Author: Sarah M. Lambert*

 Fewer people are being sentenced to death in Louisiana.  Of those who are sentenced to death, even fewer are being executed.  In the past fifteen years, only one person has been executed in Louisiana.  The decline in capital punishment reflects a broader trend throughout the United States and around the world.  Public support for the death penalty is the lowest it has been in forty years, with less than half of Americans now supporting the practice.[1]  Bipartisan support for repealing capital punishment is on the rise across the nation, including in Louisiana.  During the 2017 Regular Legislative Session, Democratic Representative Terry Landry introduced House Bill 101 in Louisiana’s House of Representatives, and Republican Senator Dan Claitor introduced a companion, Bill 142, in the Louisiana Senate.  The overarching goal of both bills was to repeal capital punishment in Louisiana.

The Senate Bill passed the Judiciary C Senate Committee with only one senator voting in opposition, while House Bill 101 was one vote short of passage in the House’s Criminal Justice Committee, with a final vote of 8 to 9.  These setbacks have not deterred Louisiana lawmakers from their efforts to abolish capital punishment.  Two similar bills will soon be debated in the 2018 Regular Legislative Session: House Bill 162, introduced by Representative Terry Landry, and Senate Bill 51, introduced by Senator Jean-Paul Morrell.  The goal remains the same: to repeal capital punishment in Louisiana.  Like the 2017 bills, House Bill 162 and Senate Bill 51 provide for the prospective abolition of the death penalty in Louisiana.  Specifically, they propose to eliminate the district attorney’s option to seek a capital verdict for any offenses occurring on or after August 1, 2018.  Since the bills do not provide for retroactive application, the sentences of more than seventy prisoners currently on death row in Louisiana would not be impacted, absent gubernatorial commutations.

This year, only one additional vote is needed for the bills to make it to the respective floors for debate. Louisiana is on track to join the nineteen U.S. states and Washington, D.C. that have already eliminated the death penalty entirely.  Louisiana may seem like an unlikely candidate for the next repeal given its status as a conservative state in the deep south and the world’s leading incarcerator.  However, several key factors make Louisiana the state most likely to next abolish capital punishment.  These factors include: the religious values of Louisiana’s citizens, the state’s death row exoneration and reversal rate, its current financial crisis, its history of prosecutorial misconduct, and its arbitrary application of capital punishment.

  1. Louisiana’s religious values could contribute to the state repealing the death penalty.

Religion is a highly valued aspect of life in Louisiana.[2]  Approximately 26% of adults in Louisiana identify as Catholic.[3]  Catholics generally oppose the death penalty, which is reflected in the abolition movement.  Importantly, states that have a high population of Catholics have repealed the death penalty at significantly higher rates than other states.[4]  Whereas 38% of states have repealed the death penalty overall, 70% of the ten most Catholic states have repealed capital punishment.  Louisiana is in the small 30% minority that has not.

For example, 42% of adults in Rhode Island identify as Catholic, and Rhode Island repealed the death penalty.[5]  Adult Catholics make up 34% of the population in Massachusetts, New Jersey, and New Mexico, and all three of these states have repealed the death penalty.  Connecticut has a Catholic population of 33% and it has ended capital punishment. With a Catholic population of 31%, New York has also ended punishment by death. North Dakota, which has a 26% Catholic population, put an end to the death penalty long ago.  Of the ten states with the highest percentages of Catholic citizens, California (28%), Louisiana (26%), and New Hampshire (26%) are the only three states that have not yet abolished capital punishment.  However, both New Hampshire and Louisiana introduced abolition bills this year.

