[Deathpenalty] death penalty news----USA

[Rick Halperin]

USA:

USA:

Prosecutors Are Banding Together to Prevent Criminal-Justice Reform----A new 
investigation shows that DA associations are thwarting changes to the death 
penalty, sentencing, and more.



On March 16, Aramis Ayala, the first black state attorney for the Ninth 
Judicial Circuit in Florida, which includes Orlando and Orange counties, took 
the podium in front of the Orange County Courthouse and announced that her 
office would no longer seek the death penalty. "I have determined that doing so 
is not in the best interest of this community or the best interest of justice," 
Ayala said, explaining that she'd based her decision on a host of factors, 
including the high costs of death-penalty prosecutions, the lack of a deterrent 
effect, and harm to the victims' families. "I do understand this is a 
controversial issue," Ayala concluded. "But what is not controversial is the 
evidence that led me to my decision."

The impetus for Ayala's announcement was the trial of Markeith Loyd, who was 
accused of shooting his pregnant ex-girlfriend in her home as well as a police 
officer in a Wal-Mart parking lot. Witnesses saw Loyd firing multiple rounds 
into the officer's prone body. The killing inspired particular ire among 
law-enforcement leaders, who demanded the death penalty alongside the Florida 
attorney general and some lawmakers.

Opposition to Ayala's death-penalty ban came swiftly. Florida Governor Rick 
Scott removed her from the Loyd case and then went a step further, removing 
Ayala from all of the capital cases in her district - more than 2 dozen - and 
reassigning them to Brad King, the state attorney for the neighboring Fifth 
Judicial Circuit. King, a former sheriff's deputy, is a steadfast supporter of 
capital punishment. Ayala's choice also put Florida's other elected state 
attorneys in an uncomfortable spotlight: Many were quick to condemn her, 
supported by law enforcement and victims'-rights advocates. Someone sent her a 
noose in the mail along with racist messages, and a court employee wrote on 
Facebook that Ayala should be "tarred and feathered if not hung from a tree." 
Later, she was pulled over by an Orlando cop and subjected to intrusive and 
skeptical questioning. (A video of the encounter later went viral.) One former 
state attorney predicted that Ayala's decision would lead to a huge spike in 
murders, saying on the local news that "I, frankly, was flabbergasted.... When 
you don't have a death penalty, bad things happen."

Among those opposing Ayala was the Florida Prosecuting Attorneys Association, a 
professional organization that includes the state attorneys from every judicial 
circuit in the state. In addition to providing resources and training for 
prosecutors, the FPAA provides testimony before the State Legislature, lobbies 
for or against pending bills, and writes amicus briefs. After Governor Scott 
announced that he would remove Ayala from all of her capital cases, she sued to 
stop him, arguing that he was constitutionally prohibited from doing so. 
Officially, the FPAA has no position on capital punishment, but in May the 
organization filed an amicus brief siding with Scott and arguing against Ayala, 
a dues-paying member of the association. The FPAA brief said that Ayala had 
violated the separation-of-powers doctrine by effectively setting her own 
policy. (At the end of August, the Florida Supreme Court ruled against Ayala in 
a split decision.)

Before the amicus brief was filed, I spoke with former FPAA president Glenn 
Hess, the state attorney for the 14th Judicial Circuit, who explained the 
organization's purpose to me. "At the FPAA, our job as prosecutors is not to 
make law," Hess said. "It is to take the law the Legislature makes and enforce 
[it] in the state." An investigation by The Nation, however, tells an entirely 
different story. Not just in Florida but nationwide, district attorneys' 
associations are powerful political actors. They do not just "enforce" the law; 
in fact, they help to make it.

"In state after state, we've seen DA associations hold back reform." -- Udi 
Ofer, director of the ACLU's Campaign for Smart Justice

District attorneys' associations exist in most states. They consist of 
dues-paying members - generally the lead prosecutors from every county or 
district in the state - and have bylaws, like most professional groups. As 
professional organizations, they also have nonprofit status; their activities 
include public education and training as well as lobbying.

For the most part, these prosecutors' associations adopt a "tough on crime" 
stance, advocating for legislation that would give them greater discretion to 
lock people up. "They all too often act as a roadblock to significant reforms," 
says Udi Ofer, director of the Campaign for Smart Justice at the American Civil 
Liberties Union. "In state after state, we've seen DA associations hold back 
reforms that are supported by Democrats and Republicans alike."

