How one mother’s battle to save the life of the man who killed her daughter has focused attention again on the case for capital punishment. By Emily Bazeion
On a Saturday evening in July 2013, just before 6:30, James Rhodes was recorded on a surveillance camera walking into a Metro PCS phone store in Jacksonville, Florida.
He was wearing a black do-rag and a blue bandanna, which he pulled over his nose and mouth. Shelby Farah, the store manager, stood behind the counter. Rhodes pointed a gun at her and demanded the money in the cash register. Shelby gave it to him. Then Rhodes shot her in the head. She was 20 years old. He was 21.
Shelby, the oldest of three siblings in a family of Palestinian descent, was working and planning to start college in the autumn. Her mother, Darlene Farah, had been nervous when her daughter started as a manager of the Metro PCS branch, which was in a high-crime part of town, miles from their home near the beach.
But Shelby told her mother she felt comfortable in the neighbourhood; she’d gone to high school nearby, attending a magnet programme on criminal justice. She was nicknamed “peacemaker” in middle school because she couldn’t stand to see kids argue.
An accomplished cheerleader, she volunteered for two seasons as a coach for a group of girls instead of pursuing a chance to make the cheerleading squad for the Jaguars football team.
Rhodes, who is black, was placed in foster care at age 5 and went to live at a state boys’ home at 6. He reads at a third-grade level and struggles with simple math. At 17, Rhodes moved to an older cousin’s house with his younger half sister. After a couple of weeks, their cousin disappeared, leaving them without money for food or rent. The landlord evicted them.
Within 14 months, Rhodes was arrested for petty theft at Sears, Wal-mart, and Kmart and for jumping and robbing a man with four other boys. At 19, he was jailed for brandishing a gun at two women. Rhodes says he was high when he killed Farah. He told his lawyer, the assistant public defender Debra Billard, that he was sorry for what he had done. In early 2014, Billard told prosecutors that Rhodes would plead guilty in exchange for a sentence of life without parole. Instead, the state was determined to seek the death penalty.
In most of the US, it would be very unlikely for prosecutors to pursue death for a defendant like James Rhodes. Execution is supposed to be a punishment for the “worst of the worst”, Justice David Souter wrote a decade ago. With violent crime falling, and bipartisan concerns about the rising costs of capital murder trials increasing — some states spend an average of $1m more on litigation for a defendant sentenced to death than on one sentenced to life in prison — the death penalty is on the decline in the US.
Twenty states and the District of Columbia have abolished capital punishment. Four more have imposed a moratorium on executions. Of the 26 remaining states, only 14 handed down any death sentences last year, for a total of 50 across the country — less than half the number six years before.
California, which issued more than a quarter of last year’s death sentences, hasn’t actually executed anyone since 2006. A new geography of capital punishment in the US is taking shape, with just 2% of America’s counties now accounting for a majority of the people sitting on death row.
An even smaller fraction of these counties still imposes death sentences regularly. In June 2015, in the US Supreme Court case Glossip v Gross, which involved lethal injection, Justice Stephen Breyer noted in a dissent that only 15 counties — out of more than 3,000 across the US — had imposed five or more new death sentences since 2010.
The number rises to 16 counties if Breyer’s count is extended through the end of 2015. Duval County, which includes Jacksonville, a city of nearly 900,000 where Shelby Farah was killed, is among the 16.
In his dissent in Glossip, Breyer staked out new territory in the debate over whether the death penalty has proved too unfair, and racially discriminatory, to continue. His opinion sent a wave of excitement through a community of scholars and advocates around the country who have been fighting for years, and in some instances decades, to end executions. A deep examination of the counties where the death penalty is concentrated, several of them argue, reveals that in many, the justice systems are riddled with flaws, influencing the fates of countless defendants, as well as James Rhodes.
