Law Reviews

LAW REVIEWS: The American Experiment with Capital Punishment

A recent law review article by Professors Carol and Jordan Steiker describes how the Supreme Court's attempt to closely regulate the death penalty has led instead to more unpredictability in its practice, especially with executions. Writing in the Southern California Law Review, the Steikers, of Harvard Law School and the University of Texas Law School respectively, note that, "[T]he shape of contemporary death penalty practice is in many respects less regular than the practice it replaced. ... Some death penalty jurisdictions execute a substantial percentage of those sentenced to death, whereas others carry out virtually no executions. Overall, we have largely replaced a lottery for death sentences with a lottery for executions, and the engine behind that change is regulation itself." As an example, the authors point to Texas and Virginia, which have been responsible for almost half (620) of the executions in the modern era. On the other hand, California and Pennsylvania, which have had more death sentences than Texas and Virginia, have carried out only 16 executions in the same time span. The Steikers conclude that the death penalty's arbitrariness may lead to its abolition: "regulation now appears to pose extraordinary problems for the continued retention of the death penalty."

ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared

Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."

STUDIES: "Predicting Erroneous Convictions"

A new study published by Professors Jon Gould (l.) of American University and Richard Leo of the University of San Francisco, along with other researchers, examined factors that have contributed to wrongful convictions in criminal cases. The study compared cases in which "guilty" defendants were eventually exonerated to those in which defendants were not convicted in the first place. The researchers found a number of variables that separated wrongful convictions from so-called "near misses," including the criminal history of the defendant, withheld exculpatory evidence, errors with forensic evidence, and inadequate representation. With respect to the death penalty, the researchers found that states with higher use of the death penalty were more likely to produce wrongful convictions, even in cases that did not involve capital punishment. The authors offered a possible explanation for this effect, saying, "In a punitive legal culture, police and prosecutors may be more interested in obtaining a conviction at all costs (leading to greater Brady violations, etc.), and community pressure may encourage overly swift resolutions to cases involving serious crimes like rape and murder." The researchers recommended changes to the justice system to limit wrongful convictions, including better funding for indigent defense, earlier testing of forensic evidence, and subjecting forensic labs to peer review.

STUDIES: How Often Are Death Row Inmates Spared Because of Insanity?

In Ford v. Wainwright (1986), the U.S. Supreme Court banned the execution of inmates who were insane. In a dissenting opinion, Justice Rehnquist and Chief Justice Burger warned that the majority decision "offers an invitation to those who have nothing to lose...to advance entirely spurious claims of insanity." A new study has examined cases since 1986 in which death row inmates filed claims of mental incompetence and found that the deluge of spurious claims has not materialized. Of the 1,307 people the study considered "Ford-eligible," that is, those whose cases reached the point at which a Ford claim could be filed, only 6.6% (86) filed claims of incompetency. Of the cases decided on the merits, 22% of the Ford claims were successful, a high success rate when compared to other post-conviction claims in capital cases, implying non-frivolous claims were being filed. A large majority (62.6%) of inmates whose claims of insanity were decided in court had a well-documented history of mental illness, showing that raising an insanity claim was legitimate, even in many of the unsuccessful cases.

NEW VOICES: Pennsylvania Supreme Court Justice Criticizes Inadequate Representation in Capital Cases

In a lecture at the Widener University School of Law, Pennsylvania Supreme Court Justice Thomas G. Saylor criticized the poor state of death penalty representation in Pennsylvania. He offered numerous cases in which death sentences were overturned because attorneys had failed to present mitigating evidence to the jury. Quoting from a special concurrence he wrote on a capital case involving ineffective assistance of counsel, he said, "Of greatest concern, these sorts of exceptionally costly failures, particularly as manifested across the wider body of cases, diminish the State’s credibility in terms of its ability to administer capital punishment and tarnish the justice system, which is an essential part of such administration." He cited a study of Philadelphia's death-penalty representation system, which found that the system for appointing lawyers was "woefully inadequate," "completely inconsistent with how competent trial lawyers work," "punish[ed] counsel for handling these cases correctly," and unacceptably "increase[d] the risk of ineffective assistance of counsel" in individual cases. Saylor said, "Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. Poor systems of defense do not make economic sense."

LETHAL INJECTION: The Ongoing Controversy Over How People Are Executed

One of the nation's leading academic experts on the death penalty has written a new article describing how the controversy surrounding lethal injections has greatly intensified since the Supreme Court's ruling on the subject in 2008 (Baze v. Rees). Deborah Denno, a law professor at Fordham University, analyzed over 300 court decisions in the last five years citing Baze. She found there have been more changes in lethal injection protocols in that time than in the last 30 years, some of which have made matters worse. "The resulting protocols," she wrote, "differ from state to state, and even from one execution to the next within the same state," scarcely resembling those evaluated by the Supreme Court. As a result, "[T]this continuous tinkering often affects already troubled aspects of states’ lethal injection procedures, such as the paltry qualifications of executioners, the absence of medical experts, and the failure to account for difficulties injecting inmates whose drug-using histories diminish the availability of usable veins." She also addressed states' attempts to handle drug shortages, including changing drugs and turning to compounding pharmacies, whose recent record of contamination and resultant deaths have led to calls for greater regulatory oversight. She concluded, "Until death penalty states are willing to focus more on solutions than secrecy, lethal injection as a method of execution will remain mired in an endless cycle of difficulty and disorder."

COSTS: Death Penalty Cases in Colorado Take Six Times Longer Than Life Sentences

A new study of the cost of the death penalty in Colorado revealed that capital proceedings require six times more days in court and take much longer to resolve than life-without-parole (LWOP) cases. The study, published in the University of Denver Criminal Law Review, found that LWOP cases required an average of 24.5 days of in-court time, while the death-penalty cases required 147.6 days. The authors noted that selecting a jury in an LWOP case takes about a day and a half; in a capital case, jury selection averages 26 days. In measuring the comparative time it takes to go from charging a defendant to final sentencing, the study found that LWOP cases took an average of 526 days to complete; death cases took almost 4 calendar years longer--1,902 days. The study found that even when a death-penalty case ends in a plea agreement and a life sentence, the process takes a year and a half longer than an LWOP case with a trial. The authors, Justin Marceau (pictured) and Hollis Whitson, could find no evidence of deterrence from the state's death penalty and thus concluded, “Our findings are unequivocal: Colorado’s death penalty imposes tremendous costs on taxpayers and its benefits are, at best, speculative, and more likely, illusory.”

STUDIES: The Role of Implicit Racial Bias in the Death Penalty

A new study testing internal attitudes and stereotypes among potential jurors in six death penalty states may help to explain the racial disparities that persist in the application of capital punishment. Researchers Justin Levinson (l.), Robert Smith (r.), and Danielle Young tested 445 jury-eligible individuals and found they harbored two kinds of racial bias: they maintained racial stereotypes about Blacks and Whites and made associations between the race of an individual and the value of his or her life. Those studied tended to associate Whites more with "worth" and Blacks with "worthless." The study further found that death-qualified jurors held stronger racial biases than potential jurors who would be excluded from serving in death penalty cases.

Pages