According to Fordham University law professor John Pfaff, prosecutors are the 
single most important factor in the increase of prison populations, because 
they tend to file charges even when the evidence suggests that someone should 
go free, and generally pursue the harshest sentence they can get. District 
attorneys and county prosecutors can opt to drop charges - for example, by 
refusing to prosecute marijuana possession - or to favor pretrial intervention. 
But Pfaff found that between 1994 and 2008, even as crime and arrest rates 
fell, the number of felony charges filed by prosecutors increased. From this 
data, he concluded that prosecutors were driving the phenomenon of mass 
incarceration through punitive charges and penalties.

Prosecutors have 1 big reason to protect harsh sentencing: Today, around 95 % 
of federal and state criminal cases end in a plea bargain. Such agreements, in 
which the defendant pleads guilty in exchange for a fixed sentence, avoid the 
time and expense of a jury trial, making it faster and cheaper for prosecutors 
to close cases. And the more draconian the punishments that a prosecutor has at 
her disposal - high mandatory minimums, say, or the ability to charge a 
youthful offender as an adult - the more leverage she has to persuade someone 
to take a plea bargain instead of risking a trial.

In the last year or so, criminal-justice reform has topped the legislative 
agenda in several states, from conservative Florida and Louisiana to liberal 
California, and advocates for reform exist across the political spectrum, from 
the conservative Right on Crime, the Koch brothers, and former House speaker 
Newt Gingrich to the ACLU and Black Lives Matter. In response, prosecutors' 
associations have pushed legislators hard to reject such reforms. And, in most 
cases, they have succeeded.

In Florida, the FPAA's general counsel and lobbyist of 47 years is Arthur 
"Buddy" Jacobs. He lives in Fernandina Beach, an exclusive community on the 
state's northeastern tip. An article in the Fernandina Observer, the local 
paper of record, describes Jacobs - pictured in a glaringly white suit and 
straw hat - giving an eloquent dedication speech at a brass-band ceremony 
unveiling a $100,000 restored train depot. A history buff, Jacobs reminisced on 
the Confederate past of his adopted hometown and thanked the others who helped 
him preserve locally well-known landmarks.

Jacobs has had a bit of trouble with the law himself, making him a 
controversial figure among the prosecutors he represents. In 1991, he was 
indicted for his role in manipulating St. Louis municipal bonds. After entering 
a diversion program and paying a hefty fine, he was accused of the same 
behavior, this time in Fernandina Beach. He managed to escape unscathed, but 
money troubles followed him everywhere. In 2007, the 11th Circuit found Jacobs 
guilty of willful tax evasion based on his profligate spending and disdain for 
paying taxes. An appeals court issued an opinion holding that "the record 
overwhelmingly shows that Mr. Jacobs willfully attempted to evade or defeat his 
taxes," and noted that the record was replete with "badges of fraud." Former 
Jacksonville state attorney Harry Shorstein, who has known Jacobs since 
college, wanted the FPAA to fire him in the 1990s. "Some of us felt that we 
didn't want to be represented by someone under federal indictment," Shorstein 
said.

Preserving history is one of Jacobs's gentlemanly pastimes, but he is himself a 
living anachronism. In his nearly half-century of work with the FPAA, he has 
lobbied for mandatory minimum sentences, lobbied against legislation that would 
allow juvenile offenders to remain in juvenile court, and opposed open-records 
laws. Most recently, he was the primary author of the FPAA's amicus brief 
opposing Ayala on the death penalty. He appears to have taken little of the new 
science on juvenile development into consideration, or the fact that, according 
to the Pew Research Center, support for capital punishment is declining across 
the political spectrum. (Currently, it hovers at 49 %, down from 80 % in the 
mid-1990s.)

