The State of Florida wants the death penalty for YNW Melly. What happens now?

On April 18, the State of Florida filed documents registering their intent to seek the death penalty against 19-year-old Florida rapper YNW Melly. Prosecutors maintain that Melly, real name Jamell Demons, last year murdered two of his friends — YNW Sakchaser (born Anthony Williams) and YNW Juvy (born Christopher Thomas Jr.) — "in a cold, calculated and premeditated manner without any pretense of moral or legal justification.” They believe that they can prove “beyond all reasonable doubt” that the murders were “especially heinous, atrocious, or cruel,” that they were committed for financial gain, and that Demons is a known member of a criminal gang. Demons and his alleged accomplice YNW Bortlen (born Cortlen Henry) are both being held at the Broward County Jail while they await trial.

Thirty states in America still use capital punishment; there are more than 2,600 people on death row across the country, 342 of whom are in Florida. But only a small number of those who face the death penalty have their sentences carried out. Five death row inmates have been executed in Florida since the start of 2017, and they had all been on death row for at least two decades. “The single most likely outcome of a capital case in the United States, once someone is sentenced to death, is that the conviction of the death sentence gets overturned in the courts,” Robert Dunham, Executive Director of the Death Penalty Information Center explains to The FADER.

The Death Penalty Information Center is a national non-profit that provides data and analysis on capital punishment in the United States and abroad. They do not take a position for or against the death penalty itself, but they are, Dunham explains, “critical of the ways in which it's been administered.” They oppose “the discriminatory manner in which it's imposed, issues of arbitrariness and cost-effectiveness,” and they intend to “dispel myths about whether the death penalty is a deterrent,” Dunham says. “There’s no evidence that it is.”

The FADER spoke to Dunham about YNW Melly’s case over the phone. Our conversation has been edited for brevity and clarity.

YNW Melly has been charged with double murder, and the state has issued documentation saying that they wish to pursue the death penalty in his case. Is the burden of proof now higher on the State?

Well, what they have to prove differs in every state; there's no national law that governs state prosecution. What makes somebody eligible for the death penalty in one state might not make them eligible for the death penalty in another. What constitutes capital murder is defined differently in each of the states that has the death penalty, and the factors that the jury will consider in deciding whether to impose death once a person is convicted of capital murder also differs from state to state. The national requirement — the federal constitutional requirement — is that the state has the burden of proving every element of the criminal offense beyond a reasonable doubt, and it has the burden of proving every element of each aggravating circumstance beyond a reasonable doubt.

If the state cannot prove every single count or every single piece of premeditation involved with the crime, they could still, say, send a person to jail for life — but a jury will have the final say on whether or not the death penalty will be imposed?

An offense has multiple elements. Each of the elements of the offense has to be proven beyond a reasonable doubt. So, if you don't prove premeditation, it doesn't matter what other elements are are proved, you can't convict somebody of premeditated murder. If you're talking about the death penalty phase, once somebody is convicted of capital murder as defined in Florida, the case advances to a penalty phase. That's a separate hearing in which the state has to prove specific aggravating circumstances, and the defense has an opportunity to introduce what are called mitigating circumstances, which is anything relating to the defendant's character, background, or record — or in the circumstances of the offense, there could be a reason to show that the death penalty is unnecessarily severe or that a punishment of life without parole is sufficient.

Now, that is subject to a jury vote. The jury must unanimously agree that at least one aggravating circumstance is present. If there is less than a unanimous vote in Florida, the outcome is life [in prison without parole]. If the jury unanimously recommends death, then the case goes to a judge. There's a separate hearing, which is called a Spencer Hearing, and after that hearing the judge determines whether he or she will impose the death penalty.

With regards to mitigating circumstances, the documentation filed by the state seems to suggest that they expect YNW Melly’s lawyers to call for a mental health professional — maybe even plead insanity — as part of the defense. Is that common?

