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July 11, 2016

Spotlighting that the death penalty, practically speaking, is now really dying

BuzzFeed News reporter Chris Geidner has this lengthy and timely article highlighting some notable capital realities circa 2016. The piece carries this full headline: "Practically Speaking, The Death Penalty Is Disappearing In The United States: Although nearly 3,000 people are on death row in America, there has not been an execution in the country for two months — and few executions are expected in the coming months."  Here is the start of a piece that merits a full read:

It has been two months since any state in the United States has carried out an execution. This marks the longest time between executions in the U.S. since the Supreme Court effectively halted them in the fall of 2007 through spring 2008 while considering a case about the constitutionality of lethal injection.

This time, the situation is very different. Although there are pending court cases about the death penalty’s application, the source of the two-month stoppage in executions isn’t the Supreme Court. It’s a variety of state-specific issues, ranging from the aftermath of Supreme Court rulings that come down earlier this year to drug availability to fallout from botched executions.

The pause on executions — since it is state-specific — won’t last forever.  The stoppage could end as soon as Thursday if an execution scheduled for Georgia goes ahead as planned.  It isn’t, however, only that there have been no executions in the past two months.  This year, there have been fewer executions overall — just 14 in the first half of the year — than in years past.  It’s extremely unlikely, moreover, that the number will be higher in the second half of the year.

There are, in fact, only three states — Georgia, Missouri, and Texas — that have executed anyone since January of this year. What’s more, these states appear to be the only ones that could hold an execution today — despite the nearly 3,000 people on death row across the country.  The only other state where executions still seem to be a possibility this year is Arkansas, and that is only so if the state obtains a new supply of execution drugs — which is by no means a sure thing.

Before the 2007-08 gap in executions, the next most recent time when there was such a gap was nearly 25 years ago, when there were no executions held between Nov. 12, 1991, and Jan. 22, 1992.  Even then, the stoppage is not entirely comparable to the current one because there often have been shorter periods with no executions surrounding the holiday season.  Gaps prior to then were more common, but they were due to the fact the states were still passing and implementing their execution process in the wake of the Supreme Court’s 1976 decision approving execution statutes after a nationwide ruling against the death penalty laws four years earlier.

In short, this is an unprecedented moment in the modern era of the death penalty.  Why, in the absence of any overarching federal prohibition on executions, is this so?

July 11, 2016 at 11:40 AM | Permalink


Yes it is. Courts don't like the DP. And in our court-run country, that's that.

Posted by: federalist | Jul 11, 2016 1:28:46 PM

Juries, judges, and the public are absorbing the reality of the DNA exonerations, the prosecutorial suppression of favorable evidence, the prosecutorial discretion in its charging policies. Whatever their views on the appropriateness of the death penalty in theory, they increasingly recognize its injustice in practice.

Posted by: Michael R. Levine | Jul 11, 2016 3:20:15 PM

The reason is an interlocking range of factors involving "juries, judges, the public" government officials of various types" think.

Posted by: Joe | Jul 11, 2016 8:10:28 PM

Please interpose the word "killing" for "execution" and you will be more civil.

Posted by: Liberty1st | Jul 11, 2016 9:33:56 PM

Mchael Levine:

DNA makes the death penalty, as all sentencing, more accurate.

We've had about 8300 death sentences in the modern era.

How many of those have been overturned by the suppression of evidence by prosecutors?

Prosecutorial discretion exists in all cases. By fact, the death penalty is the least arbitrary and capricious of all sanction.

Posted by: Dudley Sharp | Jul 12, 2016 8:49:50 AM

My reply to the author, Chris Geidner

Dear Chris:

Besides the drugs, the most obvious reason for execution stoppages is the judges, the case managers (1).

No one seems to notice.

Judges have killed executions in Ca, Pa, La., NC, SC , Ks, etc., and in most, if not all, the states that have, recently, repealed and or, otherwise, suspended executions.

It could hardly be more obvious. I suspect if judges controlled abortions, like they do executions, folks might notice it is the judges. Somehow, with the death penalty, the culprits are unknown. Bizarre.

5 Democratic Govs have, recently, stopped executions by executive orders, within states, whereby the judge had, really, already done so.

Absent the drug issue, is there any reason, other than the judges, for appeals, prior to execution, to take longer than 6-9 years, on average?


Modern era executions began in 1977.

From 1984-1988, when double digit executions began, it took 6.6 years, on average, of appeals, prior to execution (2), nationally.

6.6 years.

In 1996, the US Congress passed the Antiterrorism and Effective Death Penalty Act, part of which was supposed to quicken death penalty appeals.

Every year since then, the average time of appeals, until execution, has gotten longer.

From 2009-2013, it took 15 years, on average, prior to execution (1), nationally.

15 years.

It appears that the judges didn't like it.