Prosecutors are part of this trend, too: Their use of the death penalty has 
been in steep decline in recent years. But Florida has maintained a troubled 
relationship with the practice, and it now has the 2nd-largest death row in the 
nation. A report by the Fair Punishment Project counted 5 counties in Florida 
among the nation's 20 "most deadly." In Jacksonville, the previous state 
attorney, Angela Corey, held the dubious distinction of winning the most death 
sentences in Florida. Nationwide, black people are disproportionately sentenced 
to death, and there is even social-science research to suggest that the more 
"stereotypically black" someone looks, the more likely he is to receive a death 
sentence. Indeed, the majority of death sentences are handed down in the region 
that had once been the Confederate States of America.

The more draconian the punishments that a prosecutor has at her disposal, the 
more leverage she has to force a plea bargain.

Last year, the Florida Supreme Court held that the state's death-penalty 
statute - which allowed people to be condemned to death by a non-unanimous jury 
verdict - was unconstitutional. All executions were placed on hold until the 
Florida Legislature revised the statute to conform with the State Supreme 
Court's ruling. Yet there is still some debate about the fate of those 
currently on death row who were sentenced by non-unanimous verdicts - about 75 
% of the 396 people there.

Throughout Florida's death-penalty controversies, Jacobs and the FPAA have 
fought to prevent reform. This past February, when the Florida Legislature was 
considering its 1st round of fixes to the unconstitutional death-penalty 
statute, Jacobs urged it to push through the necessary changes and resist 
further reforms, in line with his belief that the death penalty is a deterrent 
and that jurors are "too compassionate." As he exhorted lawmakers, "This is a 
real crisis in the criminal-justice system, and it's a real crisis for the 
victims' families of these terrible, terrible crimes."

Stephen Harper, a professor of law at Florida International University, 
emphasizes that Jacobs and the FPAA are quite simply behind the times. "For 35 
years," Harper said, "the FPAA has had unfettered discretion on 
criminal-justice policy.... If you look at polling and changing demographics, I 
don't think the FPAA are in touch with the attitudes of Floridians."

Ironically, the FPAA's brief against Ayala arguably runs counter to its 
members' own interest in maximizing prosecutorial discretion. (The FPAA also 
ran into a bit of trouble when it turned out that large portions of its brief 
were plagiarized from a blog post.) David Sklansky, a law professor at Stanford 
University who studies the role of prosecutors, described this in an e-mail to 
me as "odd." Sklansky added: "It's also odd that they accuse [Ayala] of 'using 
her own moral code??? when she spelled out, explicitly, her reasons for 
deciding not to seek the death penalty, and none of them had to do with 'her 
own moral code.'"

Because she's officially a member of the group, the FPAA did send the amicus 
brief to Ayala before filing it. She responded by e-mail:

Despite being a dues paying member of the FPAA, I am unaware of the process by 
which this Brief was developed. It is beyond clear based on the timing, tone 
and content of this brief that you are not truly interested in my opinion but 
rather checking a box in the event you get asked about it later. Your complete 
failure in genuinely engaging with me on this matter has been deeply 
disappointing given what's at stake for all of us.

When I circled back with former FPAA president Hess, he described what Ayala 
did as a "violation of the Constitution" and added: "If she had just kept her 
mouth shut and said nothing, we wouldn't be talking.... And if she wants to 
change the law and run for the Legislature, I will send her $100." When I asked 
about the perception of race in the dispute, he asserted that "nobody cares if 
she's black, Latino, Oriental, or Asian."

"The Florida Prosecuting Attorneys Association has had unfettered discretion on 
criminal-justice policy." -- Stephen Harper, law professor at Florida 
International University

The death penalty may be Florida's highest-profile issue concerning 
criminal-justice reform, but it's not the only one on which the FPAA has been 
active. In 2001, Jacobs opposed legislation similar to laws existing in several 
other states that allow 1st-time drug offenders to get treatment in lieu of 
jail time. In a brief, he wrote that the proposed legislation violated 
Florida's rules "by taking away and/or severely limiting the prosecutorial 
discretion of the State Prosecutors of Florida."

In addition to opposing treatment for low-level drug offenders and DNA testing 
for people seeking to prove a wrongful conviction, Jacobs has consistently 
opposed reforms to Florida's so-called "direct-file" policy, which currently 
allows prosecutors to send juveniles as young as 14 directly to adult court 
without a hearing. As a result of the policy, Florida sends more kids to adult 
prison than any other state in the country; a 2014 Human Rights Watch report 
also noted that more than 60 % had been sent there for nonviolent crimes. Many 
states, including California, have already begun limiting this practice, based 
on advances in neuroscience showing that juvenile offenders should be 
considered less culpable for their crimes and more capable of change. Reports 
have also shown that people of color account for a disproportionate number of 
the youthful offenders sentenced as adults. (All 50 states still allow a minor 
to be tried as an adult after a formal judicial determination.)

