Wednesday, July 22, 2015

Part III, Death Penalty Capital, USA

This is the last of three blog posts focusing on Brazos County, Texas and the death penalty.

Part I discussed the per capita rates of execution for counties in Texas, concluding my home, Brazos county, Texas has the second highest rate of execution per 100,000 residents in Texas. For reasons contained in the post, I concluded Brazos county is the Death Penalty Capital, USA. In Part II, I dug deeper into the numbers, discussing the commonality of the three highest per capita execution counties in Texas and what factors had to be present for a county to become Death Penalty Capital, USA.

A willingness to shoulder the burden of cost is one of those factors. Death penalty prosecutions have become almost cost prohibitive for cash strapped counties. In this way death penalty abolitionists have been accused of taking a page from abortion abolitionist's playbook: If you cannot abolish the the offending policy outright, then make it as difficult as possible to utilize.

This begins with the cost of death penalty prosecution. They are expensive and the costs are continuing to escalate for reason not necessarily germane to this post.

And I do have news from Death Penalty Capital, USA on the budgetary cash drain in making the death penalty decision.

 In August, 2015 yet another capital murder, death penalty case is scheduled to begin here in Brazos County. The defendant in the case is Gabriel Hall. Hall is of Filipino decent, was adopted at 11 years of ageand was 18 years of age when arrested for capital murder. Travel to and investigation in the Phillippines has driven much of the cost in the case, now in it's fourth year. Brazos county has paid out over $822,000 to date on the case - before jury selection is slated to begin. Although difficult to generalize, that figure will likely double by the end of the trial. If so, Brazos county will spend nearly $2 million in prosecuting the case to verdict.

Gabriel Hall's adopted parents are Wes and Karen (Kruse) Hall. Wes Hall is a local attorney and former local Justice of the Peace. Karen Kruse Hall is president of Central Texas Orphan Mission Alliance whose statement of mission can be found here. Karen Kruse Hall is the daughter of Ed Kruse, the family which owns Blue Bell Creameries.

Brazos County is footing the bill for Gabriel Hall's defense.

In February, 2013, Stanley Robertson, who Brazos county prosecutors sought the death penalty for, was instead sentenced to life without possibility of parole (LWOP). According to The Bryan College Station Eagle, around $500,000 was spent for defense and non-budgeted prosecution costs.

For those of you keeping a tally of the cash bleed to my county, that is a combined $1.32 million spent on two cases, one which resulted in LWOP and another which has not yet begun jury selection.

But there is more.

Christian Olsen is one of four Brazos county offenders on death row. His case was reversed on initial direct appeal. Following the reversal, Brazos county prosecutors decided to again seek the death penalty for Olsen. Olsen is set to be re-tried in October, 2015. I do not have current costs to Brazos County on the initial trial, appeal and now retrial, but like Robertson, it will easily run into the six figure range, regardless of outcome.

Then, on Friday, July 17, 2015 another Brazos County death row inmate - John Thuesen - received word state district judge Travis Bryan, III recommended to the Texas Court of Criminal Appeals (CCA) that Thuesen receive a new punishment trial. Judge Bryan issued a 112 page Order in Thuesen's initial state post conviction writ application. The Order made findings of ineffective assistance of trial counsel in the failure to develop expert testimony and evidence of PTSD related to Thuesen's military service. A decision by the CCA is likely more than a year away.

The oldest Brazos County death penalty inmate is Marcus Druery, who has been on the row since December, 2003. Currently, his case is back in Brazos County district court on the issue of his competency to be executed.

Finally, Stanley Griffin, represented in initial state post conviction stage by David Dow and the Texas Innocence Network based at the University of Houston Law Center, is still in early stages of the post conviction process. Cost to Brazos county for the Griffin prosecution were similar to that of Roberstson (Disclosure: I was part of the team that defended Stanley Griffin in his capital murder trial).