1) Judges Responsible For Grossly Uneven Executions

Posted by: Dudley Sharp | Jul 12, 2016 8:55:39 AM

Mr. Sharp, you imply that suppression of evidence by the prosecution is a rare thing. I respectfully disagree, and I think the courts agree with me:

Wearry v. Cain, 136 S.Ct. 1002 (March 7, 2016) (defendant’s conviction and death penalty vacated because of prosecutions’ failure to disclose (1) inconsistent statements in police reports that undercut key witness’s credibility; (2) evidence that the witness had twice sought a deal in exchange for his testimony contrary to prosecutor’s assertion in closing argument; and (3) medical reports showing a participant in the crime was physically unable to have performed as key witness testified). Beyond doubt the newly revealed evidence suffices to undermine confidence in Wearry’s conviction”). Smith v. Cain, 132 S.Ct. 627 (2012) (where the eyewitness’s testimony was the only evidence linking Smith to the crime the State’s suppression of his inconsistent statements violated Brady so first degree murder conviction vacated.); Cone v. Bell, 129 S.Ct. 1769 (2009) (remand was required, on petition for habeas corpus from Tennessee murder conviction and death sentence for review of the effect of prosecution’s suppression of evidence regarding the seriousness of defendant's drug problem on his sentence); Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256 (2004) (death sentence vacated because federal habeas petitioner suffered prejudice from state's continued suppression of evidence of trial witness's informant status at state post-conviction proceeding, for purpose of determining whether he was entitled to present that evidence in support of Brady claim in federal court; witness's testimony was key to state's claim of future dangerousness, in penalty phase of capital murder trial, and was not otherwise effectively impeached);

Comstock v. Humphreys, 786 F.3d 701(9th Cir. 2015 ) (There was a reasonable probability that disclosure of alleged theft victim's recollection that he may have simply misplaced his ring while washing his motorcycle would have altered the result of the prosecution of defendant, who was convicted of possessing stolen property after he pawned the ring, and thus suppression of the recollection was prejudicial under Brady; prosecution relied on the alleged victim's testimony, which indicated that he would never have set his ring on the ground or somewhere else outside, to dispute defendant's defense that he merely found the ring, there was no direct evidence that the ring had been stolen, and whether defendant could still have been charged based on a misappropriation of lost property theory was irrelevant given that he was specifically charged with possession of stolen property obtained by means of larceny); U.S. v. Sedaghaty 728 F.3d 885 (9th Cir. 2013) (conviction for tax evasion reversed because government suppressed evidence it paid key government witnesses); “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” U.S. v. Olsen , 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, Chief Judge, dissenting from denial of pet. for rehearing en banc); Amado v. Gonzalez, 734 F.3d 936 (9th Cir. 2013) (murder conviction reversed because of prosecutor’s suppression of impeachment evidence—that key witness had prior robbery conviction for which on probation and that he had gang affiliation);
Aguilar v. Woodford, 725 F.3d 970 (9th Cir.2013) (murder conviction reversed because prosecutor suppressed evidence that the dog that supposedly alerted to the defendant’s scent in the car, had made errors in the past—and that the testimony had not been allowed in a previous case); Milke v. Ryan, 711 F.3d 998 (9th Cir. 2013) (conviction and death sentence reversed where prosecutor committed Brady violation in state murder prosecution by suppressing evidence that interrogating officer, who asserted that the defendant had confessed to her, had been investigated and suspended for taking sexual liberties with a female motorist, as well as several court orders finding that the officer had lied under oath in order to secure a conviction or further a prosecution; such evidence was relevant to issue of officer's willingness to lie under oath, as well as his misogynistic attitude toward female civilians and his willingness to abuse his authority to get what he wanted, prosecutors were well aware of officer's pattern of misconduct in other criminal cases); Ferguson v. Dormire, 413 S.W. 3d 40 (Mo. App. 2013) (murder and robbery convictions vacated because prosecution suppressed favorable evidence of an interview with person which impeached testimony of key identification witness rendering verdict “ not worthy of confidence.”);
In re Stenson, 174 Wash.2d 474, 276 P.3d 286 (Wash.,2012) (murder conviction and death sentence vacated because state suppressed FBI files relating to forensic evidence that was favorable to the defense); In re Bacigalupo, 55 Cal.4th 312 (2012) (death sentence vacated where prosecutor suppressed favorable evidence it received from informant that supported defendant’s claim that he committed murder because of threats against his family when “prosecution argued during penalty phase that there was “no evidence of duress whatsoever and that greed was defendant's sole motive”); Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012) (murder conviction and death sentence vacated where state suppressed police report establishing motive not only for government witness to implicate someone else, but to point the finger specifically at petitioner) ; U.S. v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) (vacating conviction for conspiracy to disclose confidential information relating to securities because “ government's failure to disclose portions of the transcripts [that contradicted the testimony of its key witnesses] violated Brady”); Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012) (death penalty vacated because the prosecutor’s deceit regarding the immunity given to a key witness violated Brady and Napue. ); State v. Hollin, 970 N.E.2d 147, 149 (Ind.,2012) (burglary conviction reversed because of state's Brady violation: failure to disclose pending criminal matters against alleged accomplice and fact that accomplice had changed his pretrial account of alleged burglary only after being charged with a new felony)

Posted by: Michael R. Levine | Jul 12, 2016 10:30:23 AM

I agree with Michael Levine. Juries, judges, and the public are increasingly absorbing the reality of the DNA exonerations and the widespread prosecutorial misconduct and gamesmanship. Although not a death penalty case, the Texas case of Michael Morton exemplifies the problem. He served 25 years for a murder he did not commit, while the prosecutor sat on exculpatory evidence. Even one such case undermines the arguments for imposition of the death penalty. As Judge Alex Kozinski noted, there is an "epidemic" of Brady violations. The prosecutors are now reaping what they sowed.

