned effective February 1st:
Palmer stated that the resignation follows an inquiry undertaken by the commission into allegations regarding Connelly’s conduct while in office. Palmer further stated that, because the commission’s inquiry involved a personnel matter, and because the allegations have been the subject of an investigation by federal authorities, he was not free to discuss details of those allegations at this time.
You might recall that back in August I posted that Connelly was the subject of a federal investigation into whether he had accepted compensation from his good friend – and defense attorney Martin Minella – in exchange for favorable treatment of Minella’s clients. That Federal investigation is still ongoing. Palmer’s statement is particular noteworthy because it seems that the Commission had conducted its own inquiry into this alleged unethical conduct and was ready to issue some form of punishment. That has now been rendered unnecessary by Connelly’s resignation:
Palmer said that the commission had honored a request that it refrain from engaging in any activities in furtherance of its inquiry that might have impaired or otherwise interfered with the federal investigation. Palmer also said that despite this limitation on the commission’s inquiry, it was prepared to take appropriate action with respect to the allegations against Connelly, but that any such action has been rendered unnecessary by Connelly’s resignation.
Now that may or may not mean anything about the “action” the commission was ready to take, but it certainly does indicate that Connelly was to receive some form of rebuke, separate from the Federal investigation.
The disproportionate number of death sentences originating in Waterbury had been the driving force behind a racial and geographical disparity lawsuit that is still pending.
What this means for the state of the death penalty in Connecticut or for those who were tried by Connelly in capital and non-capital cases is anyone’s guess. Mine is that there will be no consequences and that’s a damn shame.
CT’s top death prosecutor in federal probe
Aug 10th
I stumbled across this brief news item today, which could have monumental consequences for the death penalty in Connecticut, among other criminal justice issues. Waterbury’s chief prosecutor and former Commissioner of Public Safety John Connelly is apparently the subject of a Federal grand jury investigation, with allegations of improper consideration of his good friend, defense attorney Marty Minella’s clients, in exchange for gifts and vacations, swirling around the courthouse.
Connelly is known by most in the State as the prosecutor who put most of CT’s death row inmates on the row. The proportion of death row inmates from his jurisdiction have prompted valid calls for an examination of the application of the death penalty in Connecticut and allegations of racial and geographical disparity in sentencings and death penalty prosecutions. Connelly has a reputation for being a ruthlessly efficient prosecutor, who makes juries melt in his hands, and up to now, has been beyond reproach.
One can only begin to ponder the implications on the future of the death penalty and the criminal justice system as a whole if this story has any legs, if the federal probe turns into an indictment and a prosecution.
According to several sources who asked not to be identified, the feds are looking into whether Connelly’s ties with Atty. Martin Minnella have grown improperly close, and whether prosecutorial behavior in certain court cases can be connected – directly or indirectly – to gifts, vacations and other emoluments. The sources say federal investigators have seized records from both Minnella and Connelly, and that the list of potential witnesses is growing. Tom Carson, a spokesman at the U.S. Attorney’s Office in New Haven, said only, “We can neither confirm nor deny the existence of a grand jury investigation.”
Connelly has been on the job in Waterbury since the 1980s. Over 25 years, he has developed a reputation as a take-no-prisoners prosecutor who has, among other things, sought, and won, the death penalty in several big cases.
By last count, there were 6 inmates sent to death row by Connelly, of which two had their death sentences reversed. There are currently 9 on death row, excluding those two.
[It's really important for me to state this here: this is based on "anonymous sources" and it is about the very, very secretive federal grand jury. The extent of the investigation may be different, its focus may be different. But I've now heard this from several sources (yes, I have sources), who have other "anonymous sources", so it's pretty clear there's something going on, we just don't know exactly what.]
One man’s regret is another man’s disparity
Aug 2nd
Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury’s decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question is at what point that risk becomes constitutionally unacceptable,” Turner v. Murray, 476 U. S. 28, 36, n. 8 (1986). McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do.
Justice Powell, writing for the majority in McCleskey v. Kemp.
