News

Missed Court Deadline Could Cost Mentally Retarded Man His Life

Though the U.S. Court of Appeals for the Fifth Circuit assumes that Texas death row inmate Marvin Lee Wilson is mentally retarded, it ruled that he cannot raise the issue in federal court because his defense attorney missed a filing deadline. The U.S. Supreme Court has banned the execution of those with mental retardation, but the Fifth Circuit stated that "however harsh the result may be" their hands are tied by deadlines established in the 1996 Antiterrorism and Effective Death Penalty Act.

Wilson is on death row for the 1992 kidnapping and murder of a police informant. At a hearing in 2004, Wilson's lawyers presented evidence that their client's IQ had been measured at 61, which meets the "70 or below" IQ threshold often used to identify those with mental retardation. The defense attorneys also presented testimony from a psychologist and a childhood friend, both of whom testified about Wilson's limited abilities. Despite that evidence, Judge Larry Gist of the state district court in Beaumont, Texas, ruled that Wilson had failed to prove that he was mentally retarded. Gist's decision was later affirmed by the Texas Court of Criminal Appeals. As Wilson's attorney prepared to present his client's case before the federal court, he said that he became tangled in the procedures and deadlines established in the 1996 federal law, an error that caused him to miss the federal filing deadline.

Noting that the U.S. Supreme Court similarly banned the execution of juvenile offenders, James Marcus of the Texas Defenser Service stated, "Executing someone who is categorically exempt from the death penalty would be new ground even for Texas. If Mr. Wilson had been 14 years old at the time of the crime but, in the eyes of the court, the issue was raised late, would it be O.K. for Texas to kill him? The question in this case is no different."

(New York Times, December 17, 2005).  See Mental Retardation.


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Birmingham News Reverses Its Position on the Death Penalty

Editorial series calls for end to capital punishment

The Birmingham News, a consistent supporter of capital punishment in the past, is now advocating that the state abandon the use of the death penalty. In an editorial series that was published November 6 - 11, 2005, the paper stated that there are serious flaws in the application of the death penalty in Alabama. It also said that the death penalty is inconsistent with the paper’s commitment to a culture of life.

According to the News, “[These editorials] will document over the next several days how the death penalty is applied arbitrarily in Alabama, how the system for defending those accused in capital cases is deficient and how the argument that capital punishment deters crime is open to question. These findings will be troubling on their own. When you consider
these uncertainties in the context of a culture of life . . . it becomes harder to defend a flawed system for deciding who lives and who dies.”

Alabama is a leading death penalty state. According to DPIC there have been 34 executions in Alabama since 1976, and 191 people are currently on death row. According to the News report, 75% of those sentenced to die in Alabama had killed a white person, even though the majority of the state's murder victims are black. Five people have been freed from Alabama's death row on the basis of innocence.

By examining individual cases, the News series highlights injustices in the death penalty system. Though it recommended abolishing Alabama's death penalty, the paper said that short of that, the state should enact a lengthy list of reforms to ensure that the death penalty is applied more fairly. The following are excerpts from the editorial series.

Alabama’s Error Rate in Capital Cases Far Exceeds the National Average

The News notes: “It should be no comfort to death penalty supporters that in the process leading to execution, mistakes are so common.” In particular, The News provides the following example:

  • “A massive study by Columbia University Law School professors in 2000 put the national error rate for capital cases at 68 percent while Alabama’s error rate exceeded 77 percent for capital convictions and death sentences.”

Flaws in System Put State at Risk for Executing an Innocent Person

The News asserts, “[T]hose who value life must demand at minimum a fair, impartial system designed to prevent the abhorrent possibility of the state killing an innocent person,” and provides evidence of exonerations throughout the country and in Alabama: Name of Exoneree
Year of Conviction
Year of Release
Walter McMillian
1988
1993
Randall Padgett
1992
1997
Bo Cochran
1976
1997
Gary Drinkard
1995
2001
Wesley Quick
1997
2003

  • “Since 1973, 121 inmates in 25 states have been released from Death Row”
  • Anthony Ray Hinton is currently on death row in Alabama. The News provides evidence of his possible innocence. To read the editorial on Anthony Ray Hinton click here.