Bishop Shelton J. Fabre, of the Diocese of Houma-Thibodaux, testified at both hearings last year in support of the abolition bills and expressed the value of human life.[6]   This is in accordance with the view of the Catholic Church, as Pope Francis recently received national attention when he spoke out strongly against capital punishment on behalf of the Catholic Church, stating:

Nowadays the death penalty is inadmissible, no matter how serious the crime committed.  It is an offence against the inviolability of life and the dignity of the human person, which contradicts God’s plan for man and society, and his merciful justice, and impedes the penalty from fulfilling any just objective.  It does not render justice to the victims, but rather fosters vengeance.[7]

Pope Francis further explained, “For the rule of law, the death penalty represents a failure, as it obliges the state to kill in the name of justice. . .. Justice can never be wrought by killing a human being . . . .”[8]

The Catholic Church is not the only religious group that opposes capital punishment.  In fact, many religious leaders have denounced the death penalty, including the American Baptist Church, the Evangelical Lutheran Church in America, and the United Methodist Church.  Additionally, all major Jewish movements in the United States oppose the practice in some form.  The religions that maintain support for capital punishment include the Southern Baptist Convention, the National Association of Evangelicals, and some Protestants.

  1. Louisiana’s high death row exoneration rate coupled with its reversal rate of death sentences could contribute to the state repealing the death penalty.

Most would agree that protection of the innocent is an essential element of any effective justice system.  Unfortunately, Louisiana has the highest exoneration rate in the country.  It has sentenced more innocent people to death per capita than any other state.[9]  Eleven innocent people have been exonerated from death row in Louisiana in the past thirty years: Larry Hudson (wrongfully imprisoned for almost 30 years); Curtis Kyles (wrongfully imprisoned for over thirteen years); Shareef Cousin (wrongfully imprisoned for three years); Michael Graham (wrongfully imprisoned over thirteen years); Albert Burrell (wrongfully imprisoned for over thirteen years); John Thompson (wrongfully imprisoned for eighteen years); Dan Bright (wrongfully imprisoned for eight years); Ryan Matthews (wrongfully imprisoned for over five years); Damon Thibodeaux (wrongfully imprisoned for fifteen years); Glenn Ford (wrongfully imprisoned for almost thirty years and sadly died from cancer one year after he obtained his freedom); and Rodricus Crawford (wrongfully imprisoned for over three years).

The reversal rate of Louisiana death sentences is also overwhelming.  From 1974 to 2015, 76% of Louisiana’s death sentences were reversed and 6% resulted in exoneration.[10]  This means there was an 82% error rate and only 18% of Louisiana’s death sentences were upheld.  Proven cases of innocence along with the lingering fear of condemning an innocent person to die have resulted in increased support for abolition of the death penalty.

  1. Louisiana’s financial crisis could contribute to the state repealing the death penalty.

Louisiana is in the midst of a budget crisis with an estimated $994 million budget deficit.[11]  Many residents and organizations—including college students, disabled persons, hospitals, district attorneys, and sheriffs—are uncertain “about the future of their state funding.”[12]  Studies among a number of jurisdictions reveal that a trial seeking death costs at least $1 million dollars more than a trial seeking life without the possibility of parole.[13]  States with capital punishment pay this higher rate each time a prosecutor seeks a death sentence—whether one is actually handed down and even if the defendant is not actually executed.  The trial phase is just one phase of the capital system.  Once a defendant is sentenced to death, the state must bear the financial burden of the capital system every year thereafter until the inmate is executed (which is unlikely) or dies in prison (which is much more likely).[14]

Though an extensive study of the cost of Louisiana’s capital punishment system has not been conducted, Louisiana has spent almost $100 million on capital defense alone in the past ten years (this equates to ten million dollars per year).  And this amount only accounts for a small part of the capital punishment system—this does not include prosecution costs, incarceration costs, maintenance of death row, the lengthy mandatory appeals process, or other associated expenses. Therefore, the state likely expended millions of dollars on the 82% of Louisiana capital cases that were ultimately reversed.  While prosecution costs are not tracked, in some districts, individual prosecutors are paid $150 an hour for their work on capital cases.[15]

G. Ben Cohen, a criminal defense attorney for the Promise of Justice Initiative in New Orleans, reported that “[a]s of today, the people on death row currently in Louisiana have spent 17.3 years there. On average.”[16] Since executions are often not carried out, the length of time inmates spend on death row will only grow longer, as will the expenses associated therewith.  Cohen estimates the cost of maintaining the death penalty system long enough to secure an execution would be over $230 million without taking into account the costs of prosecuting the cases, as well as the expenses imposed on the courts and the Department of Corrections.