["I have come to think that capital punishment should be abolished."] Asked whether he would change his vote in any of the cases that had come before him, the Justice replied: “Yes, McCleskey v. Kemp.” Indeed, he added that he now found capital punishment itself unworkable and would vote against it in any case.
Justice Powell, to his biographer John C. Jeffries, from this contemporaneous account. McCleskey, courtesy of that opinion by Justice Powell, was the (pardon the pun) death knell for Constitutional challenges to the death penalty itself. Sure, in Federal courts we now challenge the method of the imposition of the death penalty, but any direct challenge to its Constitutionality is foreclosed by a cursory cite to McCleskey. McCleskey was a classic ivory tower opinion: it eschewed the actual effect of a law on the individuals of the country in favor of a more elusive “discriminatory purpose” test. A test that is simply impossible to meet. So while the evidence continues to pile up that there is a severe disparity in the application of the death penalty, the conscience of the country is placated by the hollow mantra that while that may be true, it doesn’t matter, because no State would ever intend to discriminate against minorities. The effect is an unfortunate side-effect.
Wishful Wednesday
Mar 9th
In what has by now become a ritual dance, every year the state legislature toys with bills meant to enact some real reform in the criminal justice system. Every year, like the sucker I am, I get seduced, dancing the dance, enjoying the promise of a moonlit sonata. Every year, like the battered spouse, I know it will be different. I believe and I hope and I pray.
So here we go again.
Tomorrow, the judiciary committee is set to conduct public hearings on three very important bills:
S.B. No. 230 (RAISED) AN ACT CONCERNING THE VIDEOTAPING OF CUSTODIAL INTERROGATIONS.
H.B. No. 5273 (RAISED) AN ACT CONCERNING EYEWITNESS IDENTIFICATION.
H.B. No. 5445 (RAISED) AN ACT CONCERNING THE DEATH PENALTY.
The bills seem to fall under the umbrella of “fixing the death penalty” and in some sense they may do so. But the real action in these bills is the adoption of best practices when it comes to interrogations and identifications. The death penalty bill also has some very interesting proposals. But let’s start at the very beginning. The interrogations bill is a hoot to read:
First, it applies only to those accused of a capital felony or Class A or Class B felonies. Second, any statement made by such person is presumed inadmissible unless 1) recorded and 2) the recording is not substantially altered. The bill then lists 9 exceptions pursuant to which a non-recorded statement is made admissible, but squarely places the burden on the state to prove by a preponderance that the exception is met. But there’s this odd subsection, which in my opinion, seeks to invalidate the entire bill:
(h) The presumption of inadmissibility of a statement made by a person at a custodial interrogation at a place of detention may be overcome by a preponderance of the evidence that the statement was voluntarily given and is reliable, based on the totality of the circumstances.
Since there is no further clarifying information, one must assume that this reverts back to the current standard for admissibility of statements: that they are reliable given the totality of circumstances. What, then, is the purpose of the bill requiring videotaping of interrogations? Am I reading this wrong?
The eyewitness identification bill is the standard bill that has been introduced for the last few years, so there’s nothing really to remark on. It is the death penalty bill that is the piece de resistance in this trifecta.
The bill starts tepidly enough and one might even confuse it for a bill proposed by a Republican to further limit the rights of criminal defendants in death penalty cases (oh wait, that’s exactly what it was…). But then it just takes off into neverneverland in a delightful way.
The bill first mandates that all relevant agencies must maintain exact records of the expenses incurred in pursuing and defending the death penalty. Some of you might recall how last year the public defender’s office was able to provide a dollar amount for the money spent, but the State “didn’t keep such records”.
But wait, it gets better. And how:
MLK Day
Jan 19th
MLK Day doesn’t just mean another day off (although that is nice too). If you do nothing else, make sure you read Scott’s post on the fight that remains to be fought.