First of all, insanity is not a mitigating circumstance. There's currently a case in front of the United States Supreme Court as to whether states have to allow an insanity defense, but what is colloquially referred to as "insanity" is guilt-stage defense. It means that, at the time of the offense, you were incapable of distinguishing right from wrong and understanding the consequences of your actions. That is a very rare defense, and not all mental health defenses are insanity defenses. There are also defenses of diminished capacity, which would be based on a combination of mental health issues: it could be mental illness; it could be intellectual impairments; it could be stresses of a particular situation. [The defense would seek to prove that] on all of those things, you did not have the capacity to formulate a specific intent to kill.

You will typically, in a capital case that goes to the penalty phase, see evidence presented based on neuropsychological evaluations of brain functioning, based on psychological evaluation, looking at the background and upbringing of the defendant.

Broadly speaking, is Florida a particularly bad place to be defending oneself against the death penalty? Is its history with capital punishment worse than that of other states?

Florida has the third-largest death row in the United States. Much of that is attributable to the overly broad death penalty statues that have been in place for much of Florida's recent history. But in 2016, the United States Supreme Court declared the death penalty statute unconstitutional, and in in October 2016, the Florida Supreme Court issued a ruling that death sentences imposed by a judge after a non-unanimous jury vote for death violate the state's constitution. So, since that time, Florida has required a unanimous jury recommendation for death before a judge is permitted to impose a death sentence, and the number of death sentences has declined since then.

But the issue of Florida's practices is less important statewide than the issue of the practices of the counties individually. It's up to the counties to determine whether they're going to seek the death penalty, and county practices vary greatly in what cases they charge capitally, in who gets appointed to handle the representation, and what kinds of resources are made available to defense counsel to handle the representation.

This is Broward County. What’s the record like there?

Broward has a history with the death penalty. In 2013, it was among the 2% of counties in the United States that were responsible for more than half of everyone who was on death row at the time. In 2013, Broward had 23 people on its death row. Broward's population is 1.8 million, so some of that could be expected as a result of its size. But looking at counties that were under two million in size at that time, there were only 11 counties with smaller populations that had more people on death row than Broward did. Overall, Broward had the 23rd largest county death row in the entire United States. To give you a sense of what that means, there are 3,143 counties in the United States. Broward County had more people on death row than did 99.27 percent of all the counties in the United States. So it was in the most prolific 1% of US death sentencing counties.

If YNW Melly is indeed convicted and sentenced to death, how likely is it that he will be executed?

The single most likely outcome of a capital case in the United States, once someone's sentenced to death, is that the conviction of the death sentence gets overturned in the courts. On average, one in seven people who are sentenced to death are ultimately executed — more than 80 percent are not. So, a death sentence doesn't mean execution, necessarily. In some states, it's different from others. In Florida, fewer than one in 10 death sentences that are imposed are actually carried out. Part of that is because the death penalty statute has been declared unconstitutional so many different times.

Is some of that an appeals process?

Yes.

So, if somebody's lawyer were to sit on their hands, it could very well result in an execution being carried out.

Ten percent of the executions in the United States have involved defendants who waived their appeals and did not contest their execution.

So his best option after that would be to continually appeal?

A very high percentage of death-row prisoners — around 98% of them — actively pursue their appeals. All prisoners — capital and non-capital — have three sets of appeals: direct appeal, state post-conviction review, and federal habeas corpus. Capital appeals are much more complex than other appeals and take years to investigate, present, and decide. The single most likely outcome of a capital case once a death sentence is imposed is that it will be overturned at some point during the appeals process. Then the prosecution has to decide whether to seek the death penalty again. Typically, the cases in which a prisoner has been on death row, the longest are cases in which the state has repeatedly denied the prisoner a fair trial or penalty phase and the case has been reversed one or more times.

What are conditions like on death row? Is it essentially just solitary confinement?

Conditions differ in each state, but generally speaking, in Florida, it's administrative segregation — which in lay terms means solitary. If your death sentence is overturned and you are resentenced to life, then typically you'll be in a maximum security prison, but in general population. Even in capital cases where there's a non-capital outcome, the prison does an individualized assessment of the likely dangerousness of the prisoner in a prison setting, and after making that assessment, the prison decides what level of security is necessary.