Posted by: anon5 | Jul 12, 2016 12:13:25 PM

Mr. Sharp, the following additional cases supplement my note above and are but a sample, showing that cases with Brady violations are legion:

Ex Parte Wyatt, 2012 WL 1647004, 1 (Tex.Crim.App., 2012) (rape conviction and 99-year sentence vacated because state suppressed evidence that would have supported the defense's theory of mis-identification); Guzman v. Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011) (state violated Giglio when its key witness and its lead investigator testified falsely about the existence of a deal between the state and Cronin); U.S. v. Freeman, 650 F.3d 673 (7th Cir. 2011) (mistrial proper where government knew, or should have known witness presented false testimony); Texas v. Morton (Williamson County, Texas No. 86-452-K26) (2011) (just google “Michael Morton”) (Michael Morton exonerated by DNA evidence after 25 years in prison in case in which prosecutors hid Brady evidence); LaCaze v. Leger, 645 F.3d 728 (5th Cir. 2011) (second degree murder conviction and 40-year sentence vacated because prosecution hid from defense and the court that it gave assurance it to its key witness that his son would not be prosecuted for driving him the murder scene); Sivak v. Hardison 658 F.3d 898 (9th Cir. 2011) (prosecutor’s failure to correct informant’s false testimony that he had no deal with prosecution requires vacating of death sentence); Breakiron v. Horn, 642 F.3d 126 (3d Cir. 2011) (prosecution failed to disclose that jailhouse informant “had sought a deal…in exchange for his testimony” and “had been convicted of and impeachable crimen falsi, in violation of its obligations under Brady); Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated under Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring, 637 F.3d 895 (9th Cir. 2011) (withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); Johnson v. Florida 44 So.3d 51 (2010) (“The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court…”); United States v. Price, 566 F.3d 900 (9th Cir. 2009) (Prosecutor's failure to disclose criminal history of its star witness in defendant's firearm possession trial, including three arrests for theft, a report of theft by deception, and three convictions for false-tag violations, was prejudicial violation of Brady and due process)

Posted by: Michael R. Levine | Jul 12, 2016 1:10:30 PM

Mr. Levine's list of cases is impressive and puts prosecutors in a damming light. He may well be right that because of prosecutorial misconduct juries, judges, and the public are turning against the death penalty.

Posted by: Dave from Texas | Jul 12, 2016 1:15:16 PM

Mr. Sharp, you write that "the most obvious reason for execution stoppages is the judges, the case managers (1)." You fail to recognize, however, that the reason the judges are stopping the executions may be due in large part to the fear that prosecutorial misconduct has led to the imposition of the death penalty on someone who is innocent or (because of hide-the-ball tactics) does not deserve it--as amply illustrated by the cases cited by Michael Levine.

Posted by: Emily | Jul 12, 2016 1:20:02 PM

Right, the death penalty is dying, and homicide is skyrocketing. It's 1965-77 all over again.

Posted by: William Jockusch | Jul 13, 2016 2:42:57 AM

Emily, Dave and Michael:

Pay attention.

I asked a simple question:

How many of the 8300 death sentences have been overturned based upon prosecutorial misconduct.

No one answered.

I never said that prosecutorial misconduct was not a bad thing nor that it was uncommon.

Michael, 1% of cases would be 83, which is far more than your sample, which does not appear to be "legion".

Emily, Ca judges are not taking 5 years to appoint appelllate counsel in Ca death penalty cases because of prosecutorial misconduct, nor allowing an additional 3 years , after that,for that counsel to produce their first brief.

Judges only allow volunteers to be executed in Pa, which has no connection to prosecutorial misconduct. It goes on like throughout throughout the judicial world with death penalty cases.

In Co it takes 5 years for judges to bring a death penalty case to trial and only 1 1/2 years for a life case.

I am unaware of any of those anti death penalty, judicial pattersn having any connection to prosecutorial misconduct.

Something you three did not consider:

"Are the opinions of judges, against the death penalty, far more likely to find for prosecutorial misconduct in death penaltry cases than with the similar violations in non death penalty cases?"

As 38% of death penalty cases are overturned and, I have been told, with no supportive evidence, that about 15% of life cases are overturned, it seems a bit obvious, which is not proof, but is more supportive of my judicial bias premise.

Posted by: Dudley Sharp | Jul 13, 2016 8:57:25 AM

Mr. Sharp writes, "I never said that prosecutorial misconduct was not a bad thing nor that it was uncommon." But that is the point. Juries and judges and the public increasingly know that prosecutorial misconduct is not "uncommon." They don't want to send someone to death on the chance, remote as it may be, that the prosecutor pulled a fast one either in the guilt phase or the penalty phase. I'm very conservative; but were I a judge or a juror, in light of cases like Michael Morton's in Texas, I would have the same nagging suspicion and hesitate to impose death.

