Private: The Personality Driven Death Penalty

by Robert Smith, Director of the Fair Punishment Project at Harvard Law School

Last year, in Glossip v. Gross, Justice Stephen Breyer supported his point that the death penalty had become truly unusual in America by noting that “the number of active death penalty counties is small and getting smaller” such that “[o]nly a handful of America’s 3,143 counties use the death penalty with any regularity.” Fast-forward one year. Within the past month, the Court has addressed four death penalty cases stemming from the fifteen active death sentencing counties that Breyer highlighted.

The Court added two of the cases to its merits docket for next term, Moore v. Texas and Buck v. Texas, both out of Harris County, once called the buckle of the death belt. It reversed the death sentence in Lynch v. Arizona, a case out of Maricopa County, the jurisdiction with the second most death sentences in America since 2010. And, finally, in Tucker v. Louisiana, Justices Breyer and Ginsburg renewed their invitation for the Court to revisit the Constitutionality of the death penalty in a dissent from the denial of certiorari which queried “whether “geography” and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence.

What is going on in these counties? Population and homicide rates explain some of the differences in a few of the largest counties. But even in those places there is a lot left to be explained. Here’s a hint:

A prosecutor named Dale Cox obtained the death sentence against Lamondre Tucker. Cox was responsible for 1/3 of the death sentences in Louisiana between 2010 and 2015. He infamously told a reporter that we “need to kill more people”, told defense lawyers in a capital case that he wanted to “cut their f---ing throats”, and told jurors that Jesus demanded that people like the defendant have a millstone wrapped around their neck and be thrown into the sea. Therefore, Breyer and Ginsburg would have been correct if they had written: it appears as though the personality and predilections of the prosecutor and not the “comparative egregiousness of the crime” best explained Mr. Tucker’s death sentence. The same statement could be said for Lynch, decided the same day as Tucker. Juan Martinez was the trial prosecutor in that case. He is one of a trio of prosecutors that account for 28 percent of Arizona’s death sentences over the past decade. The Arizona Supreme Court has called out Martinez by name, found that he committed misconduct in at least two previous capital cases, and identified at least seventeen instances of Martinez’s inappropriate behavior in the Lynch case alone. And both Bobby Moore (his original sentence) and Duane Buck were sentenced to die during the Johnny Holmes era in Harris County.

Based on these cases, it began to appear that this geographic isolation of the death penalty could be explained in part by a handful of overzealous personalities who were seeking the death penalty at disproportionate rates. At the Fair Punishment Project, a collaboration between the Charles Hamilton Houston Institute and the Criminal Justice Institute at Harvard Law School, we decided to find out. In a report released today, the FPP—and especially researchers Liz Eisenberg, Rory Fleming, and Stacey Kennard—identify the prosecutors who have obtained the most death sentences in the modern era of death sentencing. We found that three prosecutors—Joe Freeman Britt, Bob Macy, and Donnie Myers—“personally obtained 131 death sentences, a number greater than the total death row populations of 15 states combined.” Moreover, when we included “death sentences obtained under the leadership of Lynne Abraham and Johnny Holmes … that total comes to 440 … or approximately one out of every seven individuals on death row.”

What’s even more striking, though, is that many of these prosecutors have shocking track records of misconduct. Britt, Macy, and Myers had had misconduct found in one third or more of their capital cases:

And, while these three prosecutors “epitomize this over-aggressive and reckless style of prosecution” the report also found that the “personality-driven feature of the death penalty is visible in other states too, including among prosecutors who continue to seek the death penalty today.” Thus, the report concludes that “the application of the death penalty is—and always has been—less about the circumstances of the offense or the characteristics of the person who committed the crime, and more a function of the personality and predilections of the local prosecutors entrusted with the power to seek the ultimate punishment.”

These findings are important for several reasons:

First, geographic isolation of the death penalty is a nuanced way to accurately measure the degree of on-the-ground abandonment of a punishment practice. The fact that behind some of the most active death penalty counties in the modern era—and especially today—are not communities demanding the punishment, but mostly one or a few prosecutors pursuing death is further proof that the vast majority of prosecutors and juries reject the punishment in practice (especially given that death sentences tend to drop precipitously in these locations when these people retire).

Second, the pattern of inappropriate behavior and misconduct that the deadliest prosecutors tend to exhibit is a systemic problem in the administration of the death penalty akin to the inability of intellectually disabled people to work with their lawyers that the Court referred to in Atkins v. Simmons; or the unintentionally perverse reporting incentives of the death penalty on child sexual assault noted in Kennedy v. Louisiana. Though anecdotal at the moment, the result of this systemic flaw seems to be a serious risk that the death penalty is being imposed upon those people for whom the punishment is excessive. The Eighth Amendment requires that the death penalty be limited to only the people who commit the most aggravated homicides and possess the most extreme moral culpability. So, for example, juveniles and the intellectually disabled are categorically exempt from execution due to their diminished moral culpability relative to the typically developing adult. There are so many examples of these outlier prosecutors putting people on death row with similarly crippling impairments. Here are three:

In 2003—just two years before Roper v. Simmons—Maricopa’s Jeannette Gallagher, who is the person with the most death sentences in Arizona over the past decade, put a brain damaged child on death row, telling the jury: “He was 16 going on 35.” She also put a military veteran diagnosed with paranoid schizophrenia on death row. As Justices Breyer and Ginsburg noted in Tucker v. Louisiana, Dale Cox put Lamondre Tucker on death row even though “[a]t the time of the murder, Tucker was 18 years, 5 months, and 6 days old” and “he had an IQ of 74”. In Duval County, Florida, Bernie de la Rionda (22 total death sentences) obtained a death sentence against a man with a “76 IQ” and “impairment of his frontal lobe function” and a “severely depressed man with suicidal ideations whom the judge found to be ‘under the influence of extreme mental or emotional duress.’”