You’ll find a video of Dr. King’s speeches elsewhere in the blogosphere, so I’m gonna give you a video instead. Taken from last year’s BR:
[youtube]http://www.youtube.com/watch?v=D7COntXhPcI[/youtube]
Maryland commission recommends abolition of death penalty
Dec 12th
I seem to have a knack for these things. I post about something and the next day there’s some news on that subject (or it could just be coincidence – take your pick). After yesterday’s post on the death penalty, I was but a little surprised to see two interesting news items today. The first is this very thorough and deeply interesting report [pdf] from the Maryland Commission on Capital Punishment. A legislatively created body, the Commission was charged in 2008, with evaluating the racial, socio-economic, geographic and other influences on the death penalty and to make a recommendation as to its continued viability.
In a 13-9 vote, the Commission today recommended abolition of the death penalty in Maryland. In preparing this report:
A few thoughts on the death penalty
Dec 12th
Several occurances in the last week have got me thinking about the death penalty. Miguel Roman should be the new posterchild for abolishing the death penalty. Yes, he wasn’t on death row, but here is a man who spent 20 years in prison for a crime he didn’t commit.
Consider the rush to execution that the pro-death penalty crowd loves to push. Imagine if that was actually the case and Roman was on death row. He’d be dead right now. If my calculations are correct, were Roman on death row, he’d be the longest serving member of that club. And people complain about the length of time the other death row members’ appeals and habeas corpus petitions have taken. Many would have killed them already.
The arbitrariness of the death penalty is also something to ponder.
Disparity challenge to death penalty survives motion to dismiss (updated)
Feb 28th
Update: Here‘s a copy
CT death row inmates’ racial and geographical disparity challenge to the death penalty survived a motion to dismiss. The challenge was made under provisions of both the Connecticut and Federal Constitutions. That might be what saved it (among other things).
In his decision, Judge Stanley T. Fuger Jr. said Connecticut’s constitution affords defendants greater legal rights than the U.S. Constitution, so, therefore, they have the right to present the kind of systemwide bias evidence that the 1987 ruling barred.
“Connecticut is not closing its eyes to this claim as most state courts have done,” said David Baldus, a professor at the University of Iowa College of Law who has studied bias in the death penalty in four states and in the city of Philadelphia. “So that’s why this is an unusual case. Unusual and important.”
This is a serious issue and perhaps it wouldn’t have been the wisest thing to dismiss the claims, as Judge Fuger recognizes:
“In the instant case, the petitioners allege that they are to be deprived of their lives in a proceeding that has been tainted by the imposition of improper racial determinations,” Fuger wrote in his decision. “The stakes are, therefore, extraordinarily high for these petitioners and merit the closest of scrutiny before throwing the complaint out of court without any opportunity to provide the validity of the claims.”
Racial disparity hearing concludes; some stats available
Dec 14th
In the midst of a massive snowstorm yesterday, the unusually situated DP hearing concluded yesterday at Northern CI – the State’s only maximum security prison where death row is housed. The arguments were pretty standard: the State moved to dismiss arguing that these habeas petitions have languished for a while, whining abuse of process. The defense countered with “these are death cases, studies take time”.
Much was made of the location of the hearing, but it used to be the norm back in the day. What interests me and I’m sure will interest some of my readers is this graphic in the Courant, which seems to have all the relevant data (if they would only please upload a real copy of the study and not the bizarre hacked 7-page version).
So, as you can see, black and white defendants are charged with a capital felony about the same, but when it comes to a white victim, there is a significant disparity (about 21%). When there is a white victim, as opposed to a black victim, the death penalty is sought 19% more.
SL & P links us to this NYT article which can’t even correctly report how many people CT has executed in the last 30 years. It says none, Michael Ross says hello.
The bottom line: Will Judge Fuger grant this Motion to Dismiss? I d0ubt it, but I wouldn’t be surprised.
Death penalty Constitutionality arguments end; ruling awaited
Jul 20th
The hearing into the Constitutionality of Connecticut’s death penalty wrapped up yesterday with oral arguments made by both sides.
Public Defender Ronald Gold argued that Campbell’s defense has proved that 12 of Connecticut’s 13 state’s attorneys do not follow a uniform standard or written guidelines when determining whether to pursue the death penalty.