Just this past summer, Jacobs called the juveniles direct-filed to be 
prosecuted in adult courts "bad hardened criminals that wreak havoc over the 
state of Florida." He went on to claim that "Florida was rampant in juvenile 
crime. We had juveniles in Miami carjacking tourists' cars and folks getting 
killed. At a rest stop on I-10, just east of here, we had some folks that were 
killed at a rest stop by some teenagers out of Tallahassee." (Less than 3 % of 
the young people direct-filed to adult court had been accused of murder.)

Even as much of the country - including conservative Florida - moves left on 
criminal-justice reform, Jacobs and the FPAA remain at the forefront of 
conservative reaction. In March, I asked Hess whether Jacobs's own legal 
troubles might affect his position. Ever the Southern gentleman but noticeably 
annoyed, Hess went on a tirade, concluding that Jacobs could remain in office 
as long as the 20 state attorneys approved - and, he added, those state 
attorneys are "all very high-class people." Also, Jacobs had gotten results: 
"He has been an excellent, excellent member of the FPAA," Hess told me. "His 
performance has been exemplary."

Louisiana, like Florida, is governed by some of the harshest criminal-justice 
policies in the nation. In fact, Louisiana incarcerates more people per capita 
than any state in the United States - which incarcerates more people per capita 
than any country in the world. But in 2015, Louisiana elected a governor who 
promised, among other things, to reform the bloated prison system and cut costs 
for the sorely underfunded state.

Governor John Bel Edwards, in conjunction with Pew Research, created a 
bipartisan panel, the Louisiana Justice Reinvestment Task Force, which included 
everyone from prosecutors to members of the clergy. The task force generated a 
report with a list of recommendations intended to reduce the size of 
Louisiana's prison population, save money, and bring state law in line with 
other red states, such as Texas and Mississippi, that have had success with 
decarceration. The report gained the support of business leaders and 
conservatives as well as Democrats. This session, the Louisiana Legislature 
passed that list of sorely needed criminal-justice reforms, which included 
eliminating the sentence of life without parole for juveniles and allowing 
elderly inmates a chance at release. The reforms were projected to generate 
some $300 million in savings over 10 years, most of which would be invested in 
programs to help the people who had been released.

Enter E. Pete Adams, the executive director of the Louisiana District Attorneys 
Association. "We are for trying to get something done, but not at the risk to 
public safety," he told a local paper. Once the legislative session started, 
the LDAA issued its own report opposing every single reform recommendation. The 
bulk of the LDAA's disdain was reserved for the recommendations that would have 
permitted some people convicted of violent felonies to have a chance at 
release. (Most of these concerned inmates who had already served decades in 
prison.) Another of Adams's major issues was with the definition of "violent" 
offenders - a category in which he wanted to include some people convicted of 
nonviolent crimes, because, he argued, they might have had a violent past.

"If you give a legislator the opportunity to go with either the Innocence 
Project or their DA, they???re going with their DA." - ?a Louisiana state 
senator

Will Harrell, the founder and leader of Louisianans for Prison Alternatives, 
argues that "the LDAA's opposition to sensible reform is out of step with our 
neighboring states, the Louisiana people, and even with the honest opinion of 
most state legislators. Frankly," he added, "I even believe their voice at the 
Legislature - Pete Adams - is out of step with the emerging leadership of the 
LDAA. The problem is, he's very good at hiding the ball and spooking folks in 
the Legislature, and that's why the LDAA is the most formidable obstacle to 
reform." This is no exaggeration: From 2012 to 2015, criminal-justice bills 
backed by the LDAA had an 85 % rate of passage in the Louisiana Statehouse, 
while criminal-justice bills it opposed passed only 38 % of the time.