The Death Penalty is Applied in a Haphazard Fashion

According to the News, “[W]e should be assured the ultimate punishment is inflicted fairly and accurately. That's not the case. If it were, the horror of a particular crime and the guilt of a particular defendant would determine whether a case ended with a sentence of death. Instead, the outcomes often hinge on the status of the accused, the quality of the defense, the race of the victim, even the location of the crime.” Arbitrary factors influence who is sentenced to death. The News claims “ those who get the ultimate punishment are not necessarily the worst of the worst.”

  • “The factors that determine which cases end with death are arbitrary. Socioeconomic status of defendants, quality of defense, race of victim.”

Race Could Play a Role in Who Gets the Ultimate Punishment

According to the News, race plays a part in who is sentenced to death. For instance:

  • “In 2003, for instance, blacks made up 60 percent of the homicide deaths. Of murder victims whose killers were sentenced to death over the past 30 years, more than 75 percent were white.”

Race of Homicide Victims
in Alabama 1994 - 2003

Race of Victim for
Defendants Sentenced to Death
in Alabama 1994 - 2003

Race of Victim for Defendants Executed
in Alabama Since 1976


Source: Birmingham News

Source: Birmingham News
Source: NAACP LDF Death Row USA


Discretion Leads to an Arbitrary Application of the Death Penalty

“Alabama has one of the nation's broadest capital punishment laws, allowing the death penalty for 18 varieties of murder. Despite the sizable number of murders that qualify, only a fraction end up with a death sentence.” The News emphasizes how discretion can impact the decision of who is sentenced to death. “Even biases that are buried can emerge in capital cases because humans make the call about who gets life and who gets death.” There are several ways that discretion comes into the process. For example:

Prosecutors Determines Who is Charged with Capital Murder


“Eighteen varieties of murder but not everyone who commits one of these crimes is condemned to die.” Prosecutors must first decide whether to charge a person with murder or with capital murder. Prosecutors determine whether or not a person should be prosecuted capitally in different ways.

  • “How fair can it be when a crime in one county is deemed worthy of the state’s worst punishment, while an almost identical crime in another county is not?”
  • “Jefferson County District Attorney David Barber says his philosophy is to charge any crime that meets any of the legal criteria as capital murder - and to seek the death penalty. ‘That way we won't get in a situation of picking and choosing,’ he said.”
  • “Shelby County's Robby Owens does pick and choose. He says he doesn't go after the death penalty unless the murder was calculated, there's no question of guilt and he believes the defendant isn't worth saving.”

Source: Birmingham News

Judicial Overrides
Judges with the Most Overrides

Braxton Kittrell,
Mobile - 7

Ferril McRae,
Mobile - 5

Randall Thomas,
Montgomery - 5

  • "Judges, too, play a role - more so in Alabama than in most other states. Here, judges can impose a death sentence even when a jury recommends against it.”
  • “Since 1982, 53 judges have handed down 83 death sentences against a jury's wishes--20 percent of the people on Death Row. More than 1 in 5 overrides were the work of just three judges.”

Lack of Adequate Legal Representation Brings the Reliability of the System into Question

“Alabama must ensure a decent legal defense if it is going to embrace and encourage death for those who commit the most serious crimes against society. Anything less,” the News contends, “unconscionably devalues life.” The facts demonstrating how lack of legal representation influences the reliability of death sentences are:

Alabama Has No Public Defender System

  • “One of the most dangerous flaws in Alabama's capital punishment system is the lack of a statewide public defender system. Instead, the state offers a hodgepodge, bare-bones way of providing lawyers to defend poor suspects.”

Inexperienced Attorneys Often Handle Capital Cases

  • “Court-appointed lawyers often have little experience in capital cases, and limits on pay discourage highly qualified lawyers from taking cases.”
  • “Conversely, a district attorney's office, which prosecutes individuals charged with capital crimes, may have highly experienced attorneys who deal with homicide trials regularly.”