When Kansas was in the midst of a state budget deficit, Republican State Senator Carolynn McGinn attempted to address the shortfall by sponsoring a bill that would replace the death penalty with life sentences.[17]  She discussed the high financial cost that Kansas bears in maintaining a capital system and highlighted the costs of capital investigations, lengthy trials, and frequent capital appeals.  Louisiana bears similarly extensive financial costs.  Removing the death penalty from the books in Louisiana could be the way out of the state’s current economic crisis.

  1. Louisiana’s history of prosecutorial misconduct could contribute to the state repealing the death penalty.

A study of Louisiana death row exonerations in the past decade revealed that the number one contributing cause to wrongful convictions was official misconduct, which was found in 82.4% of capital cases.[18]  Many scholars and the media have expressed a deep concern for this misconduct, as prosecutors hold wide-ranging authority and discretion but appear to have very little oversight.[19]  Prosecutors are held accountable under state attorney disciplinary systems in theory, but many have questioned their success in punishing unethical prosecutorial conduct.

Prosecutorial misconduct in Louisiana has been wide-ranging and highly publicized.  This history includes failing to disclose exculpatory evidence, hiding and/or destroying evidence, intimidation of witnesses, use of unreliable witnesses, withholding crucial information about witnesses, making improper statements to the jury; discrimination in jury selection, and more.[20]  Sources report that official misconduct has been present in all of the death sentences in Louisiana that were later proven wrongful.[21]

Despite many documented instances of prosecutorial misconduct, only one prosecutor in Louisiana, Roger Jordan, has ever been disciplined.[22]  His punishment for withholding evidence in a death penalty case was a three-month suspension that was deferred in its entirety.[23]  Even in the recent case where Assistant District Attorney Ronald Seastrunk was found to have withheld exculpatory evidence, he was merely “publicly reprimanded.”[24]

Though there are many ethical, rule-abiding prosecutors in Louisiana, it only takes one unethical prosecutor to impact the entire system, particularly in the context of the death penalty.  Capital prosecutors in Louisiana have engaged in their fair share of questionable conduct.  Former Caddo Parish District Attorney Dale Cox, who has been recognized as the tenth “deadliest prosecutor” in the nation, was responsible for one-third of Louisiana’s death sentences from 2010 to 2015,[25] and he prosecuted the most recent death row exoneree, Rodricus Crawford.[26]  Cox is quoted as saying, “I think we need to kill more people. . . . We’re going the wrong way with the death penalty . . . we need it more than ever and we’re using it less now.”[27]  Due to the public backlash he received following these controversial statements, Cox decided not to run for re-election.[28]

Former Orleans Parish prosecutor Jim Williams kept a model electric chair on his desk and attached pictures of the five men he sent to death row on the chair; two of these men were later exonerated, two had their death sentences commuted to life, and the last was granted a new trial.[29]  Referring to his work as a prosecutor, Williams once said, “There was no thrill for me unless there was a chance for the death penalty.”[30]  These actions bring into question the level of discretion that should be afforded to one person, particularly when a person’s life is at stake.

  1. Louisiana’s documented arbitrary application of capital punishment could contribute to the state repealing the death penalty.

U.S. Supreme Court Justice Stephen G. Breyer has continually expressed his belief that it is time to revisit whether the death penalty can be applied in a reliable manner.[31]  One of his main concerns is arbitrary application of death sentences.

Louisiana’s application of the death penalty shows that this most severe form of punishment is not reserved for “the worst of the worst.”  The severity of the crime is not the determining factor in whether a defendant will be sentenced to death.  Rather, it seems that a Louisiana defendant’s likelihood of being punished by death has more to do with where the defendant is being prosecuted, the defendant’s race, and the victim’s race.

In Louisiana, there is a direct correlation between the likelihood of a death sentence and the place of prosecution.  In the past fifteen years, only twelve of Louisiana’s sixty-four parishes have sent defendants to death row, with Caddo and East Baton Rouge Parishes responsible for almost half of these death sentences.

