Today, Justice Breyer denied a petition from Rhode Island Gov. Lincoln Chafee (I-RI) to delay the transfer of a Rhode Island inmate to federal authorities because of the possibility that he would face a death-penalty prosecution. Chafee appealed to the Supreme Court after a federal circuit court refused to delay a decision requiring Rhode Island to turn over the inmate, Jason Pleu, to federal authorities. Federal prosecutors want custody of Pleu in order to try him for the death of a gas station manager during a robbery in 2010 despite the fact that that kind of case is usually tried by state officials. Chafee has refused to turn over Pleu because under federal law Pleu may face the death penalty if convicted.

Rhode Island has a long history of standing against the death penalty. The state has not executed anyone since 1852, and officially abolished the death penalty in 1984. Chafee argues that the Interstate Agreement on Detainers Act, which governs prisoner transfer, allows him to refuse to surrender Pleu to federal authorities. Earlier this month, the 1st Circuit Court of Appeals ruled that Rhode Island was required to surrender Pleu to federal authorities, and this week, the same court decided 3-2 not to delay the decision until Chafee and Pleu had a chance to appeal to the Supreme Court. The transfer of Pleu may happen as soon as next Tuesday.

Federal officials have refused to indicate whether or not they will seek the death penalty in Pleu’s case. The rate of executions at the federal level are much closer to the rate in Rhode Island than the one in Texas; no one has been executed by the federal government in 9 years, and given the choice between a death sentence and life in prison, juries at the federal level choose life in prison at a rate of more than two to one.

–Alex Brown

Last year, Texas Gov. Rick Perry (R) admitted that he “never struggled . . . at all” with whether someone his state executed might have been innocent. Yet a new book written by Columbia Law Professor James Liebman shows that Carlos DeLuna, executed by Texas in 1989, was innocent. According to Liebman, DeLuna was wrongfully convicted and executed for the murder of Wanda Lopez following a botched investigation. DeLuna and the man believed to have committed the murder, Carlos Hernandez, looked so much alike that they were mistaken for each other in photographs by family members. However, DeLuna, who was clean-shaven and wearing a white shirt, did not fit the description of the eyewitness who said that the murderer was wearing flannel and had a mustache. Police arrested DeLuna anyway and failed to do a formal lineup. Police also failed to formally examine the crime scene, ignoring foot and fingerprints, not taking blood samples, and allowing the scene to be cleaned by gas station employees.

Not only did DeLuna maintain his innocence throughout the investigation and his subsequent incarceration, he told investigators that he knew Hernandez had committed the crime. DeLuna was ignored, and during his trial prosecutors ridiculed his claim:

They told the jury that police had looked for a “Carlos Hernandez” after his name had been passed to them by DeLuna’s lawyers, without success. They had concluded that Hernandez was a fabrication, a “phantom” who simply did not exist. The chief prosecutor said in summing up that Hernandez was a “figment of DeLuna’s imagination”. …

By the end of [a] single day the investigator had uncovered evidence that had eluded scores of Texan police officers, prosecutors, defense lawyers and judges over the six years between DeLuna’s arrest and execution. Carlos Hernandez did indeed exist.[…]

Hernandez had a criminal background that included several violent assaults. He eventually died in prison after attacking his girlfriend with a knife.

DeLuna is not the only man to be wrongfully convicted and executed by the state of Texas. There is persuasive evidence that Cameron Todd Willingham, convicted in the death of his three daughters and executed in 2004, was innocent and DNA tests have undermined the evidence used to convict and execute Claude Jones. Texas continues to lead the nation in executions, accounting for over one-third of US executions since 1976, despite the fact that there were 41 DNA exonerations there from 2002-2011.

Moreover, DeLuna’s case highlights the difficulties inherent in the permanence of the death penalty — despite conservative efforts to dismiss these difficulties. Supreme Court Justice Antonin Scalia said in 2005 that there was not “a single case—not one—in which it is clear that a person was executed for a crime he did not commit.” It’s now hard to doubt that’s not true.

–Alex Brown

The State of Florida has charged George Zimmerman with murdering Trayvon Martin. But that might not be the end of his legal problems.

According to WFTV, an affliate of ABC in Orlando, Zimmerman may soon be charged with a hate crime by the FBI:

WFTV has learned charges against George Zimmerman could be getting more serious. State prosecutors said Zimmerman, a neighborhood watchman, profiled and stalked 17-year-old Trayvon Martin before killing him, so the FBI is now looking into charging him with a hate crime. [...]

FBI investigators are actively questioning witnesses in the retreat at the Twin Lakes neighborhood, seeking evidence for a possible federal hate crime charge.

WFTV notes that “if Zimmerman is charged and found guilty of a federal hate crime involving murder, he could face the death penalty.” FBI officials confirm to ABC News that the investigation is ongoing but say the “hammer won’t be dropped” anytime soon.

Most of the evidence against Zimmerman has yet to be disclosed. Late yesterday, Florida prosecution delivered 67 CDs of evidence against Zimmerman to his attorney. Under Florida law, most of it should be available to the public soon.

Sarah Bufkin, a former intern for ThinkProgress, filed this report from Fayetteville, North Carolina

Three years ago, North Carolina enacted the the Racial Justice Act, which enables death row inmates to challenge their death sentence if race played a substantive factor in “decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.” Thus, an inmate will receive life in prison — as opposed to execution — if there is a pattern of race discrimination in the area where they were convicted, even if they cannot show that they were personally sentenced to die because of their race.