The larger issue is any county's willingness to bear the cost of a death penalty prosecution. Many would argue cost is not the relevant issue, or if relevant, not a significant factor in the death penalty decision. However, budgeting authorities responsible for allocating scarce resources in a county considering a death penalty prosecution may see it differently after Death Penalty Capital, USA's cautionary tale.

Sunday, July 12, 2015

Part II, Death Penalty Capital, USA

In my last post, Death Penalty, USA, I wrote about Justice Stephen Breyer's dissent (Justice Ginsburg joined) in Glossip v. Gross, and the statistics cited - particularly those citing 2 percent of counties in America being responsibile for the majority of death penalty sentences and resulting executions. Justice Breyer's larger point was the statistics supported an argument of arbitrariness in application that likely made the death penalty in America unconstitutional.

After reading the data, I wanted to know more about the micro-data. It is well known at the macro-level Texas has executed more, by far, than any other. But which counties that comprise Texas send their citizens to the death chamber at the highest rate per capita? What, if anything, do these counties have in common? In other words, if 2 percent of counties in the USA account for most of America's executions since 1976 ("the modern era"), then what are the common relationships for the counties in Texas that execute at the highest per capita rate?

My previous post ranked Texas counties by executions per 100,000 residents. I also included current death row inmates from those respective counties. The highest ranked county was Potter County (Amarillo), but I discounted that rank on account that Amarillo is shared by both Potter and Randall counties - the Amarillo metro area totals more than 265,000 people. Brazos, Smith, and Jefferson counties were number two, three and four, respectively, on the list of executions per 100,000 in population in Texas.

I have taken those counties and compared them by population (2014 estimates) for the 254 counties that comprise Texas. I also included the demographic breakdown by ethnicity per the Texas Department of State Health Services:

County                    Total               Anglo           Black        Hispanic        Other
1.  Harris                4, 391,445    1,318,226      795,556    1,907,830      369,833

20. Jefferson (4)         257,872      107,286         86,114        50,298         14,174
21. McLennan             242,575     135,727         35,343        63,273          8,232
22. Smith (3)               222,393     131,932         39,507        43,437          7,517
23. Brazos (2)             210,570     118,233         22,575        53,964         15,798

254. Loving                           81             59                 0               18                  4

Pretty remarkable is it not? three of the top four Texas counties that execute their citizens at the highest per capita rate fall within four population slots of one another - and all fall just inside the top 10 percent of counties by population in Texas. They are different demographically, however, with African Americans making up a much larger percentage of total population of Jefferson county than either Brazos or Smith counties.

For perspective, here are is the population trends, in aggregate for these counties by decade during the modern death penalty era, courtesy of the Texas Almanac:        

County                    1970           1980        1990               2000         2010
Jefferson:               244,773      250,938    239,397    252,051      252,273
Smith:                      97,096      128,366    151,309    174,706      209,714
Brazos:                    57,978        93,588    121,862     152,415     194,851

While Jefferson County's population has remained virtually unchanged over the forty year span from 1970-2010, Smith and Brazos counties have experienced large population growth (more than twenty percent for Smith from 2000-2010; thirty percent for Brazos over the same period).

Justice Breyer's dissent listed studies related to prosecutors and their role in seeking the death penalty. The cited research concluded stability, and power in the position as important for death penalty purposes. This is borne out in these counties. Jefferson, Smith and Brazos counties all had long term elected district attorneys. Brazos County had Bill Turner, who served thirty one years (1982-2013) as district attorney, Smith County had Jack Skeen, Jr. who serve twenty one years before becoming a Smith county district court judge in 2003, and finally, like Turner, Tom Maness stepped down as district attorney in Jefferson County at the end of 2013 after twenty seven years in office.

I was also interested in data evidencing how socially conservative each of these counties have been historically. I have lived in Brazos county for nearly 30 years, and both my parents were raised in Jefferson County. Thus, I have a good feel for these places. Texas, however, is a very socially conservative state - so saying these counties are socially conservative begs the question. Instead, the real issue is what makes these counties different for death penalty purposes.