The Supreme Court has been trying for more than 40 years to write rules that can fairly determine which murderers live and which die. In 1972, the court came close to abolishing the death penalty — because, as five justices argued for different reasons in five separate opinions, it was being imposed arbitrarily, and thus qualified as the “cruel and unusual punishment” that the Eighth Amendment prohibits.
Justice Potter Stewart likened receiving the death penalty to “being struck by lightning” for “a capriciously selected random handful”. Justice Thurgood Marshall argued that the “impotence” of the poor and of minorities “leaves them victims of a sanction that the wealthier, better-represented, just-as-guilty person can escape”.
And yet the US court allowed states to try to correct the problem by passing new laws that limited the death penalty to certain types of crimes the state considered most blameworthy. “The idea was to make sentencing decisions turn on the severity of a defendant’s offence instead of random factors, such as where the crime occurred, or insidious factors, such as race,” says Evan Mandery, a professor at John Jay College of Criminal Justice and the author of A Wild Justice: The Death and Resurrection of Capital Punishment in America.
Strong public sentiment in favour of maintaining capital punishment propelled 35 states to pass revised death-penalty laws. The Supreme Court allowed the new statutes to stand if they enumerated “aggravating factors” that weighed in favour of death, and allowed the defence to present mitigating evidence that weighed against it.
Back then, Breyer explained in his Glossip dissent (in which he was joined by Justice Ruth Bader Ginsburg), the court believed “that the constitutional infirmities in the death penalty could be healed”. But he argued that the court now knows otherwise: “Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed.” Breyer wrote that there is “convincing evidence” that innocent people have been executed in three states, and he described near-misses, with more than 100 exonerations on death row.
He also laid out the proof that race affects who is selected for execution. The seminal study in the field, conducted in Georgia in the 1970s, found after controlling for many other factors that the death penalty was far more likely if a victim was white, especially if a defendant was black. Research since then has confirmed the disparity in states across America.
“Racism is the historical force that has most deeply marked the American death penalty,” says Carol Steiker, a Harvard law professor and an author of the forthcoming book Courting Death: The Supreme Court and Capital Punishment From Colonial Days to the Present. But in 1987, in a 5-4 decision, the Supreme Court rejected a challenge that sought to abolish the death penalty based on the evidence of racial discrimination in the Georgia study. Justice Lewis Powell, who cast the fifth vote, said four years later that he regretted it. By then, however, he had left the court.
In light of this history, Breyer emphasised a geography-based argument in his dissent last year. “Perhaps as a result” of the death penalty’s demonstrated flaws, he began, “most places within the United States have abandoned its use”. Along with pointing out the concentration of death sentences in a small number of counties, Breyer mentioned that only one third of the American population lived in a state that had conducted an execution in the previous three years. Last year’s total number of executions — 28 — is less than half the annual total of a decade earlier.
Breyer was building on an analytic approach the court had used before. At least three times in the last decade-and-a-half, a majority of justices has found a punishment to
be cruel and unusual, and therefore unconstitutional, because it was rarely used in “actual sentencing practices”, as the court put it.
The justices ended the execution of intellectually disabled people in 2002 after observing that such executions had become “uncommon” even though they remained legal in many states. Three years later, Justice Anthony Kennedy, the court’s crucial swing voter, wrote a majority opinion declaring that a “national consensus” had emerged against the death penalty for juvenile offenders. Kennedy cited the “infrequency of its use even where it remains on the books”. He took the same approach in 2010 to ban life without parole for juveniles convicted of a crime other than murder.
It would be a far more sweeping change for the US Supreme Court to declare a national consensus for ending the death penalty. Today polls show that more than 60% of Americans continue to favour capital punishment, though more than half say they would prefer to impose life without parole if given the option.
Nonetheless, Breyer was laying the groundwork for abolition, by making an argument, anchored in the Constitution’s “cruel and unusual” language, that the retreat of the death penalty county by county could one day persuade the court to end it everywhere. And Kennedy has expressed the view that the rare use of a punishment should be seen as evidence that the penalty is unconstitutional because it’s not serving a meaningful purpose.