There is also a direct correlation between the likelihood of a death sentence and the defendant and his victim’s race.[32]  No white person has been executed in Louisiana for a crime against a black victim since 1752, yet a black person was last executed for killing a white victim in 2000 (the third most recent execution in Louisiana).  A black male who kills a white female in Louisiana is thirty times more likely to be sentenced to death than a black male who kills a fellow black male.[33]  Defendants with white victims are over six times more likely to be sentenced to death than those with black victims and defendants with white victims are fourteen times more likely to be executed once sentenced to death than those with black victims.[34]  Defendants whose victims are white are also less likely to have their cases reversed during the appeals process than those whose victims are black.

Conclusion

Statistics show a drastic decrease in the use of the death penalty at the national and regional level, as well as in in Louisiana.  The aforementioned factors make Louisiana uniquely situated to be the next state to abolish capital punishment.  These factors should weigh heavily on the minds of legislators as they decide whether abolition of the death penalty is in Louisiana’s best interest.  Abolishing the death penalty would embrace the moral values of many of Louisiana’s residents and it could mean saving millions—even billions—of dollars.  This could lead to greater access to education, higher quality healthcare, more services for the disabled, and safer public roads.  Perhaps college students, disabled persons, hospitals, district attorneys, and sheriffs would no longer be “uncertain” about the future of their state funding.  Repealing the death penalty could ultimately lead to a happier, healthier, more prosperous Louisiana.

 

 

* Sarah M. Lambert is a part-time, fourth-year law student at Loyola University New Orleans College of Law and a former member of the Loyola Law Review.  She can be contacted at smlambe2@my.loyno.edu for more information on this topic.

[1] See Baxter Oliphant, Support for death penalty lowest in more than four decades, PEW RESEARCH CTR. (Sep. 29, 2016), www.pewresearch.org/fact-tank/2016/09/29/support-for-death-penalty-lowest-in-more-than-four-decades/.

[2] See Importance of Religion in One’s Life Among Adults in Louisiana, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/state/louisiana/importance-of-religion-in-ones-life/, (last visited Mar. 3, 2018) (In 2014, 71% of adults in Louisiana listed religion as “very important”).

[3] See Religious Landscape Study: Adults in Louisiana, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/state/louisiana/, (last visited Mar. 3, 2018).

[4] See Religious Landscape Study: Catholics—Catholics by State, Table, Pew Research Ctr., http://www.pewforum.org/religious-landscape-study/religious-tradition/catholic/, (last visited Mar. 3, 2018) (data reflects information collected in 2014).

[5] See id.

[6] See Louisiana House of Representatives, Archived Video (May 17, 2017), http://house.louisiana.gov/H_Video/VideoArchivePlayer.aspx?v=house/2017/may/0517_17_CJ; see also Louisiana State Senate Broadcast Archives, Channel 84.1 Senate Committee Room F, http://senate.la.gov/video/videoarchive.asp?v=senate/2017/04/042517JUDC_0.

[7] See Pope Francis: No matter what the crime, ‘the death penalty is inadmissible’, Catholic News Agency

(Mar. 20, 2015), https://www.catholicnewsagency.com/news/pope-francis-no-matter-what-the-crime-the-death-penalty-is-inadmissible-89127.

[8] Id.

[9] See Exonerations by State, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx (last visited Mar. 3, 2018).

[10] See generally Frank R. Baumgartner & Tim Lyman, Louisiana Death-Sentenced Cases and their Reversals, 1976-2015, S.U. J. Race Gender & Poverty, Vol. 7, 2016 (April 26, 2016)

available at https://www.unc.edu/~fbaum/articles/JRGP-DeathRowReversals-2016.pdf.

[11] See Julia O’Donoghue, Louisiana Legislature Adjourns Special Session Early, Doing Nothing to Fix Budget Crisis, Times-Picayune (Mar. 5, 2018).

[12] Id.

[13] See Kelly Phillips Erb, Death and Taxes: The Real Cost of the Death Penalty, Forbes (Sept. 22, 2011), https://www.forbes.com/sites/kellyphillipserb/2011/09/22/death-and-taxes-the-real-cost-of-the-death-penalty/#32934d2d673e.

