Standing behind a podium outside the Orlando courthouse, Aramis Ayala, the elected state prosecuting attorney for Florida’s Orange and Osceola counties, announced that after extensive research, discussion, and reflection, she had decided that she could no longer seek the death penalty for defendants charged by her office. “My duty is to seek justice, which is fairness, objectivity, and decency,” she said. “I am prohibited from making the severity of sentences the index of my effectiveness.”
In many ways, Ayala’s announcement in the winter of 2017 should not have been a terribly newsworthy event. Death penalty prosecutions across the country have declined precipitously over the last decade, prompted by mounting evidence that capital punishment does not serve as a deterrent and is extremely expensive, exceedingly fallible, and racist in practice. As juries are increasingly disinclined to impose death sentences, only a dwindling number of prosecutors in isolated geographic pockets regularly continue to seek them. Recent research indicates that officials in just 2 percent of counties are responsible for the majority of the nation’s death sentences — meaning that, for all intents and purposes, Ayala’s decision to stand down was hardly unique.
What made it newsworthy, and touched off a political firestorm, was her decision to say it all out loud.
At the time, Ayala’s office was facing the prosecution of a man named Markeith Loyd, who had killed his pregnant ex-girlfriend and then an Orlando police officer — exactly the kind of case that supporters of capital punishment point to as necessitating the ultimate penalty. Ayala’s decision to seek life in prison for Loyd earned the ire of then-Gov. Rick Scott, who quickly declared that he “completely” disagreed with her decision and would use his executive power to remove the case from her office and give it to an elected prosecutor from another jurisdiction. Ayala, he said, “has made it clear that she will not fight for justice.”
The conflict speaks to just how much power prosecutors have within the criminal justice system, including when it comes to deciding who should die — and what can happen when a reform-minded prosecutor like Ayala counters an entrenched political narrative of what justice looks like.
Indeed, an extensive dataset compiled by The Intercept of individuals sent to death row in active death penalty jurisdictions since July 2, 1976, the start of the “modern” death penalty era, reveals capital punishment as a failed public policy, just as Ayala said. Our set includes 7,335 death sentences from 29 states and the federal system. A staggering 43 percent of this population is no longer on death row — but not because they were executed. Instead, thousands have had their sentences reduced, hundreds have died while awaiting execution, and still hundreds more have been exonerated or released from prison.
Florida’s experiment with capital punishment is a similar failure. Of the 992 people sentenced to death since 1976, 88 have been executed; just 9 percent of the total. Meanwhile, 528 of them — 53 percent — have been released from their death sentences. The vast majority of those individuals have been resentenced to life behind bars, either with or without the possibility of parole. Fifty-nine people once condemned have been released from prison, including 23 who were exonerated. Florida has the highest number of death-row exonerations in the country.
“I was focused on the facts,” Ayala said of her announcement during an interview with The Intercept. “I believed that my job as a leader in this community is to speak the truth, is to explain to people the direction that we are headed, why we’re headed that way, and how this is what is best for the community that I serve.”
“I never expected to be on a first-name basis with the governor of the state of Florida,” she added. “I absolutely had no intent nor did I foresee that happening. In retrospect, understanding the dynamics and the unspoken commitment to the death penalty by those in power, now I get it. It’s a tragedy, but I do get it.”
The Machinery of Death
As a young assistant prosecutor in Polk County in 2002, fresh out of law school, Ayala considered the death penalty as part of a system of “equitable” punishments. “There are a ton of crimes in the state of Florida that result in a life sentence — and in Florida, a life sentence is an actual, true life sentence. You die in prison,” she said. “Knowing there are non-homicide crimes that can result in that, my mindset originally was that based upon equity, then yes, the next highest sentence would be not just a life sentence, but the loss of your life.” That sort of breezy acceptance of the death penalty fit within the prosecutorial culture she had come up in, which “tends to have this idea that the more successful you are, the more severe the penalties are,” she said. “It’s almost a reward to reach the stage in your career to have the authority and power to kill someone.”