Posted by: Dave from Ohio | Jul 13, 2016 12:15:29 PM


What is uncommon? 1%, 2%? Tell me.

That is why I askedthe question, which you have not answered.

How many of the 8300 death sentences have been overtuned because of prosecutorial misconduct.

It appears that judicial misconduct is killing the death penalty, not prosecutorial misconduct.

Morton's was a life case, not a death penalty case.

But, if you would like to present your cases as to why life without parole should be ended because of prosecutorial misconduct, present your proof.

Again, how many cases are overturned because of prosecutorial misconduct?

Posted by: Dudley Sharp | Jul 14, 2016 8:43:43 AM

Mr. Sharp, you write: "Again, how many cases are overturned because of prosecutorial misconduct?" Mr. Levine's list of cases shows plenty of cases where such misconduct has been discovered just over the past few years. And Judge Kozinski (former Chief Judge of the Ninth Circuit and hardly a liberalhas noted that prosecutorial misconduct is "epidemic."

You assume that in the 8300 cases no misconduct has occurred. Why do you make that assumption? Prosecutorial misconduct is hard to detect even in the best of circumstances. That's why it is so perfidious. True Michael Morton was a not a capital case, but so what? Cheating is cheating. Besides, where juries are given the option of life without parole, they are increasingly choosing that alternative. This is strong support for my argument.

Posted by: Dave from Ohio | Jul 14, 2016 12:07:47 PM


Not only have I never made such an assumption - "no misconducr has occurred" - I stated that I knew that there was prosecutorial misconduct.

my quote:

"I never said that prosecutorial misconduct was not a bad thing nor that it was uncommon."

It is you that presumes, in total contradiction to what was presented. Not very responsible.

I have, obviously and simply, asked a very plain question:

How many of the 8300 death penalty cases were overturned because of prosecutorial misconduct?

Kozonski's "epidemic" quote is interesting, as he didn't answer my question either.

Is an epidemic 1% of cases, 2%???

Does anyone know? That was my very obvious point.

Posted by: Dudley Sharp | Jul 14, 2016 12:55:35 PM

Mr. Sharp: you persist in asking, "How many of the 8300 death penalty cases were overturned because of prosecutorial misconduct?" I ask you in turn, in how many of those case did prosecutorial misconduct occur and go undetected?

Posted by: Dave from Ohio | Jul 14, 2016 2:03:16 PM

Mr. Sharp, consider the following N.Y. Times editorial on prosecutorial misconduct:

SundayReview | Editorial
Rampant Prosecutorial Misconduct


In the justice system, prosecutors have the power to decide what criminal charges to bring, and since 97 percent of cases are resolved without a trial, those decisions are almost always the most important factor in the outcome. That is why it is so important for prosecutors to play fair, not just to win. This obligation is embodied in the Supreme Court’s 1963 holding in Brady v. Maryland, which required prosecutors to provide the defense with any exculpatory evidence that could materially affect a verdict or sentence.

Yet far too often, state and federal prosecutors fail to fulfill that constitutional duty, and far too rarely do courts hold them accountable. Last month, Alex Kozinski, the chief judge of the United States Court of Appeals for the Ninth Circuit, issued the most stinging indictment of this systemic failure in recent memory. “There is an epidemic of Brady violations abroad in the land,” Judge Kozinski wrote in dissent from a ruling against a man who argued that prosecutors had withheld crucial evidence in his case. “Only judges can put a stop to it.”

The defendant, Kenneth Olsen, was convicted of producing ricin, a toxic poison, for use as a weapon. Federal prosecutors knew — but did not tell his lawyers or the court — that an investigation of the government’s forensic scientist, whose lab tests were critical to the case, had revealed multiple instances of sloppy work that had led to wrongful convictions in earlier cases. A state court found the scientist was “incompetent and committed gross misconduct.”

Yet the majority of the federal appeals court panel ruled that the overall evidence of Mr. Olsen’s guilt — including websites he visited and books he bought — was so overwhelming that the failure to disclose the scientist’s firing would not have changed the outcome.

This is the all-too-common response by courts confronted with Brady violations. Judge Kozinski was right to castigate the majority for letting the prosecution refuse to turn over evidence “so long as it’s possible the defendant would’ve been convicted anyway,” as the judge wrote. This creates a “serious moral hazard,” he added, particularly since prosecutors are virtually never punished for misconduct. According to the Center for Prosecutor Integrity, multiple studies over the past 50 years show that courts punished prosecutorial misconduct in less than 2 percent of cases where it occurred. And that rarely amounted to more than a slap on the wrist, such as making the prosecutor pay for the cost of the disciplinary hearing.

Brady violations are, by their nature, hard to detect, but Judge Kozinski had no trouble coming up with more than two dozen examples from federal and state courts just in the last few years, and those are surely the tip of the iceberg. According to the National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct.