Hillar Moore, the ex-president of the LDAA and the lead prosecutor in East 
Baton Rouge Parish, spoke with me this past spring and was vehement that the 
LDAA wasn't rejecting the changes outright, but rather wanted to conduct 
further research and suggest amendments to the bills up for debate. "We've made 
it clear that we want to work with everyone," Moore said, but "there are some 
[issues] that are nonstarters for us," including any provision to release 
inmates convicted of violent crimes. (For his part, Adams refused to comment 
for this story. I conducted my interview with Moore in April, but he wouldn???t 
comment further after the LDAA's opposition paper was released.)

The association's strategy worked: In mid-May, Governor Edwards announced that 
he and the prosecutors had reached a compromise. While Edwards attempted to 
save face by insisting that most of the original reform recommendations had 
been retained, many key provisions had been gutted, including one that would 
have eliminated sentences of life without parole for youthful offenders - 
something that many states have already outlawed and that the US Supreme Court 
has severely limited.

Adams, who is easily recognized by his bow ties and bushy gray mustache, has 
been the LDAA's executive director for 40 years, representing its interests in 
the public eye and with the Legislature. He represents the model of old-school, 
tough-on-crime prosecutors. Yet even as new and younger district attorneys are 
elected - some of them running on a platform of reform - Adams remains in 
power, driving LDAA policy. The LDAA has also retained the services of a 
part-time lobbyist, prosecutor Hugo Holland, who was famous for putting people 
on death row and has been accused by advocates and higher courts for concealing 
exculpatory evidence in capital cases. In 2011, Holland and another prosecutor 
purchased machine guns and patrolled Caddo Parish, pretending to be police 
offers. Caddo Parish, once known for having the most death-row inmates in 
Louisiana, was forced to fire Holland, but Adams has kept him on the payroll.

During his tenure with the LDAA, Adams has also argued that the burden of proof 
necessary for conviction shouldn't be raised; that juveniles should be tried as 
adults; and that wrongful convictions don't occur in Louisiana - or at least 
not as many as publicized. As a representative of the LDAA, he has lobbied 
against eliminating the habitual-offender law, which imposes draconian 
sentences even on those repeatedly convicted of nonviolent crimes, and he has 
opposed eliminating life without parole for juveniles convicted of non-homicide 
crimes, a practice that was deemed unconstitutional by the US Supreme Court in 
2010. He has also lobbied for stricter punishments for people who misuse 
Supplemental Nutrition Assistance Program benefits (i.e., food stamps).

Adams's most passionate efforts, however, have been reserved for the 
beleaguered public-defender system in Louisiana, which is so underfunded that 
judges this past spring dismissed cases because there were no lawyers to 
represent the defendants. The Southern Poverty Law Center filed a lawsuit this 
year arguing that Louisiana's failure to fund public defenders violated the US 
Constitution's guarantee of counsel. Yet for Adams, the problem is a 
misallocation of funds: The public defenders, he argues, need less, not more, 
money. According to multiple sources, Adams meets regularly with the elected 
public defenders and discourages them from asking for state funding. As Adams 
told a local paper back in 2002: "You have well in excess of 90 % of people who 
find themselves indigent and that number should bear some scrutiny. A 
reasonable person would question the veracity of that. The hidden assumption is 
that money solves all problems - I can't answer that. They ought to begin with 
an analysis of how [public defenders] spend their money." And yet Louisiana is 
among the poorest states in the nation, with a poverty rate of around 20 %.

Adams's arguments haven't changed at all in the past 15 years, even as the 
public-defender system continues to get worse. Public defender Derwyn Bunton of 
Orleans Parish has said that the LDAA is "a very active co-conspirator in mass 
incarceration in Louisiana."

Adams has even attacked the resources that public defenders need to keep up 
with the cases on Louisiana's death row, a major cost. For Adams, this isn't a 
problem caused by the death penalty (which Louisiana has considered eliminating 
but for the opposition of the LDAA and other groups); it's the fault of the 
public defenders. He has argued that too much money was being "wasted" to 
defend people facing execution, because those funds went to larger law firms 
and nonprofit organizations instead of individual public defenders. (The state 
public defender in Louisiana has flatly declared that the notion of people 
"getting rich" from their work on death-penalty cases is ludicrous.)

