In early March, the state of Mississippi agreed to pay Curtis Flowers a total of $500,000 for nearly twenty-three years of wrongful imprisonment.
Flowers was accused of murdering four people in a furniture store in the central Mississippi town of Winona. He was tried six times, four of which resulted in guilty verdicts and death sentences. The other two resulted in hung juries. Between January 1997 and December 2019, Flowers spent most of his time on death row at Mississippi’s infamous Parchman Prison.
“The problem is that prosecutors have proven themselves to be bad at self-policing. Capital punishment sentencing still varies based on a prosecutor’s biases.”
In November 2018, the U.S. Supreme Court agreed to review Flowers’s case. It later found that District Attorney Doug Evans had violated Flowers’s constitutional rights by not seating any Black people on Flowers’s jury nearly a decade prior.
A year later, Evans recused himself from the case—one which he worked for most of his career—and handed it over to the state Attorney General’s office, which dismissed all charges against Flowers. He was promptly released.
Robert Dunham, executive director of the national nonprofit Death Penalty Information Center, tells The Progressive that Flowers’s case is a prime example of how capital punishment is still applied in arbitrary ways.
“Whatever reforms the Supreme Court imagined could be made nearly fifty years ago either have not been made or have not made a difference,” he says.
In 1972, the Supreme Court took a case known as Furman v. Georgia. The defendant, William Henry Furman, stood accused of murder. He openly admitted in court that he tripped over a wire which caused his gun to accidentally misfire while he was robbing someone’s home.
According to the per curiam opinion, the jury knew only that Furman was Black and that he was employed before his admission of guilt. Still, the jury took just one hour and thirty-five minutes to return a guilty verdict and a death sentence.
After the case was argued before the Supreme Court, the Justices each wrote separate opinions. In nearly 200 pages of opinions, the Supreme Court found that the death penalty was being used in an arbitrary and racially discriminatory manner against Furman, and thus constituted cruel and unusual punishment.
“In a Nation committed to equal protection of the laws there is no permissible ‘caste’ aspect of law enforcement,” Justice William J. Brennan wrote in his concurring opinion. “Yet we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied.”
The Furman ruling ushered in a new era of criminal punishment. The number of people sentenced to capital punishment declined for the nineteenth consecutive year in 2019, according to the Bureau of Justice Statistics’s (BJS) annual report on capital punishment.
Year over year, the number of people on death row has steadily declined. But there are still about 2,750 U.S. prisoners facing the ultimate penalty, up from less than 500 in the 1960s, according to BJS data. The number of persons executed under civil authority also fell to a twenty-year low in 2019. A total of twenty-two people were executed, an 86 percent reduction from 1930, when the federal government began collecting data on such killings.
State legislatures are telling the same story. Two states—New Hampshire and New Mexico—have stopped enforcing the death penalty altogether in 2019. That same year, New Hampshire repealed its state statute while the New Mexico Supreme Court declared its state statute to be unconstitutional.
But Dunham argues that such gains paint a misleading picture of the state of the death penalty in the United States today. He says political efforts to reform state death penalty statutes have led to few, if any, real reforms.
“The death penalty is disappearing one state at a time, but reform is a matter that won’t be solved overnight,” he says.
According to Death Penalty Information Center’s report “Enduring Injustice” from September 2020, people of color are still overrepresented in capital punishment cases. The number of people of color on death row, it says, grew from 45.6 percent of the total prison population in 1980 to nearly 60 percent by 2019.
The report also suggests that implicit biases in prosecutors, judges, and jury members may play a role in the unequal distribution of capital punishment. Personal biases certainly exist in some legal circles, but the report says biases can also exist geographically.
For example, former Confederate states executed Black people for a much wider range of offenses than northern states, the report says. Of the nearly 5,000 civil executions noted in the report, only a handful were committed in states outside of the former Confederacy before 1972.
Southern states currently hold more prisoners on death row than any other geographical region, according to statistics published by the Bureau of Justice Statistics. States including Mississippi, Missouri, and North Carolina all have more Black inmates on death row than white inmates.
“The numbers show that there is a consistent pattern over time,” Dunham says. “The problem is that prosecutors have proven themselves to be bad at self-policing. Capital punishment sentencing still varies based on a prosecutor’s biases.”
One issue is that local district Attorneys have complete discretion whether to seek the death penalty. Because an overwhelming majority of local DAs across the country are white males, Dunham argues that this has resulted in Black defendants receiving more severe punishments than white criminals receive for the same crimes.
But not many state lawmakers seem eager to amend or remove their state’s death penalty statutes. Even though New Mexico’s Supreme Court in 1988 ruled that the state’s capital punishment statute is unconstitutional, state lawmakers have yet to change it.
Some states that have bipartisan support for prohibiting capital punishment are also hitting bureaucratic roadblocks. For example, Nevada’s legislature passed a bill to repeal the state’s death penalty statute during the 2021 session.
However, the bill was pulled by Nevadastate Senate Majority Leader Nicole Cannizzaro, Democrat of Las Vegas, who is also a prosecutor in Clark County, before Governor Steve Sisolak could sign it into law. Cannizzaro said that the legislature was unable to come to a consensus as Republicans sought to pull the bill back from full abolition.
Other states are moving in the opposite direction. Lawmakers in Arizona are taking steps to use hydrogen cyanide, a gas that was used at Nazi concentration camps in World War II, to kill inmates on death row. A report by The Guardian suggests the new gas chamber could be operational later this year.
For Dunham, real change will only come when criminal defense and civil rights lawyers are seated on the nation’s highest courts. Currently, the nine Supreme Court justices are all former corporate lawyers and academics.
“We need people who really understand these issues to be deciding these cases,” he says.