What separates the 16 counties where the death penalty regularly endures from the rest of America, where it is fading away? The 16 counties span seven states in the South and West. They include major cities like Los Angeles, Houston, Las Vegas, and Phoenix; suburban areas like Orange County and San Bernardino in California; and semi-rural pockets like Mobile County, Alabama, and Caddo Parish, Louisiana. Some are dominated by Democratic voters, some by Republicans, and a few are evenly split. Many of the counties have high numbers of murders, but so do plenty of other places that don’t use the death penalty.
Brandon Garrett, a law professor at the University of Virginia, along with a research team at Harvard Law School called the Fair Punishment Project, has been trying to identify the factors that explain why certain counties still regularly impose capital punishment.
They have been delving into the death-penalty records of the 16 counties and comparing them with those of other jurisdictions and have found three key features that often characterise the 16. “The people who get the death penalty tend to live in places with overaggressive prosecutors and defence lawyers who aren’t up to the task of defending against them — that’s a double whammy,” says Robert J Smith, who directs the project.
“Then in some places there’s a third element: A cultural legacy of racial bias and exclusion. It’s just not true that we execute the people who are the most culpable.”
In the weeks after her daughter died, Darlene Farah, distraught, fantasised about smuggling a gun into court to kill James Rhodes. At the same time, she wanted to learn everything she could about the murder. She talked to people who knew Rhodes, and she hired a former FBI agent to help her investigate his background. They found a trail of abuse and neglect.
Rhodes’s mother abandoned him when he was 8 months old. His father was a drug addict who was in and out of prison, leaving Rhodes with his elderly grandmother. A bus driver who picked him up from her house for daycare reported that he was often dirty and crying from hunger.
After Rhodes went to live in the boys’ home at 6, the state periodically tried to reunite him with his father. Rhodes would dress up and wait, his caseworker reported, but often his father didn’t come; once, after his father did visit with his girlfriend and a baby, Rhodes was so upset that he curled up in a foetal position, sucking his thumb to comfort himself. When he was 9, an older boy at the home sexually assaulted him.
The more Farah learned, the more complicated her feelings became. Then, after a pretrial hearing in February 2014, Farah was approached by Debra Billard, Rhodes’s lawyer, in the company of a prosecutor, to discuss the possibility of a guilty plea and a life sentence.
Farah, who was raising her children on her own, was inclined to avoid a trial. Her younger children, Caleb, then 17, and Nycole, then 15, were struggling with their grief and having difficulty concentrating in school. They wanted the case to end. “We all knew Shelby wouldn’t have wanted him to die,” Farah told me when I visited her this spring. Still, she hesitated. What if Caleb and Nycole blamed her for not pressing to punish Rhodes as much as possible? What if people judged her?
Farah took her children to pray with the Rev Reginald Gundy, the senior pastor at Mount Sinai Missionary Baptist Church. She had known him since her younger children were in middle school, when they went to his church with neighbours. They prayed together and decided they wanted Rhodes to plead guilty and live with what he had done to Shelby and to them. Farah asked Pastor Gundy to go with her to tell the prosecutor. “The state raised him,” she often says. “How can they say now that they want to kill him?”
Angela Corey, the state attorney in Florida’s Fourth Judicial Circuit, which includes Duval County, gave no indication of offering a plea deal. Corey prosecuted dozens of murder cases herself over 36 years as a trial lawyer. (In 2012, governor Rick Scott tapped her to oversee the prosecution of George Zimmerman for killing Trayvon Martin. Zimmerman was acquitted; she was criticised for overcharging him.) Corey, 61, has made her reputation, in part, by winning verdicts that carry the death penalty. She has one of the highest rates of death sentences in the country, with 24 (19 in Duval) in the eight years since she was elected.
