In anticipation of the 40th anniversary of the U.S. Supreme Court’s landmark death penalty decision, Gregg v. Georgia, today the Fair Punishment Project released a new report called America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty.

The report identified America’s five deadliest head prosecutors out of the thousands that have held that office across the country in the last 40 years. Three of the five prosecutors (Joe Freeman Britt of Robeson County, North Carolina; Donnie Myers of Lexington, South Carolina; and Bob Macy of Oklahoma County, Oklahoma) personally obtained more than 35 death sentences each, while the other two (Lynne Abraham of Philadelphia County, Pennsylvania and Johnny Holmes of Harris County, Texas) oversaw District Attorney offices that obtained more than 100 and 200 death sentences respectively during their tenures. Together, they have put the equivalent of 1 out of every 7 people currently on death row.

READ THE REPORT

The report notes that these “overzealous” personalities disproportionately drove up death sentencing rates in their counties and their states–leaving an outsized impact on death sentencing statistics nationwide.

“The legitimacy of the death penalty is seriously undermined when it is only being used in a small handful of places by an even smaller group of prosecutors who continually engage in misconduct,” said Robert J. Smith, a legal fellow at Harvard Law School and one of the report’s researchers.

“This report suggests that the ‘win-at-all-costs’ mentality adopted by a small group of prosecutors has led to shockingly high rates of prosecutorial misconduct and wrongful convictions,” notes Harvard Law Professor Ronald Sullivan.

Findings include:

  • Three of the top five deadliest prosecutors (Macy, Britt, and Myers) had misconduct found by courts in 33%, 37%, and 46% of their death penalty cases respectively. (Rates are not available for the other two prosecutors who oversaw, but did not personally try, all of the death penalty cases in their counties.)

  • Four of the five deadliest district attorneys prosecuted, or oversaw the prosecution of, eight individuals who were later exonerated and released from death row. This total represents approximately one out of every 20 death row exonerations that have occurred nationwide.

  • Together, these five prosecutors obtained at least 440 death sentences, which is equivalent to approximately 15% of the current U.S. death row population, or approximately one out of every seven people currently sentenced to death.

  • After four of the five deadliest prosecutors left office (the fifth prosecutor is still in office), death sentencing dramatically declined in these jurisdictions, indicating that it was these individual personalities, not an excessive attachment to the death penalty by local residents, that drove up the rates of death sentencing.

“Despite the fact that we have witnessed historic declines in death sentencing in the 40 years since Gregg, a small handful of prosecutors continue to use the death penalty at a disproportionate rate, which contributes to a misperception that the death penalty is widely used when in fact it isn’t. In 2015, death sentences were handed down in just 1% of counties nationwide,” said Professor Emily Hughes of the University of Iowa College of Law.

Professor Daniel S. Medwed of Northeastern University School of Law noted, “When there are so few prosecutors still using the death penalty today and these prosecutors regularly engage in inappropriate behavior, it begs the question about whether the death penalty can be constitutional under these circumstances.”

“What’s striking is the extent to which death sentencing rates plummeted in these jurisdictions after these individual prosecutors left office. Harris County has had 12 times fewer death sentences in the years since Johnny Holmes and his former deputy Chuck Rosenthal departed. While other factors have also contributed to this decline, it is clear that a handful of individuals have had an outsized impact on the death sentencing in Texas and nationwide,” notes Professor Jordan Steiker of the University of Texas Law School. “Without the sentences sought and obtained by these outliers, we would have an even clearer picture of the death penalty’s marginal and declining significance within American criminal justice.”

The report also names five additional District Attorneys who have earned a reputation in their respective states for their zealous pursuit of death sentences, and provides a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America.

Correction, July 7, 2016:

On page 19 of the report, in the section about Abe Laeser, we mistakenly cited two cases, Smith v. State, 7 So.3d 473, 504 (Fl. 2009), where a prosecutor withheld evidence that should have been disclosed, and Connor v. State, 979 So.2d 852, 865 (Fl. 2007), where the defendant was sentenced to death despite a crippling mental impairment. We listed Abe Laeser as the trial lawyer on both cases, but he was in fact a supervisory attorney in the office with no direct role in the cases. The proposition that Laeser withheld evidence is supported by the second case we cited in footnote 136: Rodriguez v. State, 39 So. 3d 275, 287 (Fl. 2010), and also by Wainwright v. Martinez, 621 F. 2d 184, 189 (1980), a non-capital murder trial, where a federal appellate court held that “suppression by the prosecution” of a rap sheet “denied Martinez a fair trial.” The proposition that Mr. Laeser put people with crippling impairments on death row is supported by Knight v. State, 746 So. 2d 423, 428-429 (Fla. 1998), a case in which multiple physicians diagnosed the defendant with paranoid schizophrenia.