On June 30th, we released a report on America’s Top Five Deadliest Prosecutors. The goal of the report was to show that the death penalty is not just geographically isolated, but also that within individual jurisdictions, one or a handful of prosecutors can account for an oversized number of death sentences. When we examined the records of the top five prosecutors who account for the most sentences in the modern era, we found troubling not only the number of death sentences that these individuals obtained, but also the number of times where a court found that the prosecutor engaged in inappropriate behavior, or obtained a death verdict despite evidence that the person suffered from serious functional impairment. In a system where the death penalty is supposed to be reserved only for a subset of people who are the most culpable and commit the most aggravated homicides, these prosecutors did not appear to consistently exercise the standard of judgment and care necessary to ensure that only the most culpable are executed.

We were surprised and humbled by the attention that the report garnered in outlets ranging from The New York Times to Wilmington Journal. And we have been fortunate to engage in dialogue about the substance of the report and its ramifications with journalists, academics, defense lawyers, and prosecutors. The level of surprise generated by the information contained in the report reveals a knowledge gap between the perception of how the death penalty operates and its actual machinery. One of the key goals of the Fair Punishment Project is to reduce that gap, so we are proud of the hundreds of hours we spent combing newspapers, reading appellate opinions, and scouring legal pleadings.

Our conversations also revealed places where more research is needed, and given that our ultimate goal is to illuminate how the death penalty system operates with as much granularity and accuracy as possible, we felt it important to reflect on where additional layers of detail could be explored.

First, though the personality-driven death penalty is an important part of understanding the operation of the death penalty, it is also important to account for how death verdicts are obtained. For example, in a number of cases we cite, the prosecutor obtained a death sentence against a person with a severe mental illness or intellectual disability, but prosecutorial overzealousness is only half of the problem. Inadequate defense lawyering is the other half. Structurally, if a defense lawyer investigates a mental health claim thoroughly and early in the pretrial process, and presents that claim to the prosecutor, the prosecutor is in a better place to evaluate the culpability of the defendant before deciding which sentence to seek. An overly-harsh sentence may be the result of either of these problems, or both of them. We will be shining a spotlight on the problem of inadequate defense lawyering in our forthcoming report on the death penalty.

Moreover, over the past decades, courts, lawyers, and the public have become more attuned to claims about mitigated culpability as the scientific research and public understanding of these impairments has accumulated. Therefore, there is a difference between prosecutors who still seek the death penalty for youthful defendants or seriously mentally ill defendants today, and prosecutors who made the same decisions 20 or 30 years ago. We were not always able to make this distinction due to limitations on the information were we able to obtain, but the point is important nonetheless. To paraphrase Justice John Paul Stevens, “Society changes. . . Knowledge accumulates. We learn, sometimes, from our mistakes. Punishments that did not seem cruel and unusual at one time may, in the light of reason and experience, be found cruel and unusual at a later time.”

The prosecutors that we mentioned in this report stand out either nationally or in their respective states in terms of the number of death sentences they obtained. Each of the prosecutors has been found by courts to have committed inappropriate behavior in capital cases, and each of them has put people on death row who suffer from serious functional impairments. However, while conducting this research it became clear that there were some significant differences between the prosecutors noted in our report. For example, Abe Laeser in Miami, spent three decades in one of the largest and busiest state attorney’s office in America. If one compares the percentage of homicide cases in which courts found that Laeser acted inappropriately with prosecutors like Donnie Myers, Joe Freeman Britt, or Bob Macy–who come from far less populous jurisdictions–it likely would become clear that Laeser is not in the same league in terms of the frequency or severity of the inappropriate behavior that courts have identified. To be clear, in capital cases any inappropriate behavior is intolerable, and the margin for error should be as close to non-existent as possible, but it also is important to note the differences in degree, frequency, and kind of misconduct and overzealousness between individual prosecutors.

Finally, one of the most significant lessons we learned relates to the difficulty of data collection. It took a team of half a dozen people more than four months to comb through court opinions, transcripts, news articles, and pleadings to find out very basic information about cases involving life and death decisions. We attempted to verify information with secondary and tertiary sources whenever possible. The process was slow, tedious, and certainly imperfect, but what is most striking is how difficult it was to find accurate information about a process involving state-sanctioned killing. Records were at times inaccurate, inaccessible, and unclear. We have already issued one minor correction based on inaccurate information that we obtained. The difficulty in obtaining the information featured in our report has further strengthened our resolve to bring more attention and analysis to a legal process that has been obscured for too long.

Our next three reports are already in the works, and we are excited to ignite further discussion about this important topic.