The Brady problem is in many ways structural. Prosecutors have the task of deciding when a piece of evidence would be helpful to the defense. But since it is their job to believe in the defendant’s guilt, they have little incentive to turn over, say, a single piece of exculpatory evidence when they are sitting on what they see as a mountain of evidence proving guilt. The lack of professional consequences for failing to disclose exculpatory evidence only makes the breach of duty more likely. As Judge Kozinski wrote, “Some prosecutors don’t care about Brady because courts don’t make them care.”

Courts should heed Judge Kozinski’s call, but it will take more than judges to fix the problem. Prosecutors’ offices should adopt a standard “open file” policy, which would involve turning over all exculpatory evidence as a rule, thus reducing the potential for error.

Fighting prosecutorial misconduct is not only about protecting the innocent. It is, as Judge Kozinski wrote, about preserving “the public’s trust in our justice system,” and the foundation of the rule of law.

In light of the above editorial, and the possibility that the prosecutor's are hiding something important, I would be very hesitant to impose the death penalty as opposed to life without parole.

Posted by: Emily | Jul 14, 2016 2:10:14 PM


Do a search, as I did.

Allegations of prsecutioral misconduct are very common, yet almost never confirmed by court action.

It is alleged and reviewed constantly.

The question you didn't ask:

How often are claims of prosecutorial misconduct not confirmed by the courts?

My search found that it is, overwhelmingly, a false charge, not supported by the courts.

Posted by: Dudley Sharp | Jul 14, 2016 9:57:36 PM

0.4%- 0.6% death row cases overturned because of prosecutorial misconduct?


I've read the article before. You may not have read my question:

How many of the 8300 death penalty cases were overturned because of prosecutorial misconduct?

Have you noticed how everyone avoids the question and the answer, every time?


If we, incorrectly, use the "National Registry of Exonerations, 43 percent of wrongful convictions are the result of official misconduct", from that article, and, wrongly apply that to only death penalty exonerations, that would be NRE's 115 "exonerated" death row inmates (1) times 43% divided by 8300 or about 0.6% of cases.

0.6%, or 49 cases, seems to be neither legion nor epidemic.

The 0.6% is too high, based upon NRE's standards.

Death penalty cases "overturned because of prosecutorial misconduct" will be an even lower percentage, because the NRE's percentage is based upon their own definition of official misconduct" which includes prosecutors, police and other government officials and NRE's own definition of "wrongful convictions" does not equate to "cases overturned based upon prosecutorial misconduct".

So, maybe 0.4% of death row cases are overturned because of prosecutorial misconduct.

0.4% or 33 cases out of 8300.

Legion? Epidemic?


No prosecutorial misconduct is acceptable.

1) I used "death" as a filter to find those 115 death row cases, here:

Posted by: Dudley Sharp | Jul 15, 2016 4:53:00 AM

That last sentence should have been: "No misconduct is acceptable"

Posted by: Dudley Sharp | Jul 15, 2016 4:57:43 AM

I addressed two replies to "ohio" which should have been Dave.

Posted by: Dudley Sharp | Jul 15, 2016 5:04:52 AM

Mr. Sharp, you write, "0.4% or 33 cases out of 8300." Underlying your argument is the assumption that because the courts did not discover prosecutorial miscondct in the other 96.4percnet of the cases, none occurred. But what gives you confidence in this assumption? Prosecutorial misconduct is notoriously difficult to discover. For example, in the case of Michael Morton, the miscondct was only discovered becaue of dogged and dedicated laywers who persevered for 25 years. By analogy, ten years ago, astronomers believed that very few stars had planets. Then a few planets were discovered. Now, by extrapolation, astronomers believe that millions upon millions, etc. of stars have plantets; infact, they now believe that most stars do have planets. The same reasoning applies to prosecutorial miscondct. From the fact that courts have uncovered prosecutorial miscoduct in .6 percent of the case, we can deduce, by extrapolation, that such misconduct has occurred in the vast majority of criminal cases, even if not yet actually discovered. In short, I regret that I must give your argument a C- grade. However, I will allow you to redo your paper and resubmit it by the end of the week.

Posted by: anon5 | Jul 15, 2016 10:55:40 AM


As already discussed, allegations of prosecutorial misconduct are extremely common, yet are affirmed by the courts very rarely.

In other words, the courts are looking at vast numbers of allegations, already, with most of those allegations being false, as decided by the courts.

It does not appears that inmates' counsel are the least bit timid about making those claims, false or not.

The rational conclusion being that it gives all of us great confidence that the courts are considering vast numbers of cases for prosecutorial misconduct, the great majority of which are found not to have prosecutorial misconduct and that defense counsel will make vast numbers of false claims of prosecutorial misconduct in every case possible, whether true or false.

In other words, your concern is the direct opposite of the facts.