Even compared with the three other Florida counties on the list of 16, Duval County is an outlier. The state attorney in one of the three, Miami-Dade County, which has twice the population of Corey’s jurisdiction and twice the annual number of murders, has five death sentences over the same period. Death-penalty opponents question whether Corey gives too little weight to the backgrounds of defendants. “Other prosecutors in Florida care about mitigating evidence like chronic and serious child abuse,” says Stephen K Harper, the executive director of the Florida Centre for Capital Representation. “Angela Corey does not.”
As most prosecutors cut back on the death penalty, they typically reserve the punishment for murders with heinous circumstances or defendants with clearly violent histories. But Florida’s statute, which includes 16 “aggravating” factors, gives them broad discretion to seek the death penalty.
In Rhodes’s case, in addition to citing the robbery at the time of the murder, Corey said Rhodes had previously committed a crime involving violence when he brandished the gun. Though Rhodes didn’t hurt anyone at the time, he was accused of pointing the weapon towards two women while standing on the street in front of their house.
One of them, he said, had been arguing in text messages with a girl he liked. Rhodes pleaded guilty and received a three-year prison sentence. “I don’t think this would be a death case in Gainesville, and it would surprise me if it was a death case elsewhere in the state,” says Alan Chipperfield, the chief assistant public defender in Gainesville and former head of the homicide unit for the public defender’s office in Jacksonville.
With Corey refusing to relent, Farah began speaking to the press about her opposition to the death sentence in her daughter’s case. Last summer, Billard, Rhodes’s lawyer, met with Corey and Bernie de la Rionda, the prosecutor handling Rhodes’s case, to argue for her client’s life. De la Rionda has obtained more than 25 death sentences in his career, making him one of the “deadliest” trial lawyers in the country, according to the Fair Punishment Project. “I will not apologise for seeking the death penalty in appropriate cases,” he told me.
Billard presented Rhodes’s history of abuse and neglect and pointed out that while in jail for Farah’s murder, Rhodes received a 67 on an IQ test, a score that makes him potentially ineligible for the death penalty because of intellectual disability. Though prosecutors might persuade the jury to overlook the low score, because Rhodes tested in the 70s during his childhood, they could lose on appeal over this issue. Corey wouldn’t budge, however, and in July 2015 the trial judge ruled that the death-penalty case could proceed despite Rhodes’s low IQ score.
This February, over Farah’s objections, de la Rionda showed her son, Caleb, now 19, the video of his sister’s murder. That night, Caleb stopped staying at his mother’s house. He told the press he had changed his mind: He wanted the state to execute his sister’s killer. At a hearing in May, Caleb sat apart from his mother, who held a framed picture of Shelby on her lap. When she caught her son’s eye, he barely acknowledged her. After the hearing, de la Rionda hugged Caleb. “It feels like they’re trying to punish me,” Darlene said.
I spoke to Corey in July and asked why she insisted on the death penalty in Rhodes’s case. “It’s my statutory and constitutional duty to seek justice for this community and to give the victim’s family justice,” she said. When I asked about Darlene Farah’s wish for justice through a life sentence, Corey told me that the families of victims “do not control the seeking of the death penalty”.
The Metro PCS store where Shelby Farah was killed sits on an industrial strip of Main St in north Jacksonville near an auto-parts store and a King Crab House. To the west are smaller streets pockmarked by abandoned houses, where drug dealers sometimes stash supplies. This is one of the parts of the city that is mostly black, a residential pattern that dates to the 1930s, when “coloured districts” were adjacent to two incinerators, according to a city plan.
Over the years, attempts at integration were met with violence. On a Saturday in August 1960, a white mob of 200 chased black demonstrators who had been sitting at whites-only lunch counters, beating them with bats and axe handles. “There was no police protection during two weeks of sit-ins,” says Rodney L Hurst Sr, an NAACP leader who helped organise the protest and has written two books about the city’s history.