The annals of the American death penalty are riddled with such prosecutors. “Cowboy” Bob Macy, who spent 21 years as the district attorney in Oklahoma County, Oklahoma, and personally secured 54 death sentences, kept a personalized set of baseball cards on his desk that featured his “accomplishments.” The courts found misconduct in more than a third of the cases Macy tried, and three defendants he condemned were later exonerated. Donald Myers, who secured 39 death sentences over a 40-year career as the top prosecutor in Lexington County, South Carolina, was known as “Doctor Death.” He had a penchant for excluding jurors based on race and using racist language to describe black defendants. In his zeal to secure a death sentence, Myers committed misconduct in nearly half of the capital cases he tried, the courts later found. Six death sentences were overturned specifically because of his misconduct, according to a 2016 report from the Fair Punishment Project.
“It is, I would say, a somewhat perverted culture that dehumanizes not just the person we’re killing, but dehumanizes ourself and our sense of loss,” Ayala said. “That was the culture in which I grew up.”
In 2004, Ayala moved to Orlando and took a job as a public defender, where she saw the other side of things. She understood the seriousness of the crimes her clients were charged with, but also saw them as people shaped by their experiences and circumstances. “It changed everything,” she said. “I … started seeing the human side of the criminal justice system” and understanding that the facts of the case go beyond the criminal charges.
“It’s almost a reward to reach the stage in your career to have the authority and power to kill someone.”
After roughly a decade, Ayala went back to prosecuting cases as an assistant state attorney in the Orlando office she now runs. She was there for two years before running for election in 2016; her victory that November made headlines in part because she would become the first black elected prosecutor in Florida history.
Notably, Ayala had not campaigned on the death penalty — mostly, she said, because there was no functional death penalty in Florida at the time. Indeed, within the span of a year, both the U.S. and Florida Supreme Courts had ruled the state’s statutory scheme unconstitutional. Following the U.S. high court’s January 2016 ruling in Hurst v. Florida, the state court decided that the decision should apply retroactively, which meant that upwards of 200 death-row inmates might have to be resentenced — more than 50 percent of the state’s death-row population. At the time of Ayala’s election, Florida’s capital punishment system had essentially unraveled, forcing the state Legislature to rewrite its death penalty statute in order to pass constitutional muster.
It was after Ayala assumed office in January 2017 that she realized capital punishment was no longer just a matter of front-line prosecution or defense; it was now a matter of policy — a policy that she would have to invoke, one that would require her to switch on the machinery of death. On the campaign trail, she’d promised “prosecutorial accountability,” she recalled. Determining whether to seek the death penalty certainly fit into that frame. She did the research — including into the circumstances of the Loyd case — and then made her decision, which she delivered that day in February.
It wasn’t knee-jerk or emotional, Ayala said. “I think that all informed decisions should evolve,” she explained. “If we are in the same place on any topic over a 10-, 20-year period, that problem is bigger than the issue.”
How Is That Proper?
To say that this didn’t go over well with Scott — or the Florida Legislature — would be an understatement. In all, Scott reassigned 24 aggravated murder cases to another elected state attorney. Ayala took him to court, arguing that he had overstepped his bounds and interfered with her prosecutorial discretion.
The idea of prosecutorial discretion is axiomatic. Prosecutors are charged with seeing that justice is done, which naturally includes the power to decide who to charge, how to charge them, and what punishment to seek. In taking away an entire class of cases because he didn’t personally agree with Ayala’s decisions, Scott was upsetting that balance of power and crossing state constitutional lines, according to Ayala’s lawyer, Roy Austin. As Austin argued before the Florida Supreme Court in the summer of 2017, there was nothing in the law that required Ayala to seek the death penalty, only a requirement that a defendant be notified if she intended to do so.
Although this was the same court that had only recently found Florida’s capital punishment statute unconstitutional, throwing the fate of more than half the state’s death convictions into doubt, several of the judges were now wringing their hands over the idea that Ayala’s decision would throw the system into chaos. “You’re going to have a situation where in the state of Florida, you’re going to have one circuit with the death penalty and another without it, all over the place,” then-Chief Justice Jorge Labarga noted. “How is that proper?”
“Your Honor,” Austin replied, “that is exactly what happens right now.”