Posted by: Dudley Sharp | Jul 15, 2016 1:20:09 PM

Mr.Dudley, as set out in the following report from the Death Penalty Information Center, the death penalty is in steep decline in part because juries are imposing it in fewer cases:

Death Penalty Use in 2015 Declines Sharply

Fewest Executions, Fewest Death Sentences, and Fewest States Employing the Death Penalty in Decades

(Washington, D.C.) The use of the death penalty in the U.S. declined by virtually every measure in 2015. The 28 executions this year marked the lowest number since 1991, according to a report released today by the Death Penalty Information Center (DPIC). As of December 15, fourteen states and the federal government have imposed 49 new death sentences this year, a 33% decline over last year’s total and the lowest number since the early 1970s when the death penalty was halted by the U.S. Supreme Court.

Only six states conducted executions this year, the fewest number of states in 27 years. Eighty-six percent of executions this year were concentrated in just three states: Texas (13), Missouri (6), and Georgia (5). Executions in 2015 declined 20 percent from 2014, when there were 35. This year was the first time in 24 years that the number of executions was below 30.

Death sentences have been steadily declining in the U.S. over the past 15 years. The country has now imposed fewer death sentences in the past ten years than in the decade just before the U.S. Supreme Court declared the death penalty unconstitutional in 1972.

“The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC’s Executive Director and the author of the report. DPIC tracks data on the death penalty, but does not take a position on capital punishment.

Relatively few jurisdictions handed down death sentences in 2015. A single county — Riverside, California — imposed 16% of all death sentences in the U.S., and accounted for more death verdicts than any state, except for Florida. More than a quarter of the death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice barred in all but three states. Texas, by contrast, imposed only two new death sentences in 2015.1 Nearly two-thirds of all new death sentences this year came from the same two percent of U.S. counties that are responsible for more than half of all death-sentenced inmates nationwide.

Read DPIC’s “The Death Penalty in 2015: Year End Report”.

Even as the use of the death penalty declined, its most dangerous flaw remained apparent. Six death row prisoners were exonerated of all charges this year, one each in Alabama, Arizona, Florida, Georgia, Mississippi, and Texas. Since 1973, a total of 156 inmates have been exonerated and freed from death row.

The number of people on death row dropped below 3,000 for the first time since 1995, according to the latest survey by the NAACP Legal Defense Fund.

At least 70 death row prisoners with execution dates in 2015 received stays, reprieves, or commutations, 2.5 times the number who were executed.

In addition, there is an ongoing risk that judicial review is inadequate to protect capital defendants with serious intellectual disabilities or crippling mental illness. DPIC’s report states: “The death penalty is supposed to be reserved for the worst of the worst crimes and the worst of the worst offenders. However, … [t]wo-thirds of the 28 people executed in 2015 exhibited symptoms of severe mental illness, intellectual disability, the debilitating effects of extreme trauma and abuse, or some combination of the three.”

Posted by: anon3 | Jul 15, 2016 8:36:58 PM


Any additional "elusiveness" of the death penalty is based upon the reductions in murders and, even more so, on a even greater reduction in capital murders, the obvious first option to check and something USAT never even considered -- the most obvious was the most elusive, for USAT- fewer capital murders equals fewer death sentences.

The US has had double digit executions, annually, from 1984 - 2014 (5) . Murders are, now, at a 46 year low (6). Murder rates are, now, at a 57 year low (6). It's not surprising that death sentences are at a 41 year low (5) - "more elusive", of course.

In the US, from 1991-2013, there was 43% drop in murders (a 54% drop in murder rates), a 25% drop in rapes (a 40% drop in rate) and a 50% drop in robberies (a 60% drop in rate) (6). As rape/murders, robbery/murders are the most common death penalty eligible crimes, those, likely, dropped from 60-80%, nationally, accounting for the vast majority of the drop in death sentences.

Based upon new case law and state death penalty repeals, such would, likely, account for about a 12% reduction in death sentences, bringing the 315 down to 277 (8).

So what is the explanation for the 74% drop to 73 from 277?

With about a 60-80% drop in capital murders (murders/rapes/robberies 1994-2013) (6) plus additional reductions for other reasons, such as LWOP, up front costs, as others, all contributing to prosecutorial frustration/discretion, as a rule all caused or affected by . . . .


Posted by: Dudley Sharp | Jul 16, 2016 5:38:57 AM



Judges are the case managers, at pre trial, trial and on appeals - they are in control of both time and costs, some with responsibility others with complete abandon.

Because of judicial roadblocks and delays - judges decide on timing and costs - prosecutors may just get fed up, choosing to avoid the death penalty, seek a LWOP trial instead, or, better, a plea to LWOP, avoiding the huge costs and countless delays imposed by many judges in death penalty cases, at pretrial, in trial and within appeals.

USAT missed that such was Josh Marquis' point.

In states like California, Kansas and Pennsylvania, judges are, very openly, killing the death penalty, as in New Jersey and Connecticut.

For example, in the modern era, post Gregg v Georgia (1976):

Virginia executed her first 111 murderers within 7.1 years, on average (9), has executed 72% of those sent to death row and has an 11% overturning rate in appeals (7). Virginia's latest execution, 10/1/2015, occurred after 5 years of appeals.

Pennsylvania has executed only 3 of the 417 sentenced to death, or 0.7%, and has a 45% overturning rate in appeals (7), likely to become 90%, if the judges will allow appeals to end. Why?