Over the following decades, African-Americans were shut out of city contracts and often relegated to menial or dangerous jobs. In a 1989 report commissioned by the city, black businesspeople said they commonly had to leave Jacksonville to make a living. That year, two residents died in the north-west quadrant because of flooding, and three African-American members of the city council pleaded unsuccessfully for money for sewers and drainage.
When they walked out of a council meeting in protest, sheriff’s deputies marched them back inside, with one of them in handcuffs. Alvin Brown became the first African-American to be elected mayor in 2011. Pastor Gundy campaigned for him, as did Darlene and Shelby Farah. During his single term, students and activists waged a battle to remove the name of Nathan B Forrest, a Confederate lieutenant general and the first Grand Wizard of the Ku Klux Klan, from a mostly black high school. They finally succeeded in 2014. “Cities like Atlanta, Tampa, and Fort Lauderdale confronted their racial problems after the 1960s,” Hurst says. “Jacksonville did not. It put its head in the sand.”
Corey took office in 2009 with a law-and-order message and strong ties to the police. She increased the rate of convictions, but some of her decisions regarding charges alienated leaders of the private bar. “This city has been embarrassed across the country by Angela Corey,” Hank Coxe, a former president of the Florida Bar, told me.
He talked about two cases that have drawn attention. In 2010, Marissa Alexander, a 31-year-old black woman in Jacksonville who had been abused on multiple occasions by her husband, fired a warning shot at the wall near him while his two children were in the room. Alexander, who had no criminal history, said she acted out of fear that her husband would hurt her. Corey said she acted in anger and charged Alexander with three counts of aggravated assault with a firearm, each carrying a 20-year mandatory-minimum sentence.
After Alexander was convicted, Jesse Jackson travelled to Jacksonville to ask Corey to intervene. The state attorney said there was nothing she could do, and Alexander spent nearly three years in prison before an appeals court threw out the verdict against her.
In 2011, Coxe joined other private lawyers to represent Cristian Fernandez, a 12-year-old whom Corey charged, as an adult, with first-degree murder. Cristian was left at home alone with his 2-year-old half brother, David. At some point, prosecutors claim, Cristian hurt David; the 2-year-old lost consciousness, and Cristian called his mother. It took eight hours for her to take David to the hospital, where he died. Cristian had a history of being abused: When he was a toddler and his mother was 14, they were both placed in foster care after they were found in a filthy trailer without electricity. His mother later married a man who beat him. When his school reported the abuse and the police tried to arrest Cristian’s stepfather, the man shot himself in the head.
The murder charge Corey brought against Cristian carried a mandatory sentence of life in jail. Corey also ordered the boy to adult prison, where he spent his first month in solitary confinement. In 2013, Cristian’s lawyers negotiated a plea bargain to the juvenile version of manslaughter, with a seven-year sentence in a juvenile facility.
Corey embraced the outcome and said her aim had always been a balance between punishment and rehabilitation for Cristian. But in a documentary about the case, Corey said: “Everyone’s saying, ‘Oh, but, but they’re just a child.’ Well, there’s a line in the sand you have to draw, and you have to say at some point, ‘This person has already had a chance at rehabilitation, or the crime is so serious and done in such a manner as rehabilitation may not be possible.’”
Human rights groups say Corey’s policies have disproportionately affected black defendants. She has continued to charge juveniles as adults, moving more black teens than white ones into the adult system, according to the Southern Poverty Law Centre.
In a 2014 report by Human Rights Watch, Judge Henry Davis, at the time the only black judge on the local circuit court, called prosecutors’ decisions about which teenagers to charge as adults “basically arbitrary”. When black children commit minor infractions and are eligible for civil citations, an alternative to arrest, they are less likely to receive them than eligible white children. Duval County’s population is 30% African-American. During Angela Corey’s tenure, 80% of the defendants sentenced to death were black, compared with 73% of those arrested for murder. In July, when asked at a forum hosted by black lawyers in Jacksonville if the local justice system was fair to black residents, Corey said: “There is no disparity on the basis of race.”