Attorney Pay Rates Are Low

  • “The great majority of today's death row inmates were convicted before 2000. Yet until 1999, court-appointed lawyers were paid $20 an hour for out-of-court work and $40 an hour for in-court work; until 2000, they got $30 an hour out of court and $50 an hour in court. Also until 2000, the court-appointed lawyers were capped at $1,000 for out-of-court fees, meaning they were limited in the pretrial hours they could work on a case, unless they worked for free.”

Attorneys Are Not Guaranteed for Appeals

  • “In a system like Alabama's that does not pay for or guarantee a high-quality, aggressive defense at trial for each death penalty case, it's even more important that the trial get a close examination on appeal. But the death penalty appeals process is stacked heavily against somebody fighting for his life.”
  • Alabama provides no “system of assuring lawyers for defendants for the crucial second and third round of appeals where miscarriages of justice are most often uncovered.”

The Majority of Alabamians Question Fairness of Death Penalty—Majority Favor Moratorium

  • “While more than 7 in 10 favor capital punishment, about 57 percent of those surveyed say they favor a moratorium until questions over the way the death penalty is applied can be worked out.”
  • “Only 47 percent believe the death penalty is applied fairly in Alabama, according to the poll.”
  • “80 percent of those polled think the state could execute someone who is not guilty.”

How do you feel about the use of the death penalty in Alabama?

Do you believe the death penalty is applied fairly in Alabama regardless of gender, race or income?

Do you believe an innocent person may be convicted and executed?







Source: Birmingham News

Source: Birmingham News
Source: Birmingham News

The News Offers Recommendations for Improving the Reliability of the Death Penalty in Alabama


According to the News: “The ultimate punishment is inflicted, at best, haphazardly. The outcome of capital murder trials can be affected by arbitrary factors such as the status of the accused, the race of the victim and more than a little luck. One of the most crucial factors is the quality of legal representation; Alabama doesn't provide for an adequate defense, much less the vigorous defense a life-or-death case demands. That raises the specter of the worst failure the state's criminal justice system could ever experience: the execution of an innocent man or woman.” Until the state abandons its use of the death penalty, the News suggests the following reforms:

Commission a Study on Capital Punishment in Alabama

  • “The people of Alabama - in the form of their state government - should conduct a thorough review of their own.”

Impose a Moratorium on the Death Penalty

  • “The Legislature, in the session that begins in January, quickly should pass a law suspending the death penalty while a commission examines problems with Alabama's system of capital punishment.”

Stop Jury Overrides

  • “Take away the power of circuit judges to impose death sentences when a jury recommends a sentence of life in prison without parole. Alabama is one of only a handful of states that grant judges this power and the only state where it is used liberally. Political pressure can be (and has been) used to urge judges, who are elected, to resort to the override power. The state should remove that temptation.”

Establish a Way to Review the Prosecutor’s Decision to Seek Death

  • “Establish a uniform system with state oversight to guide prosecutors in deciding when to seek the death penalty. The system should include a process of review so that defendants can challenge a prosecutor's decision on the front end.”

Require Full Disclosure by Prosecutors in Capital Cases

  • “Require prosecutors in a capital case to turn over every bit of evidence - helpful or not - to the defense. They already are required to turn over helpful information; but sometimes, disputes occur over whether a particular piece of information would aid the defense.”

Establish Safeguards for Unreliable Testimony

  • “Put safeguards in place to address chronic problems that crop up in death penalty cases with regard to eyewitness testimony, the use of jailhouse snitches and police interrogation procedures.”

Decrease Capital Offenses

  • “Reduce the number of crimes that qualify for a death sentence.”

Define Mental Retardation

  • “Set up reasonable guidelines about what constitutes mental retardation in keeping with the U.S. Supreme Court decision striking down executions of the retarded.”

Pass Law to Ban Execution of Juveniles

  • “Pass laws outlawing the execution of people for crimes they committed as juveniles in keeping with another U.S. Supreme Court ruling.”