At the same time, the LDAA has increased funding for itself without any 
noticeable improvement in the quality of criminal justice. Just a few years 
ago, for example, the LDAA requested authorization from the Legislature to 
establish internal debt-collection agencies to extract payments of court fines 
and fees from defendants - with a 20 % premium being kept by the prosecutors. 
In 2016, the LDAA pushed for passage of a bill that would have authorized a 
private corporation to operate an automated system to read license plates and 
issue tickets in nine parishes statewide, with 30 % of the proceeds reaped by 
district attorneys, and the remaining 70 % being split by sheriffs, the 
corporation, and other parties. Prosecutors across the state also abuse what 
are known as "diversion fees": unregulated monies paid to avoid prosecution. 
For instance, according to the office of Louisiana's legislative auditor, which 
collects information reported by the parishes themselves, the 18th Judicial 
Circuit reported $1.19 million in diversion-fee income from just 132 
participants. And according to the 2016 legislative auditor's report, more than 
30 % of the income from the state's district-attorney offices comes from fines 
and fees; in some parishes, over 50 % of the income comes from diversion fees 
and tickets. Finally, Louisiana's prosecutors are known for their own legal 
troubles: In 2016 alone, 3 of Louisiana's 42 elected district attorneys were 
convicted on corruption and other criminal charges.

The Louisiana District Attorneys Association has increased funding for itself 
without any improvement in the quality of criminal justice.

Even so, Louisiana's DAs hold particular sway over public opinion as 
representatives of justice and experts on law and order. Flozell Daniels, who 
was a member of the Louisiana Justice Reinvestment Task Force and is now the 
CEO and president of Foundation for Louisiana, puts the state's struggles with 
criminal-justice reform squarely on the backs of prosecutors, and the LDAA in 
particular. In a guest column for the New Orleans Times-Picayune, Daniels noted 
that "the District Attorney Association representative on the task force 
supported the overwhelming majority of the recommendations," arguing that the 
LDAA is dissembling when it paints the task force's reform recommendations as 
radical. And his view is supported by polling in Louisiana, which suggests that 
the vast majority of residents want reform, including business leaders and 
conservatives.

But the prosecutors persist, because they can win. As a Louisiana state senator 
observed when criminal-justice reform was on the table in 2012: "If you give a 
legislator the opportunity to go either with the Innocence Project or with 
their DA, guess what? They're going to vote with their DA."

The influence of district attorneys' associations extends beyond the usual list 
of red-state suspects. In California, for example, prosecutors sued last year 
to prevent Proposition 57 - a suite of progressive changes to the state's 
criminal law, including reduced sentences - from moving forward. The California 
District Attorneys Association (CDAA) argued that Governor Jerry Brown violated 
a recently enacted law requiring a new comment period after substantial 
revisions. (Brown's office argued that the prosecutors had been given a day to 
consider the revised bill.) Proposition 57 is designed to decrease the state's 
prison population by making more criminal charges punishable by serving time in 
county jail and by offering some long-serving inmates the chance to make parole 
earlier. The law, which voters overwhelmingly approved last November, also 
eliminates giving prosecutors the power to send juvenile offenders directly to 
adult court.

The CDAA has long opposed legislation that would result in lesser penalties, 
going back to the change in California's draconian "3 strikes" law in 2012. 
Since the passage of Proposition 57 and other laws like it, the fearmongering 
has reached a fever pitch, with prosecutors asserting that reducing the 
sentences for those convicted of nonviolent crimes would result in communities 
being inundated by the homeless and drug-addicted. (A representative for the 
CDAA refused to comment for this story, writing in an e-mail: "Most all of the 
prop [sic] 57 information was well Covered [sic] by the press. I'm not going to 
get back into it.")

Rectifying wrongful convictions is yet another reform that prosecutors have 
resisted. Earlier publications by the CDAA include a 40-page rebuttal to a 
report by the Northern California Innocence Project showing a significant 
degree of prosecutorial misconduct in cases of wrongful conviction. Currently, 
the CDAA is requesting changes to legislation that would reduce the imposition 
of cash-bail requirements, which has already passed the State Senate and awaits 
approval in the Assembly. As the ACLU's Udi Ofer observes, "No matter whether 
it's a red state or blue state, DA associations are guided by the same 
principles - mainly seeking to maintain their members' unfettered powers."