Black jurors are relatively absent from death-penalty trials, which can affect their outcomes. “Research shows the mere presence of blacks on capital juries — on the rare occasions they are seated — can mean the difference between life and death,” saud Melynda J Price, a law professor at the University of Kentucky. But to be seated on a death-penalty case, a prospective juror must say he or she could vote for execution without substantial moral or religious qualms, in keeping with the test set by the Supreme Court. Since African-Americans oppose capital punishment at a higher rate than whites, fewer of them can serve.
In July, Darlene Farah’s son, Caleb, called de la Rionda, the prosecutor, to say he was putting his personal feelings aside: He thought the state should let Rhodes plead guilty and take a life sentence. “He said he doesn’t like what this case is doing to our family,” Darlene said. “My heart hit the floor.”
Soon after, Darlene got a card from James Rhodes, which he made for her 50th birthday. “I thank your son for changing his mind,” he wrote. “I thank you for trying to save my life when I gave up on my own life.”
In January, the Supreme Court invalidated Florida’s capital-punishment law, because it didn’t require juries to find at least one aggravating factor before imposing the death penalty. (Alabama has a similar rule, which the court’s decision called into doubt.) The Florida Legislature rushed to pass a new sentencing law, which was also challenged, and an appeal is pending before the Florida Supreme Court. Depending on the court’s ruling, many of the nearly 400 inmates on the state’s death row could have a new avenue of appeal, and hope of averting execution.
It’s not clear how the election for state attorney will affect Rhodes’s trial, which was postponed in early August because of the uncertain status of Florida’s death-penalty law.
One of the candidates, Melissa Nelson, who supports capital punishment, has not promised to spare him if she is elected. But she has publicly faulted Corey for treating Darlene Farah badly, and Farah hopes she can discuss the case with Nelson if she wins.
While unseating a chief prosecutor like Angela Corey tends to reduce death sentences, the long-time expectations of veterans in the system — judges and staff lawyers who specialise in trying homicide cases — can keep the gears of death-penalty prosecutions turning.
Lee Kovarsky, a University of Maryland law professor, calls this “muscle memory”. The prosecutors who try death-penalty cases are often “some of the top people in the office”, says Brandon Garrett of the University of Virginia. “It’s a tall order to make them stop.”
The surest way to reverse the momentum is to make it hard to win in court by raising the quality of the defence. In the last several years, Virginia and Georgia each adopted a statewide system of capital-defender offices with salaried lawyers and investigators. In Virginia, formerly the nation’s second biggest executioner (after Texas), no one has been sentenced to death in five years. Juries in Georgia have delivered only four death sentences in the last six years.
A related shift is evident even in Harris County, Texas, home to Houston and its suburbs and the centre of capital punishment since the 1970s. Cost concerns and a statewide string of exonerations have reduced support for the death penalty to the lowest point in 35 years.
Only 27% of residents would choose to impose it over life imprisonment, according to an annual survey released in April. Texas Defender Service, a public-interest legal group, has been training and consulting with court-appointed lawyers to improve the quality of death-penalty representation. No one has received a new death sentence in Harris County since 2014.
Advocates see the shrinking geography of capital punishment as the most promising path to ending executions in the country for good. It’s a self-reinforcing strategy: Once a county loses the habit of meting out death sentences, it’s probably less likely to do so in the future, Garrett’s research suggests.
And the more unusual the death penalty becomes, the more emboldened the Supreme Court could be to decide that it is also cruel, as justices including Kennedy and Breyer have come to understand that word.
To receive a death sentence remains as random as being “struck by lightning”, Justice Breyer wrote last year, echoing Justice Potter Stewart’s words from half a century ago. “How then,” Breyer asked, “can we reconcile the death penalty with the demands of a US Constitution that first and foremost insists upon a rule of law?”
Emily Bazelon is a staff writer for the New York Times magazine and the Truman Capote fellow at Yale Law School. She last wrote about Kamala Harris, the California attorney general.
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