Pa judges will only allow executions when the murderer "volunteers" and waives appeals, whereas Virginia judges are responsible and respect the law.

Pa judges are, quite obviously, obstructionists to the law, a common and obvious problem in many jurisdictions.

". . . in California, appeals attorneys are not appointed (by judges) for three to five years. (Those attorneys, then, allowed by judges) to take four years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed (by the judges), on average, until eight to 10 years after the death sentence." Three Major Steps to Reduce Death Penalty Delay in California, Crime and Consequences blog, Bill Otis, August 8, 2015, http://www.crimeandconsequences.com/crimblog/death-penalty/

Judges have, intentionally, destroyed the California system.

For many, the judicial problems are just too much.


Posted by: Dudley Sharp | Jul 16, 2016 5:40:24 AM



Fewer death sentences will equal fewer execution and . . .

Since 2006, executions have been affected by litigation related to the lethal injection method, as well as drug shortages, within that method, resulting in a "slowdown" of executions averaging 43 per year (2007-2013) (5).

It is very rare to have executions over 60 per year, which has only occurred 7 times (1997-2003), or 18% of execution years (5).

Excluding those exceptions, the average is 27 executions per year (1977-1996, 2004-2013) and, if starting with double digit executions in 1984, the average is 36 executions per year (5).

The "slowdown" period has averaged 43 executions/year and could get down to a 27-36 average, within the next 5 years, if the actual execution problems are not corrected.


Executions are, undoubtedly, much fewer than they would otherwise be, because the time between sentencing and executions has risen by 128%, from 6.6 years, the average time from 1984-1988, when double digit executions began, to 15 years, the average time from 2009-2013 (11).

This is the fault of the judges, again, and is an intended killer of the death penalty, as virtually every hearing on the death penalty attests and might be the greatest reducer of executions, but was, completely, missed by USAT.

In 1996, the US Congress passed the Anti terrorism and Effective Death Penalty Act (AEDPA), part of which was supposed to quicken death penalty appeals.

Every year since then, the average time of appeals, until execution, has been greater than in 1996 (10.4 years), with the longest being 16.5 years, (2011) (11).

Apparently, judges didn't like the AEDPA . The judicial move against the death penalty became even more obvious.


Posted by: Dudley Sharp | Jul 16, 2016 5:41:33 AM



Until jurisdictions change the method of execution, they will continue to have problems, brought on by anti death groups (17) pressuring those manufacturers to deny the best drugs for pain free executions to the US (17), thereby applying more risk to the inmates and delaying, but not stopping, any executions (17).

As Charles Lane of the Washington Post observed: "What we have here is not a serious, effective protest, but an exercise in feel-good politics that puts innocent people at risk." (18).


It appears the best replacement is nitrogen gas - it cannot be withheld, is easily accessible, peaceful and euphoric, very easy to administer - just an oxygen mask and a tank of gas, just turn the knob (17).


Posted by: Dudley Sharp | Jul 16, 2016 5:43:02 AM


Relying on any study by DPIC is a fool's choice.

It appears that you didn't notice . . .

DPIC did not show that juries were less likely to give death in a capital trial, meaning that DPIC didn't show a lower percentage of giving death per death penalty trial.

I used to be anti death penalty and fact checked the claims of both sides, over a two year period. DPIC is just plain terrible and deceptive, now, as then.

Posted by: Dudley Sharp | Jul 16, 2016 11:20:23 AM

Mr. Sharp, I commend you for your zeal, but you're on the wrong side of history this time. Whatever you think of the DPIC, facts are facts: the number of death sentences actually imposed has been steadily shrinking. See following article:

The Washington Post

The U.S. saw fewer executions and death sentences in 2015 than it has in decades
By Mark Berman December 16, 2015

The old execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. (AP)

This year, the death penalty in the United States has been debated by the Supreme Court and criticized by President Obama. It has been legislatively abolished in Nebraska, where lawmakers voted to make that state the latest to abandon capital punishment, and halted in Pennsylvania, which became the newest state to declare a moratorium on executions.

Here is one thing that we didn’t see very frequently, though: Capital punishment, the actual practice of sentencing inmates to death and then carrying those sentences out.

The death penalty was rarely used this year, as capital punishment continued its years-long decline in the United States in 2015. Fewer death sentences were handed down than have been in a single year for more than four decades, while fewer inmates were executed than have been in nearly a quarter of a century.

“We’re looking at a sea change,” Robert Dunham, executive director of the Death Penalty information Center, said in an interview. “This is not the start of something, we’re in the middle of it right now. And the direction it’s moving is towards severely limiting or abolishing the death penalty.”

This is not a new trend, as we noted last year. But it is striking just how far the United States has changed from just two decades ago, when a single year could see hundreds of death sentences handed down and dozens of inmates put to death — a period that coincided with the apex of the death penalty’s modern popularity.