There is also a National District Attorneys Association, which is led by Mike 
Ramos, the Republican DA from San Bernardino, California. While not officially 
affiliated with the state-level prosecutors' associations, it has taken 
similarly aggressive stances. In September 2016, the President's Council of 
Advisors on Science and Technology issued a report, "Forensic Science in 
Criminal Courts," offering findings on several types of forensic evidence 
commonly used in courts that have now been discredited by scientists. The PCAST 
report found that the use of bite marks and shoe prints had no evidentiary 
basis. The NDAA immediately issued a rebuttal arguing that the report was 
"scientifically irresponsible," even though the council was composed of many 
experts in their fields. The NDAA has also received a direct boost from the 
Trump administration: Upon taking office, Attorney General Jeff Sessions 
declined to renew the National Commission on Forensic Science, which was 
chartered under the Obama administration. The NDAA applauded the decision.

Thus far, Sessions has proved more than friendly to the interests of 
prosecutors' associations, even as voters appear increasingly inclined to take 
the ramifications of mass incarceration more seriously. In May, Sessions issued 
a memorandum to federal prosecutors requiring them to "charge and pursue the 
most serious, readily provable offense." This is a direct reversal of the Obama 
administration's policies, which generally allowed federal prosecutors to 
exercise discretion in charging and sentencing. Sessions has implied much the 
same policy when it comes to marijuana, indicating that he will reverse the 
Obama administration's policy of not interfering in states that have legalized 
pot use. (Sessions even once said that he supported the death penalty for pot 
dealers.)

While they apply only to federal prosecutors, Sessions's directives - along 
with his reliance on rhetoric from the War on Drugs - have given new relevance 
to the words of people like Pete Adams and Buddy Jacobs, another set of 
throwbacks. Like Sessions, Adams and Jacobs grew up in the Jim Crow South and 
established their careers in the early years of the 1980s tough-on-crime era. 
Yet they have remained in power ever since, part of a good-old-boy system that 
has protected the consolidation of prosecutorial power and opposed anyone who 
seeks to dilute it.

Already, Sessions has toured multiple cities that he has deemed "violent" to 
provide backing for those prosecutors willing to come down hard on groups of 
people - such as gang members and undocumented immigrants - who are easy to 
isolate and already have a negative profile. Baton Rouge is among the 12 cities 
that Sessions chose as part of his fledgling initiative (Chicago and Baltimore 
didn't make the list). The rhetoric of Sessions and his boss, Donald Trump - 
depicting a scourge of black and brown people overtaking urban areas - makes 
the efforts of reform-minded prosecutors like Ayala more difficult, even as it 
emboldens hard-liners. District attorneys' associations may be championing the 
criminal-justice policies of the past, but under Trump's administration, they 
could enjoy a new lease on life.

(source: Jessica Pishko is a San Francisco-based writer for the Fair Punishment 
Project----The Nation)

**********************

A Long Decline in Executions Takes a Detour----Recent court rulings and 
start-stop access to lethal drugs push numbers up this year.



For years, the number of prisoners put to death in the United States has been 
in decline. That is still true, but with a wrinkle: this year will be the 1st 
since 2009 in which there were more executions than the year before. The grim 
milestone will likely be crossed on Wednesday night, when Anthony Shore is 
scheduled to be executed in Texas. Unless the courts intervene, it will be the 
21st execution of the year, 1 more than last year. 8 others are scheduled 
through the end of the year.

Why does this matter? The upswing does not suggest that executions are likely 
to become more common, but it does grow out of recent courtroom battles. Chief 
among them is a big victory that the Supreme Court gave to state officials back 
in 2015. Officials had been looking for new drugs to use in lethal injections, 
and fighting to keep the sources secret from defense lawyers, as pharmaceutical 
companies kept pushing to keep their products out of death chambers. The 
court's decision in the case of Glossip v. Gross set a high bar for arguments 
that new drug combinations would violate the Constitution's ban on "cruel and 
unusual punishment."