I decided to look at political data. Understanding that voting percentages for a specific election is not necessarily indicative of how a population falls on political or social spectrum, here are the percentages and vote counts for the 2012 presidential elections in each of these counties:

County      Candidate    % Vote     Total Vote       Candidate    % Vote      Total Vote
Jefferson:     Romney(R):  48.8%        (43,214)          Obama(D):      50.4%         (44,626)
Smith:         Romney(R):  73.0%        (61,858)          Obama(D):      26.1%         (22,101)
Brazos:       Romney(R):   66.5%        (37,152)         Obama(D):       31.2 %       (17,440)

Jefferson county is the outlier politically. It was one of only 22 counties (out of a total of 254 in Texas) that went Obama in 2012. Reasons are not so important for this post, but Jefferson county's larger African American population and a relatively high (for Texas) union membership were likely big factors. Note the Smith and Brazos county percentages. Smith county had almost had three out of every four voters go Romney in 2012.

So what does all this data mean? Here are some of my conclusion based on this data and experience in Brazos county, death penalty cases there and Texas law. The stability and concomitant discretionary power of an elected district attorney to seek the death penalty is critical. In Brazos County, until 2014, that decision was ultimately made by Bill Turner. Of the 15 executions originating from Brazos County in the modern era, he played a direct role in virtually all of them. Currently Brazos county has three on death row, with a fourth housed there awaiting a new punishment trial in October, 2015 and another death penalty trial scheduled to start in August, 2015. Turner made the initial decision to seek death for all.

I cannot speak with as much knowledge about Smith and Jefferson counties. My impression is although Jack Skeen, Jr. is no longer the district attorney in Smith county, and has not been since 2003, he still wields significant influence there. Tom Maness' tenure as Jefferson County district attorney spans almost identically that of Turner. Smith and Brazos counties are both politically conservative. Brazos county's current death row census was discussed above. Smith county currently has six on death row. Jefferson county one.

What seems apparent, at least to me, is a death penalty prosecution is not necessarily dependent on the facts of the case. Instead, it requires much more. A combination of facts, a stable, powerful elected prosecutor willing to shoulder the risks of seeking the death penalty, a conservative jury pool the DA anticipates is ready to follow them in the death decision, and a county willing to bear the financial burden. This last piece is also part of the prosecutor's risk - a stable district attorney in a less urban area is more likely to be able to sell a budgeting authority on a death penalty prosecution than a new prosecutor who is not as strong as a budgeting authority quietly discouraging it.

A county's tax base and the resultant ability to finance a death penalty trial has become increasing important as death penalty prosecutions have become increasingly expensive, primarily due to investigating and litigating defendant mitigation facts. This will be a topic of another post. The question then becomes this: If a the same hypothetical capital murder occurs in Harris, Brazos, Smith and Loving counties, would each county seek the death penalty? If not, why? Different elected district attorneys? Financial risks? Conservative enough jury pools? If each of these factors result in a different decision in seeking death, are they arbitrary for constitutional purposes?

Justices Breyer and Ginsburg seem to think so.

Wednesday, July 8, 2015

Death Penalty Capital, USA

Justice Stephen Breyer's dissent in Glossip v. Gross has received much media attention, primarily focusing on his call for a review of the constitutionality of the death penalty in America. This post will be the first of two, perhaps three discussing the dissent, some of the research cited in it and speculating about why the research shows what it does.

As part of the dissent Justice Breyer discusses the geography of the death penalty. The research Justice Breyer cites concludes a small percentage of counties in this country are responsible for virtually all death penalty sentences. This supports, according to Justice Breyer, the conclusion that the imposition of the death penalty is arbitrary and thus likely unconstitutional. Justice Breyer relies, in part, on data from the Death Penalty Information Center (DPIC):
[In] 2012, just 59 counties (fewer than 2% of counties in the country) accounted for all death sentences imposed nationwide. DPIC, The 2% Death Penalty: How A Minority of Counties Produce Most Death Cases At Enormous Costs to All 9 (Oct. 2013).
I am a 2 percenter. In other words, I live in one of the 2 percent of counties cited by Justice Breyer and the DPIC study - Brazos County, Texas. I also represent capital/death defendants. Thus I have a unique perspective on the statistics - particularly when the statistics are examined more closely.