The mid-1990s were an era of heightened fear and crime, something encapsulated by then-President Clinton signing a crime bill in 1994 — after the violent crime rate already began to plummet, as it turned out — that ramped up penalties in the wake of a crack cocaine epidemic. It was also the same period that wound up being the death penalty’s recent apex, both in terms of public opinion and death sentences imposed and carried out.

This year, states and the federal government imposed 49 death sentences, according to a new report from the Death Penalty Information Center examining the year for capital punishment. The number is dramatically down from the more than 300 death sentences the Death Penalty Information Center says were issued each year between 1994 and 1996.
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States carried out 28 executions this year, the sixth consecutive year that the number of executions declined or remained the same. The 28 executions is half of what it was two decades earlier.

“Most years do not show the same dramatic declines in every measure that we have seen in 2015, but the overall pattern and long-term trend have been away from the death penalty,” Dunham wrote in the new report.

Capital punishment remained the practice of a fading number of states, as just a handful carried out executions. Other states hoped to do so, of course, but were unable to, owing to court challenges, the ongoing shortage of lethal injection drugs or governors stepping in.

In Oklahoma, authorities carried out one execution this year before the U.S. Supreme Court agreed to hear a challenge to that state’s lethal injection procedure due to a drug that had been used in three executions that went awry last year. As a result, Oklahoma delayed other executions, and Florida postponed an execution because it uses the same lethal injection drugs as Oklahoma. This meant that two of the most active states when it comes to capital punishment spent part of this year with their death penalties essentially on hold.

The justices upheld Oklahoma’s protocol, but the state called off its next scheduled execution at the last minute when officials found they had gotten the wrong drug, and they later postponed all executions after learning they had used the incorrect lethal injection drug earlier this year.

Ohio, another leading death-penalty state, pushed all executions scheduled for this year to allow it to find lethal injection drugs — and in October, state officials announced that it would delay all executions scheduled for next year until 2017, 2018 and 2019. Other states have adopted or expanded methods meant to deal with the shortage of lethal injection drugs, something we saw when Utah widened its ability to use firing squads and Oklahoma made nitrogen gas a new backup method there.

In the end, all of the year’s executions were carried out by six states, and nearly half of them in a single state — Texas, which remains the country’s leading death-penalty state.

A similar trend played out with death sentences, as three states — California, Florida and Alabama — saw more than half of the country’s total death sentences this year, according to the report from the Death Penalty Information Center, a Washington-based nonprofit group. (The report was released early Wednesday morning, and The Post reviewed a draft copy before it was publicly released.) Meanwhile, the death row population fell below 3,000 people for the first time since early 1995, the report found.

The modern peak of executions actually came a few years after the height of concern over crime and the surge in death sentences in the mid-1990s. Between 1997 and 2005, the country executed at least 59 people per year; outside of that window, there has been no year in the modern era that has reached that figure.

As the number of death sentences has plummeted, and as the number of executions dwindled, public support for the death penalty has also declined, though polls show a majority of Americans remain in favor of the practice.

In 1996, nearly four out of five Americans (78 percent) said they supported the death penalty, the Pew Research Center reported, but that number fell to 56 percent earlier this year. A Gallup poll released last month said that 61 percent of Americans supported the death penalty, down from 80 percent in 1994.

[Americans also largely agree that an innocent person can be put to death under the current system]

Another poll, though, found that when given the choice between life in prison without parole or a death sentence — rather than simply being asked if they supported or opposed the death penalty — a majority of Americans said they favored life imprisonment (52 percent) rather than death sentences (47 percent), the Public Religion Research Institute reported last month.

In Nebraska, lawmakers voted to scrap the death penalty in favor of life imprisonment earlier this year, overriding a veto from the governor and making that state the 19th to abolish capital punishment. However, that law is on hold after people submitted enough signatures to halt the repeal from going into effect until voters can weigh in on the issue next November. (The governor has said he will not try to execute any inmates currently on death row before that vote occurs.)

If the law is ultimately upheld, Nebraska’s death-row inmates will have their current sentences converted to life imprisonment. In some other states, though, the death penalty has been abandoned but sentences left intact for people on death row, creating an odd sense of ambiguity.

Two of these states — Maryland and Connecticut — resolved that this year: Before he left office as Maryland’s governor, Martin O’Malley officially commuted the sentences of the state’s remaining death-row inmates, while the Connecticut Supreme Court said it would be unconstitutional to execute the remaining inmates on death row there.

Posted by: anon2 | Jul 16, 2016 11:45:04 AM


Obviously, you neither cared not commented that the Washington Post completely ignored the confirmable, factual reasons for reductions in death sentneces - less capital murders.

The reason for reduced executions is the drug problem and judges, as fully detailed and not rebutted, btw.

Possibly, I might be on the wrong side of history, but, at least I am honest about the facts, which still matters, to some.

Posted by: Dudley Sharp | Jul 17, 2016 4:05:05 AM


Zeal means nothing, if it is no accompanied by fact checking, which I do and it appears that you do not.

You and Emily post other folks comments, as if they are meaningful, when you have no idea if they are credible, as you both do not fact check.

Posted by: Dudley Sharp | Jul 17, 2016 12:10:09 PM

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