Gold based his conclusion on the testimony of the state’s attorneys for the Waterbury and New Haven judicial districts. Given the same set of facts in double-murder cases, Gold argued, the two prosecutors reached different decisions on seeking the death penalty.
Waterbury State’s Attorney John A. Connelly testified that he has charged the accused with capital felony, felony murder and murder – the precursors to seeking the death penalty. Connelly said he had no discretion to do otherwise, according to Gold’s recollection of Connelly’s testimony.
But New Haven State’s Attorney Michael Dearington, Gold said, testified that when he has faced similar circumstances, he has charged a defendant with two murders rather than capital felony, felony murder and murder, Gold said.
The Court (Mullarkey, J.) is expected to rule on this and then sentence Jesse Campbell on August 17.
All previous coverage of this can be found here:
Death penalty hearing concludes
Jul 5th
Somehow I missed this, but the special hearing into the arbitrariness of the application of the death penalty in CT concluded last month, with the last of the State’s Attorneys testifying.
The hearing began in February and concluded Thursday with the calling of Fairfield State’s Attorney Jonathan Benedict.
Like the other 11 top prosecutors, Benedict testified that the only written guideline about the death penalty is the state statute that spells out the specific instances allowing for death penalty prosecution.
Benedict – whose subpoena had expired but who agreed to testify anyway without being compelled – also testified that he has discretion on when to seek the death penalty, as opposed to life in prison, in a capital case.
“The ultimate decision is mine, as a state’s attorney,” Benedict said.
Benedict’s testimony took less than 10 minutes.
My memory is a little different from that of the author of the news story. Benedict did testify in line with 10 of the other State’s Attorneys, but the Waterbury State’s Attorney John Connelly testified earlier that he did not have discretion to seek the death penalty. From my previous post:
Connelly said he does not have a choice not to pursue a capital case. “That’s a misuse of discretion. … If you have the evidence and you don’t seek it, I think a state’s attorney would be abusing that discretion.”
The question, of course, is the Constitutionality of this prosecutorial discretion in seeking the death penalty. 5 out of the 8 inmates currently on death row were prosecuted in Waterbury.
There will be a verdict in Jesse Campbell’s matter soon, though:
[Judge] Mullarkey asked [public defenders Ron] Gold and [David] Smith and prosecutor Vicki Melchiorre and her co-prosecutor, Dennis J. O’Connor, if they were prepared to conclude the proceeding with arguments on the motion, but the defense asked for more time to prepare briefs to support their arguments.
O’Connor said the state won’t be filing any additional briefs in response to the motion.
Mullarkey ordered briefs to be filed by July 12, and set July 19 for a final hearing on the motion, when he may rule on the defense request to impose a life sentence.
The defense team, which now also includes capital specialist Michael K. Courtney, has filed additional motions but no hearing date was set.
Get set for a verdict soon and perhaps an appeal regarding the Constitutionality of the application of Connecticut’s death penalty statute.
Previous coverage:
Two more prosecutors testify in dp discretion trial
Apr 15th
Somehow I missed the coverage of Thursday’s hearing in the death penalty discretion trial. Two more prosecutors testified.
Tolland County State’s Attorney Matthew Gedansky and Danbury State’s Attorney Stephen J. Sedensky were subpoenaed by lawyers for convicted murderer Jessie Campbell III.Gedansky said he would seek the death penalty if the facts of the case met the state statute. And, he testified, he also would consider input from the victim or victims’ families, the defense, and the strength and circumstances of aggravating and mitigating factors.
Sedensky offered similar testimony, telling Mullarkey that the state statutes are the guidelines.
By my count, that makes 11 out of the 12 prosecutors testifying that they have discretion in applying the death penalty. The only one who categorically stated that he had no discretion was Waterbury State’s Attorney John Connelly.
Previous posts (older to newer):
- State prosecutors have to testify at death penalty hearing.
- Death penalty constitutionality hearing under way.
- Death penalty constitutionality hearing continues.
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