The statistics used in the DPIC research are two and half years old. Additionally, to give the statistics proper weight, an apples to apples comparison, or as close to one as possible, is necessary. I wanted to crunch data to reach a per capita number: ranking Texas counties by the number of executions and death row inmates per 100,000 in population. By doing so, population is normed and counties are more effectively compared.

I have used death penalty statistics from Rick Halperin's website on death penalty news and updates. Halperin is Director of SMU's  Embrey Human Rights Program. I have used his statistics, current through June 18. 2015, for executions from each of the Texas counties imposing death sentences. I have used the Texas Department of Criminal Justice website for information concerning which counties account for current death row offenders. I used the Texas Department of State Health Services population and demographic estimate information for 2014. Note, I have rounded statistics for easier reading except for  population totals for Smith and Jefferson County - for reason apparent below.

Here are the top four Texas counties ranked by number of executions per 100,000 residents in the modern era (beginning in 1976), with results current through 2014:

COUNTY/STATE (County Seat)            2014 POP      EXECUTED     DEATHS PER100K/POP

1. Potter County, Texas  (Amarillo)         126,000            10                              7.9
2. Brazos County, Texas  (Bryan)         211,000           13                              6.2
3. Smith County, Texas (Tyler)                222,393           13                              5.85
4. Jefferson County, Texas (Beaumont)   257,872          15                              5.81

Some notes on the statistics. A county must have a population of at least 100,000 residents to rank. With this criteria, Navarro County, with a population of 51,000 does not qualify. However, that county has executed 6 in the modern era (including Cameron Todd Willingham). If included, Navarro would rank first with 11.8 executions per hypothetical100,000 residents.

Potter County shares the city of Amarillo with Randall County (129,000 in population) - the THD stats show Amarillo has a metro area population of over 265,000. I could have considered Randall and Potter Counties together, with both population and executions (Randall County has three), but decided against it. Therefore, Potter County's rate of executions per 100,000 residents is likely inflated.

Compare the figures above with Texas' two largest counties, Harris County, often called the "Death Penalty Capital, USA" and Dallas County:

Harris County, Texas (Houston)                4.2M               123                              2.9
Dallas County, Texas   (Dallas)                 2.4M                54                               2.3

For comparison purposes, here is how States rank for execution of their citizens per 100,000 residents (using population estimates as of July 1, 2014):

1. Oklahoma                                                  3.8M                112                         2.9
2. Texas                                                       27.0M                527                         2.0
3. Missouri                                                     6.0M                 84                          1.4
4. Virginia                                                      8.3M                110                         1.3

For the curious, here are Florida's numbers:

Florida                                                          19.8M               90                           0.45

To give this data more complete context, Potter County has one offender currently awaiting execution on Texas death row. Brazos County has four, but one of that number, Christian Olsen, had his death sentence reversed on direct appeal and is scheduled for a retrial on punishment only - death or life without possibility of parole - in October, 2015. Another Brazos County capital murder/death penalty case is slated to begin in late August 2015. More on that later. Smith County has six attributable to their county on death row. Jefferson County has one on death row.

What does this mean? Well for me, forget Harris County. Brazos County should wear the dubious distinction of "Death Penalty Capital, USA." Given the number of current Texas death row residents, the runner up, with a bullet (no pun intended), is Smith County.

My next post on this topic will consider demographics of various Texas counties where the death penalty is most highly utilized. I will also speculate about prosecutors - their death penalty decisions and how money and tax base have come to the fore in their discretion to seek death. Familiarity with Brazos County, the jury pool, and the prosecutors using that discretion for the last 25 years allow a perspective on the relationship between the numbers and these factors.