On Friday, Judge Greg Weeks became the first judge to apply this law — commuting the sentence of death-row inmate Marcus Robinson to life without parole after finding that race unfairly tainted the state’s jury selection processes over a 20-year period and in Robinson’s own case. “Race was a materially, practically and statistically significant factor in the decision to exercise preemptory challenges during jury selection,” Judge Weeks told a packed courtroom in Fayetteville, NC after two months of deliberation (“preemptory challenges” refer to a prosecutor or defense attorney’s ability to remove jurors from a jury).

Week’s 167-page decision sets a new precedent for approaching race in criminal justice system by allowing defendants to rely on statistical evidence in making their claims. Prosecutors have indicated they will appeal the ruling within the prescribed 60-day time window.

In arguing his case, Robinson relied primarily on a study done by researchers at Michigan State University in order to demonstrate that race had acted as a statistically significant factor in state prosecutors’ exercise of peremptory strikes in capital cases around the time of his sentencing. Looking at the unadjusted data from strike decisions made in 173 capital cases, the MSU researchers found that nonwhite potential jurors were more than twice as likely to be stricken than their white counterparts in North Carolina. The chance of such a racial disparity occurring in a race-neutral environment is less than one in ten trillion, a figure that Weeks described as “staggering.”

Prosecutors attempted to rebut Robinson’s case by attacking the validity of relying on statistical modeling in the jury selection process, given its complexity. “Number and statistics are not enough,” argued Assistant District Attorney Cal Colyer in his Feb. 15 closing argument. “They are just not enough…Defense attorneys take folks off of juries who are pro-death penalty, and that’s not based upon race. The state takes folks off of juries who are against the death penalty, and that’s not based upon race. It’s based upon answers to questions, attitudes, opinions and beliefs.”

But the MSU study, which Weeks found to be a “valid, highly reliable, statistical study,” also adjusted the raw data to account for explanatory factors such as death-penalty prohibitions. The salient racial disparities remained.

In fact, Weeks concluded that the state’s case was not only insufficient to rebut Robinson’s evidence, but that “in many instances it advanced and strengthened that evidence.” Prosecutors in many instances intentionally discriminated against black venire members, the court found.

Weeks also stressed that Friday’s decision was not about Robinson’s actions or even the composition of the jury that sentenced him to death; instead, it and the Racial Justice Act more widely aim to uphold the integrity of the criminal justice system. That mandate is now under review at the NC General Assembly, however, where legislators are holding committee meetings to debate potential revisions to the statute after failing to repeal it over Gov. Bev Perdue’s veto last December. Regardless, Robinson’s case marks an important turn in the national conversation over race and the death penalty—and “should serve as a clear signal of the need for reform in criminal proceedings,” according to Weeks.

“It is the hope of this Court,” he said, “that we now are at the beginning of the end of the struggle to end racial discrimination in our justice system.”

The Economist maps out every American execution since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases after effectively suspending all executions nationwide for four years. Over one-third of all executions during this period took place in Texas, for a total of 481 people killed by that state. Of the remaining, non-Texas executions, the overwhelming majority are clustered in a small group of southern states:

It’s worth noting that, although the death penalty is still technically legal in most states, actual executions are very rare in most of the country — even after a person has been sentenced to death row. According to a 2011 study by the Death Penalty Information Center, thirty-two U.S. jurisdictions executed no one in the previous five years and more than half of those jurisdictions executed no one after the Supreme Court permitted executions to continue in 1976. Only 12 states executed someone in 2010, and only 7 states executed more than one person.

The increasing rarity of the death penalty in most of the country not only reflects America’s evolution away from inhumane and irreversible criminal justice policy, it also has constitutional implications. The Constitution forbids “cruel and unusual punishments,” and the death penalty is increasingly unusual in the overwhelming majority of the nation. At the very least, Texas’ status as the outlier jurisdiction suggests that an Eighth Amendment solution may be necessary.

Yet another death row inmate in Texas may in fact not be guilty of the crime that put him there. Robert Gene Will was convicted in the 2000 slaying of Deputy Sheriff Barrett Hill in Harris County, Texas. Will and another man, Michael Rosario, were caught trying to break into a car in December 2000. Both men fled, but Will says he was apprehended and placed in handcuffs by police. That’s when someone shot Deputy Sheriff Hill.

Will says that the shooter couldn’t have been him, on account of his hands literally being tied behind his back. And his lawyers argue that Rosario, the accomplice in the attempted car burglary, has admitted to at least five people that he was the one who pulled the trigger that morning. And now, Will’s case is attracting even more attention after a U.S District Judge voiced his own reservations about the initial conviction and the appeal that was conducted. The Houston Chronicle reports:

“The questions raised during post-judgment factual development about Will’s actual innocence create disturbing uncertainties …,” [Judge Keith] Ellison wrote in a Jan. 17 memorandum. “On top of the considerable evidence supporting Will’s innocence and the important errors in the trial court, there must also be addressed the total absence of eyewitness testimony or strongly probative forensic evidence. With facts such as these, and only circumstantial evidence supporting Will’s conviction and death sentence, the court laments the strict limitations placed upon it.”

Judge Ellison was limited in his ability to hear new evidence before making a decision on whether to grant an appeal to Will, and despite his expressed dismay over the lower court’s verdict, was forced to deny the appeal on a technicality. But Will and his defense attorneys still have avenues open to them, including a recent Supreme Court ruling that allows for convicted criminals to, in some cases, challenge the competency of their state-assigned appeals lawyers. For Will, whose appointed attorney filed a legal brief that copied extensively from one he filed previously for a completely different case, the Supreme Court decision offers a ray of hope.

Texas has a well-earned reputation for unsympathetic governors who are undeterred at overseeing more executions than any other state in the country. Current Gov. Rick Perry presided over 235 executions during his time in office, by far the most of any governor in the modern era. This despite several questionable convictions that call into question the use of the death penalty at all.