[14] See  U.S.A. Executions – 1977-Present, Louisiana, DeathPenaltyUSA, http://deathpenaltyusa.org/usa/state/louisiana.htm, (last visited Mar. 3, 2018) (showing Louisiana has only executed four people in the past 20 years).

[15] See Radley Balko, How a Fired Prosecutor Became the Most Powerful Law Enforcement Official in Louisiana, Wash. Post (Nov. 2, 2017), https://www.washingtonpost.com/news/the-watch/wp/2017/11/02/how-a-fired-prosecutor-became-the-most-powerful-law-enforcement-official-in-louisiana/?utm_term=.1a231558058a.

[16] Interview with G. Ben Cohen, The Promise of Justice Initiative, (Mar. 3, 2018).

[17] See NEW VOICES: Republican Senator Says Kansas Death Penalty “Too Costly,” Death Penalty Info. Ctr., https://deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly, (last visited Mar. 3, 2018).

[18] See Causes of Wrongful Convictions, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/causes-wrongful-convictions, (last visited Mar. 3, 2018).

[19] Prosecutors have the authority to decide who to charge with a crime, what crime to charge them with, what evidence should be disclosed, how investigatory resources should be used, if a plea bargain should be made, if the defendant should go to trial, how to proceed at trial, and what sentence should be recommended (including one of life or death). See, e.g., Michelle Ghetti & Paul Killebrew, With Impunity: The Lack of Accountability of A Criminal Prosecutor, 13 Loy. J. Pub. Int. L. 349 (2012); see also See Radley Balko, The Untouchables: America’s Misbehaving Prosecutors, And The System That Protects Them, Huffington Post (Aug. 1, 2013), https://www.huffingtonpost.com/2013/08/01/prosecutorial-misconduct-new-orleans-louisiana_n_3529891.html (updated Dec. 6, 2017).

[20] See Ghetti & Killebrew, supra note 19 at 377–89 (appendices listing Louisiana cases where prosecutorial misconduct was found to have occurred).

[21] See U.S. Supreme Court Grants New Trial to Louisiana Death Row Inmate, Death Penalty Info. Ctr. (reporting that official misconduct was present in all 10 death row exonerees’ cases—prior to Rodricus Crawford’s exoneration); see also Rodricus Crawford, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=5123, (last visited Mar. 3, 2018). (reporting that official misconduct was a contributing factor in Rodricus Crawford’s case).

[22] See generally In re Jordan, 2004-2397 (La. 6/29/05), 913 So. 2d 775.

[23] Id. at 784.

[24] See generally In re Seastrunk, 2017-0178 (La. 10/18/17).

[25] See America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty, Fair Punishment Project (June 2016), available at http://fairpunishment.org/wp-content/uploads/2016/06/FPP-Top5Report_FINAL.pdf.

[26] See Zach Beaird, Dale Cox Brings Bad Press to Caddo, Shreveport Times (July 15, 2015), https://www.shreveporttimes.com/story/news/local/2015/07/15/dale-cox-brings-bad-press-caddo/30223399/.

[27] See Vickie Welborn, UPDATED: ADA on Death Penalty: ‘We need to kill more people’, Shreveport Times (Mar. 27, 2015), https://www.shreveporttimes.com/story/news/local/2015/03/27/glenn-ford-dale-cox-charles-scott-caddo-parish-death-penalty-execution-marty-stroud/70529188/.

[28] See Zack Beaird, supra note 26.

[29] See Radley Balko, The Untouchables, supra note 19.

[30] Id.

[31] See, e.g., Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015) (Breyer, J., dissenting); see also Tucker v. Louisiana, 136 S.Ct. 1801, 195 reh’g denied, 137 S. Ct. 16, 195 L. Ed. 2d 888 (2016) (Breyer, J., dissenting from the denial of certiorari).

[32] See generally Baumgartner & Lyman, supra note 10.

[33] See id. at 69–70.

[34] Id.