racial disparity
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.
Technorati Tags: connecticut, death penalty
Death penalty constitutionality hearings continue
Mar 26th
Missed in my migration this weekend was Friday’s testimony in the death penalty constitutionality hearing. Waterbury State’s Attorney Connelly testified about his hands-on approach in deciding whether to pursue the death penalty. Waterbury has prosecuted five of the seven current death row inmates.
While Connelly described, step-by-step, his decision-making process, other prosecutors said they simply followed the guidelines established in the Connecticut General Statutes.The question of a prosecutor’s discretion appeared pivotal.
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.”
In describing his approach, Connelly said, “If I only felt I could find probable cause I would not charge. I’d have to be convinced of a conviction. If I felt I could sustain a conviction for a capital felony I would charge.”
The hearings resume on April 12.
Previous coverage:
- Death penalty constitutionality hearing under way.
- State prosecutors have to testify at death penalty hearing.
Technorati Tags: connecticut, death penalty
Death Penalty Constitutionality hearing under way
Feb 24th
A hearing on the Constitutionality of the state’s death penalty is underway as five top prosecutors testified last week. Attorneys for accused Jesse Campbell III, who faces the death penalty, are claiming that the death penalty is unconstitutional because it is applied in an “arbitrary and capricious” manner throughout the state.
Prosecutors testified that they follow the law and the prosecutor’s code of ethics when deciding whether to pursue the death penalty. However, they also testified that there was no written standard or guideline regarding the matter.
Kevin Kane, the state’s top law enforcement officer, testified first, followed by state’s attorneys from the Windham, Middlesex, New Britain and Ansonia/Milford judicial districts.Kane gave the most detailed answers. He said in his current position, as supervisor of all state’s attorneys in Connecticut, and during his more than a decade as New London state’s attorney, he used an “operating assumption” that if assistants in his office planned to charge a defendant with capital felony, they would discuss the matter with him first.
“Because of the nature of the case, I expect the assistants to talk to me. I expect assistants to have common sense in cases that would have a significant relevance or impact,” Kane said.
Several other prosecutors are expected to testify when the hearing resumes on March 23. Stay tuned.
Previous coverage of this hearing:
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