The upshot has been to clear the way for executions. This year, Ohio and 
Arkansas began executing again after long pauses (3 years in Ohio, 11 in 
Arkansas). Arkansas was, publicly at least, trying to beat an expiration date 
for their store of the drug midazolam, a sedative, after years of litigation. 
Ohio had been tied up in the courts since prisoner Dennis McGuire visibly 
gasped and choked during his 2014 execution. Other states are trying new drugs: 
this summer, Florida became the 1st to execute with etomidate, an anesthetic, 
and Nevada is planning an execution for November involving fentanyl, the opioid 
implicated in thousands of overdose deaths in recent years, as well as Valium.

Cases can take a decade or more to reach the end of appeals, and the stop-start 
nature of drug availability, as well as litigation-imposed hiatuses, have meant 
that numerous prisoners can reach the end and accumulate in a queue. This 
happened at the national level when the Supreme Court examined lethal injection 
methods in 2008. "We tend to see 'execution sprees' in individual states," said 
Robert Dunham, executive director of the Death Penalty Information Center, 
"followed by significant drop off in executions in those states." In Arkansas, 
the execution of four prisoners in April sparked a media frenzy. In 2015, 
Missouri had the highest execution rate per capita as the state cleared a 
backlog. In 2016, Georgia had more executions than any other state as it 
cleared cases backed up because of drug litigation, according to the Chicago 
Tribune. None of these states have carried out many executions since these 
surges.

Beyond the drug issues, executions in an individual state can stop suddenly 
when a big case casts others in doubt. The Supreme Court struck down the death 
sentence of Florida prisoner Timothy Hurst last year, ruling that jurors, 
rather than a judge, should be the ones making key decisions about whether he 
should be sent to death row. The ruling had potential ramifications for dozens 
of prisoners whose trials involved the same problem, and executions have slowed 
to a trickle - 1 last year, 2 this year, and 1 more scheduled - while lower 
courts make sense of how to apply the ruling. A similar dynamic could arise in 
Alabama, where there have long been challenges to the state's practice (ended 
this year) of letting judges overrule juries to hand down death sentences.

Looking down the road, Texas, long the country's leading executioner, will be 
the state to watch. Executions slowed to 7 last year, and might rise above ten 
this year, but it will still be far less than the 40 carried out in 2000. 
Lethal injection drug battles have had little effect, but Texas prisoners do 
keep getting stays of execution. This may be due in part to a 2013 law 
bolstering the ability of prisoners to contest the forensic science that got 
them convicted. A 2015 law required news of execution dates to be better 
circulated among defense lawyers. "The defense lawyers are getting better and 
better," Judge Elsa Alcala of the state's Court of Criminal Appeals told The 
Texas Tribune last year. "They're able to bring things forth that have never 
been brought forward before."

In Texas and elsewhere, executions are likely to keep declining for 1 big 
reason: juries are handing out fewer death sentences. Texas sentenced only 
three people to death last year, and the situation is even more pronounced in 
Virginia, which has carried out the 2nd-most executions since the 1970s, but 
only 2 this year (and none last year). The state's death row has dwindled to 
four men. (Law professor Brandon Garrett has examined the reasons for this 
decline in death sentences.)

Support for the death penalty by President Donald Trump and Attorney General 
Jeff Sessions has not yet reinvigorated its use, which is mostly a state-level 
issue, and on Election Day last year voters in several locales responsible for 
high rates of death sentences in the past, from Houston to Tampa, elected 
district attorneys who promised to pursue the punishment more sparingly. "There 
will be substantially fewer prisoners left to execute in the long run," Dunham 
said.

But that's the long run.

(source: themarshallproject.org)

******************

Federal inmate sparred death penalty for 4th murder



A federal inmate with end-stage renal disease has been spared the death penalty 
for his 4th murder conviction and the second committed while imprisoned.

The Springfield News-Leader reports that federal jurors couldn't reach a 
unanimous decision Monday in the case against 61-year-old Ulysses Jones Jr. 
Defense attorney Shane Cantin says that means the slowing dying man will 
receive another life term when he's sentenced.

The same jurors had convicted Jones earlier this month of using a makeshift 
knife to kill fellow inmate Timothy Baker as he slept in 2006 at the U.S. 
Medical Center for Federal Prisoners in Springfield. Court records say another 
inmate survived being stabbed.

Jones also has been convicted of 2 robberies and murders in 1979 and 1980 in 
Washington, D.C., and another prison murder in Virginia.

(source: Associated Press)