There has been so much activity around the death penalty in the three short months of 2019 that I’ve found nearly every reporter I’ve talked to asks some form of the same question: “What is causing this?”
The answer is: a bipartisan insurgency against the death penalty has been rising for several years. In recent months, the mutiny has hit a crescendo.
The latest hit saw California Governor Gavin Newsom place a moratorium on capital punishment in early March, going so far as to close the state’s death chamber. For a state that has maintained the largest death row in the country and spent a jaw-dropping $4 billion dollars to execute 13 people, this was a very big deal.
On the other side of the aisle, we saw Republican Governor Mike DeWine of Ohio also place executions on hold as the state seeks a constitutional method by which to carry them out. Add to that the eight states that have seen Republican-sponsored bills to repeal the death penalty thus far, and you have what is beginning to look like a consensus.
Perhaps the most surprising development this year comes from the U.S. Supreme Court, where there’s been a good bit of movement as well.
Shortly after his appointment, Justice Brett Kavanaugh signaled that he just might be a dark horse on capital punishment, breaking with conservatives during oral arguments in a recent case that pertains to torture, the Eighth Amendment, and execution protocols.
The Supreme Court did decline to hear an appeal by a Georgia death row inmate, Keith Tharpe, whose lawyers argued that a racist juror helped sentence him to death. But the Court’s refusal centered around a technicality, and another capital case was just heard that focuses squarely on matters of racial bias within the death penalty. That case also is shedding light on the ongoing and rarely punished problem of prosecutorial misconduct.
The case of Curtis Flowers is one of the more shocking you’ll come across in the history of capital punishment. And that’s why it has garnered enormous attention from the national media. Season two of the popular podcast "In the Dark" focuses solely on this case.
Flowers, a Mississippi black man of limited means, was first accused in 1997 of the murder of four people in a furniture store where he briefly worked. The prosecutor, Doug Evans, sought the death penalty and secured that verdict despite shoddy evidence that mostly hinged on the testimony of jailhouse informants he had allegedly planted and cut deals with.
The Mississippi Supreme Court promptly overturned the verdict due to egregious prosecutorial misconduct by Evans, as it should have. But Curtis Flowers did not go free; Doug Evans simply prosecuted the case all over again. Let’s keep in mind that 70 percent of the death penalty’s costs are incurred at the trial level, and that each death penalty case can cost ten times that of a life without parole case.
During the second trial, the prosecutor continued to break the rules. He suggested there was proof that a witness was lying (there wasn’t), and he referred to evidence that wasn’t in the record. Evans again achieved a death sentence that was later thrown out due to his own misconduct. Still, he was allowed to re-prosecute the case.
Beginning with trial number three, Evans started stacking his juries. He used all of his strikes to remove African Americans from the jury pool. That jury convicted Flowers for a third time, but since it is illegal to remove jury members based on race — yes, that’s also prosecutorial misconduct — this verdict was again reversed.
Trial number four resulted in a mistrial, and in trial five the train really came off the tracks.
The jury was once again deadlocked, with the one African American serving on the jury as the single holdout. The juror, a man named James Bibbs, did not feel there was enough evidence to convict Flowers. This resulted in the judge dressing him down in the courtroom and having him arrested for perjury. That case dragged on for eight months before Evans finally recused himself at the behest of Bibbs' lawyer, who argued it was a clear conflict of interest for Evans to prosecute a former juror. Once he recused himself, the state attorney general’s office quickly took over and asked that the court dismiss Bibbs’s case.
For the record, in both trials number four and five, Evans continued to use his strikes to remove black jurors.
After all that, if you can believe it, there was a sixth trial, which brings us to the present day.
That case is now before the U.S. Supreme Court, and Justice Kavanaugh is yet again signaling he won’t toe any party line when it comes to justice. Even Justice Clarence Thomas broke his three-year silence and asked a question during the arguments. The court seems primed to rule in Flowers’ favor in a move that could pave the way for real reform on prosecutorial misconduct and racial bias in jury selections.
All in all, 2019 is shaping up to be a groundbreaking year when it comes to capital punishment — and the moment that the country really starts killing off the death penalty.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. To read more of her reports — Click Here Now.
© 2021 Newsmax. All rights reserved.