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December 19 2009 | UNITED STATES

USA

Death sentences dropped, but executions rose in 2009

 
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The New York Times

Death Sentences Dropped, but Executions Rose in ’09

By JOHN SCHWARTZ

More death row convicts were executed in the United States this year than last, but juries continue to grow more wary of capital punishment, according to a new report.

Death sentences handed down by judges and juries in 2009 continued a trend of decline for seven years in a row, with 106 projected for the year. That level is down two-thirds from a peak of 328 in 1994, according to the report being released Friday by the Death Penalty Information Center, a research organization that opposes capital punishment.

“This entire decade has been marked by a declining use of the death penalty,” said Richard Dieter, the executive director of the group.

The sentencing drop was most striking in Texas, which averaged 34 death sentences a year in the 1990s and had 9 this year. Vic Wisner, a former assistant district attorney in Houston, said a “constant media drumbeat” about suspect convictions and exonerations “has really changed the attitude of jurors.”

Mr. Wisner said that while polls showed continued general support for capital punishment, “there is a real worry by jurors of, ‘I believe in it, but what if we later find out it was someone else and it’s too late to do anything about it?’ ”

In 2005, Texas juries were given the option of sentencing defendants to life without parole.

While death sentences are in decline, executions rose in the past year, according to the new report. Fifty-two prisoners have been put to death in 2009, compared with 42 in 2007 and 37 in 2008.

The report also noted that in 2009 New Mexico became the 15th state to repeal the death penalty, in part because of budget considerations and the high cost of death penalty appeals, which Gov. Bill Richardson called “a valid reason” for eliminating the ultimate sanction “in this era of austerity and tight budgets.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, which supports capital punishment, argued that the decline in death sentences also corresponded to a decline in the murder rate, and criticized efforts to use cost arguments against the death penalty. The government could “knock a large chunk off of the cost” of execution by streamlining the review process, he said.

Douglas A. Berman, an expert on sentencing law at Ohio State University, suggested that the rise in executions was due to last year’s relatively low number, as states grappled with the implications of a major 2008 Supreme Court decision on lethal injection.

In that case, Baze v. Rees, the court ended what amounted to a moratorium of several months, beginning in 2007, on lethal injection executions by proclaiming that the procedure used in Kentucky and other states with similar methods did not violate the constitutional prohibition against cruel and unusual punishment.

This “post-Baze echo” in the figures, Mr. Berman said, can be seen in the execution in Ohio this month of Kenneth Biros. It came after a legal challenge to Ohio’s protocol, a botched execution under the state’s three-drug method for another prisoner, and a shift to a one-drug execution method. While other court challenges to lethal injection are proceeding around the country, he said, Ohio’s action suggests that “states are moving forward.”

 

The Washington Post

Number of death sentences falls to a historic low

By Robert Barnes and Maria Glod

The number of executions in the United States increased this year, but the number of new death sentences handed down fell to the lowest total since capital punishment was reinstated in 1976, according to a new report from the Death Penalty Information Center.

The trend of decreased death sentences was especially noticeable in Virginia, which is second only to Texas in the number of inmates executed. Even as the commonwealth put to death its most infamous death row inmate, Beltway sniper John Allen Muhammad, its courts were sentencing fewer murderers to death.

Virginia averaged six death sentences a year during the 1990s, according to the report by the center, which favors the abolition of capital punishment. But only one person has been sentenced to death in the commonwealth this year, according to the report, and only six others have been sent to death row in the five preceding years.

Legal experts and prosecutors in Virginia cite several factors for the decline, including Supreme Court rulings that barred the execution of juvenile offenders and the mentally retarded. They also point to a drop in violent crime, growing jury concerns about executing an innocent man, and prosecutors' concerns about the expense of pursuing a death penalty at a time of budget cuts.

"General public support for severe punishment increases when people feel less secure, and it declines when people feel more secure," said Richard J. Bonnie, a University of Virginia professor of law and psychiatry. "I have felt that people's worries about their security have been focused on terrorism rather than domestic crime."

Prince William County Commonwealth's Attorney Paul B. Ebert, who is known for his support of capital punishment, said he is seeing fewer heinous crimes. His office prosecuted four men who are currently on death row as well as two executed this year.

"The overall crime rate is dropping, and to some degree I think that's due to availability of the death penalty," Ebert said. He said most of the murders he has prosecuted recently are drug crimes or domestic killings, cases he said are less likely to result in a death sentence.

Ebert said there is also a practical reason for the decline. During a recent meeting with other prosecutors from across the state, he said several mentioned that tight budgets have discouraged them from pursuing protracted capital cases.

"They feel like they just don't have the manpower in their office to go through the long, long hearings," Ebert said.

The process ends at the Supreme Court, where the justices continue to spend a large portion of their time on death penalty appeals.

"All of these cases are going to be litigated to the hilt, and they have such a long life span that they create so many opportunities" for courts to make an error, said Douglas A. Berman, a law professor and sentencing expert at Ohio State University. "And not just error, but the kind of error that the Supreme Court has to pay attention to."

Of the nine opinions the court has handed down in the term that began in October, five concerned death penalty appeals.

In four of the cases, the court dispensed with its usual call for detailed briefings and oral arguments and summarily reversed the decisions of the lower courts. In most cases, the justices favored the prosecution.

But in one significant case, the court opened the door for military veterans to blame their crimes on post-traumatic stress disorder. Without dissent, the justices in Porter v. McCollum said a lawyer was negligent for not presenting to the jury evidence of his client's bravery during the war, even though it was 30 years after returning from Korea that he killed his former girlfriend and her new boyfriend.

This year, the court issued a rare order that a federal judge must consider the innocence claims of condemned Georgia prisoner Troy Anthony Davis, who has mounted a global campaign to declare that he was wrongfully convicted of murder and barred by federal law from presenting the evidence that would prove it.

To Berman and Elisabeth Semel, director of the death penalty clinic at the University of California at Berkeley's law school, it makes sense that the court, divided on many aspects of capital punishment, takes the chance to present a united front when it sees examples of mistakes in death penalty cases that all justices agree on.

With Justices Antonin Scalia and Clarence Thomas strongly supportive of capital punishment and Justice John Paul Stevens now taking the opinion that the system doesn't work, "both sides are very vigilant about watching for cases on the extremes," Berman said.

That is particularly true when the cases come from the U.S. Court of Appeals for the 9th Circuit, which covers the West and is often criticized as overly deferential to defendants, or the 5th and 11th circuits, which cover most of the South and receive the opposite criticism.

It is in the South that the death penalty is most often prescribed and carried out. Nearly 90 percent of the 52 executions this year took place in the region, with nearly half of those in Texas. There were only 38 executions last year, but that was because there was a de facto moratorium on the procedure until the Supreme Court ruled against a challenge to lethal injection procedures.

According to the Death Penalty Information Center's research, 106 people were sentenced to death in the United States this year, continuing a declining trend. The number of death sentences peaked at 328 in 1994.

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