Eight counties have not sent anyone to Florida’s death row since 1976, according to The Intercept’s dataset. And, as it is across the country, elsewhere in the state the number of death penalty convictions varies widely, often far out of proportion to the local population. Miami-Dade County is the state’s most populous, with roughly 2.8 million residents. Since 1976, Miami-Dade has sent 114 people to death row, according to the dataset. By contrast, Duval County, which has a population of under 1 million, has sent 107. Orange and Osceola counties, where Ayala is the chief prosecutor, have a combined population of roughly 1.8 million and sent just 50 people to death row over the last 43 years.
In the end, the court sided with Scott in a 5-2 opinion. By saying she would not seek the death penalty, the court ruled, Ayala was not utilizing her discretion, she was eschewing it.
If you look at the challenges reform prosecutors across the country have faced, “it all has to do with questioning our use of discretion,” said Ayala. “And when you understand and look at the history of discretion, when more than 99 percent of the elected prosecutors in the country were white and/or male, it’s now that we’re having the conversation that discretion is something that is questioned.”
As Ayala’s case was making its way through the courts, the Legislature slashed the budget of her office by more than $1 million and cut 21 positions. Still, Scott’s decision to punt the cases to another prosecutor didn’t really change anything. To date, the majority of the transferred cases are still pending. A number of them are awaiting rehearing in light of the Hurst decision. The cases that have gone to trial have so far resulted in life sentences — including the Loyd case.
Wanton and Freakish
Ayala is not alone in facing backlash for challenging longstanding prosecutorial practices, including where the death penalty is concerned. In St. Louis County, Missouri, Prosecuting Attorney Wesley Bell has taken heat from the police union and at least one state lawmaker for a series of reforms, including a decision not to seek the death penalty in a high-profile murder and rape case. After Bell said he would change the office’s policies on handling certain crimes, Republican state Rep. Jim Murphy filed a bill that would allow the state attorney general to take over cases the prosecutor declined to pursue. “A prosecutor’s job is to enforce the laws,” Murphy told Mother Jones. “He can have a case-by-case discretion, but certainly not discretion to just become the king.” (The bill did not pass.)
Then there’s Philadelphia District Attorney Larry Krasner, arguably the country’s most prominent reform prosecutor, who has also earned a healthy dose of official ire. State lawmakers passed a bill that would allow Philadelphia police to sidestep the DA and take certain crimes directly to the state AG for prosecution. In July, Krasner’s office filed an extraordinary brief with the state Supreme Court, arguing that the death penalty should be found unconstitutional. To come to that conclusion, his office had studied 155 death sentences handed down in Philadelphia between 1978 and the end of 2017, just before Krasner took office. The results were dismal: A majority of the defendants were poor and had received deficient legal representation. Seventy-two percent of the cases were eventually overturned, the majority resulting in a lesser sentence. Nearly everyone from the county left on death row is black.
“These facts call into question the constitutionality of the death penalty as it has been applied in the county where it has been most actively employed,” Krasner wrote. “To be clear: The problem is not with the statute, but rather with its application.” But crafting a statute that “comports” with constitutional standards has not happened, the brief argued, as revealed by the high reversal rate showing that death sentences have been applied in a “wanton and freakish, arbitrary and capricious manner.”
The Pennsylvania District Attorneys Association balked. The problem was legislative, not constitutional, they argued, and the fact that the cases were overturned didn’t mean the underlying death sentences were unwarranted. “On the contrary,” they wrote, “that appellate courts have determined that the standards or procedures were not followed in a particular case is evidence that the standards and procedures — which include a robust appellate process — work.”
On September 27, the Pennsylvania Supreme Court declined to find the state’s law unconstitutional, saying it would continue to assess the fairness of the law on a case-by-case basis.
A Dangerous Culture
The same hostility and cries of abuse of discretion have not been leveled at the countless prosecutors who have used their power to justify repeatedly seeking the death penalty.
Prosecutors like Lynne Abraham, a longstanding predecessor of Krasner’s dubbed the “Queen of Death,” described herself as “passionate” about the death penalty, which, in 1995, she told the New York Times Magazine was “manifestly correct.” During her tenure, the office secured 108 death sentences — including many that were overturned and cited in Krasner’s brief as proof that the system is dysfunctional. Just as the Pennsylvania District Attorneys Association argued this summer, Abraham claimed that mistakes eventually ferreted out by the appellate courts — often despite opposition from the state — merely meant the system worked.
More recently, there’s the example of Jackie Lacey, the first black female district attorney in Los Angeles County. Even as California’s capital punishment system has all but collapsed under its own weight, with Gov. Gavin Newsom issuing a moratorium on executions and going so far as to dismantle the state’s death chamber, Lacey has continued to press forward with capital cases. Over the last seven years, she has far outpaced most other jurisdictions, securing 22 death sentences, all against people of color. In nine of those cases, the defendants were represented by lawyers who “were previously or subsequently disbarred, suspended, or charged with misconduct,” according to a report from the American Civil Liberties Union. “A tenth defendant had a lawyer who repeatedly fell asleep through his trial.” In a statement to the Los Angeles Times, Lacey said she only sought the death penalty in a small fraction of crimes and would continue to do so unless capital punishment was abolished.
Meanwhile, California provides another stark example of the outsized role jurisdiction plays in determining who will get a death sentence. Riverside County has roughly a quarter of the residents of Los Angeles County, but over the same seven-year period, according to The Intercept’s dataset, prosecutors there sentenced 28 people to death, 25 of them people of color.
But for all the prosecutors and other officials who have been vocal defenders of the death penalty, a growing number of veteran practitioners have been adding their voices to those like Krasner and Ayala.
In Nevada, former Washoe County prosecutor Thomas Viloria has been increasingly passionate and public in calling for his state to finally abolish the death penalty. Back in the mid-1990s, he was awarded his office’s Top Trial Dog award. The plaque hangs on the wall in his office in Reno. Among the engravings is the phrase “Justice Demands Death,” the closing line Viloria would offer jurors when trying capital cases. He doesn’t believe that anymore.
In an interview with The Intercept, he recalled the jury returning a death sentence in one of his cases. He could “feel a wave coming off the jury, of energy,” he said. “It didn’t feel good. It just felt bad. Evil.” He couldn’t stop thinking about it. He lay in bed that night wondering “whether this is the right thing that we really ought to be doing.” It was not, he concluded. “The process is so random in terms of the ultimate decision to seek the death penalty,” often vested in a single elected prosecutor. “If you’ve got a culture of un-enlightenment” within the DA’s office, he said, “it’s dangerous, very dangerous.”
When Law and Justice Don’t Align
In late May, Ayala posted a video to her office’s Facebook page. In it, she sits at a conference room table looking intently into the camera. She describes wanting to be a lawyer since she was a young girl — fifth grade, to be exact — and the evolution of her thinking and practice that brought her to the state attorney’s office. She says that seeking justice, increasing diversity, and raising the standard of prosecutorial accountability have been her priorities, while also expanding “our thinking as it relates to prosecutorial culture and the traditions within prosecution and the administration of justice.”
Yet, despite her accomplishments, she had a big announcement to make: She would not be running for re-election in 2020. After the Florida Supreme Court’s ruling, she said, it had become “abundantly clear to me that death penalty law in the state of Florida is in direct conflict with my view and my vision for the administration of justice.”
If anything, Ayala’s confrontation with the governor and the Supreme Court over the limits of her ability to reform the system from within has steeled her position. “My job as a prosecutor is the pursuit of justice,” she told The Intercept. “I believed, naively, that law and justice would align in this situation, and they don’t, so there’s absolutely no way that I can take an oath, genuinely knowing that I am intending to pursue justice as a state attorney, when the law has impeded that by saying that I have to seek death.”
Ayala has already removed herself from the process as much as possible. She created a panel of lawyers within her office who are tasked with deciding whether to seek the death penalty in individual cases. To date, under this arrangement, the office has filed an intent to pursue death in seven cases.
In the meantime, Ayala has just over a year left in office and said she intends to continue to press forward with reform efforts. “When prosecutors are being mindful of reform efforts, it is for the good of this country. It is for humanizing people,” she said. “It is for building a better rapport with our communities because we also know that people who trust the … criminal justice process are more likely to respond positively to law enforcement. When you respond positively to law enforcement and you can rely on law enforcement, it makes us all safe,” she continued. “It ultimately is for safety versus the badge of honor for being the harshest in this field.”
The Intercept’s death-row dataset is a living document, available on GitHub, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. If you have relevant information, please email us at firstname.lastname@example.org.
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