Preserve Evidence in Capital Cases

  • “Make sure evidence in capital cases is preserved to allow for DNA testing where it could determine guilt or innocence, and ease the way for the testing to take place.”

Make Reforms Retroactive

  • “Devise a system to review death penalty cases prosecuted before these reforms (while lawyer pay was deplorably low) to try to ensure no innocent person is executed.”

Examine Proportionality of Capital Prosecutions and Sentences

  • “Study the correlation between race and the death penalty, and make changes to the law or in practices to try to ensure that the ultimate punishment is about the severity of the crime, not the skin color of the defendant and victim.”

Ban the Execution of Persons with Mental Illness

  • “Protect people with serious mental illness from being executed for crimes they committed while psychotic.”

Despite Reforms, The News Says System May Not Be Fixed

  • “Taken together, these proposals are not an inexpensive proposition. The state already spends $40 million a year paying court-appointed lawyers to defend poor suspects. A statewide indigent defense system likely would cost much more. That means it's even less likely the Legislature, which every year patches together an operating budget with smoke and mirrors, will undertake these reforms.”
  • Even if all these steps were taken, they would not be enough to satisfy the News' editorial board that the death penalty is appropriate for Alabama.


Read the Full Text of the Birmingham News' Editorials


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Birmingham News Criticizes Costly, Arbitrary Death Penalty

A recent editorial in The Birmingham News criticized the costly and unfair nature of Alabama's capital punishment system. It also called on state legislators to, at a minimum, take steps that would limit the number of crimes eligible for the death penalty. The newspaper, which recently wrote a series of editorials changing its long-standing support for capital punishment and calling on the state to abandon the use of the death penalty, noted:

More varieties of murder qualify for the death penalty in Alabama than in most states, and some prosecutors charge every crime that qualifies as a capital crime.

That may sound like a good thing - a way to really crack down on violent crime and stick it to criminals. But the people who are really getting stuck are Alabama taxpayers.

That's because capital cases cost more than those that don't have a chance of ending in the death penalty, as demonstrated in a story on Sunday in The News.

In fiscal 2005, the state's bill for capital defense was on average $20,416 - a small sum, really, but almost 16 times as much as the $1,300 average indigent defense in class-A felony cases. Why? When a defendant's life is at stake, the law requires two defense lawyers, an investigator and a specialist to look for mitigating factors that could make life without parole a more appropriate sentence than death.

The additional expenses are entirely justified, but the numbers add up: Since 2000, Alabama taxpayers have paid more than $14 million to defend people charged with capital murder.

Prosecutors say they're paid the same whether they're pursuing death penalty cases or not. But they don't dispute that death penalty cases usually take more of their time. That means they invest more of their office resources in capital cases than in noncapital cases.

But do the time and money translate to more death sentences? No.

Since 1990, 1,965 capital murder indictments have been brought and resolved in Alabama. Of the total cases, only 33% ended with a capital conviction and only 11% ended with a death sentence. In Jefferson County, the percentages are even worse. Of 716 resolved capital cases, just 25% ended with conviction and only 5% a death sentence.

Translation: Taxpayers are spending tremendous sums of money on capital cases that judges and juries do not believe merit death sentences.

Granted, Jefferson County District Attorney David Barber makes a valid case for bringing capital charges if the crime fits any of the death-penalty criteria. Prosecutors who pick and choose which crimes are worthy of death have been accused of (and have been guilty of) making arbitrary and unfair distinctions.

The problem is, Alabama's death penalty law also makes arbitrary and unfair distinctions. In one of the silliest provisions, simply shooting someone in a car or from a car is a capital crime. Shooting the same person on the street is not.

Of course, The News editorial board believes the state should abolish capital punishment altogether because of our views on the sanctity of life and our concerns that Alabama's death penalty is not foolproof or fair. But even those who endorse capital punishment have an interest in making sure the system is as cost-effective and rational as possible.

The Legislature could help by trimming the list of murders that qualify for a death sentence. A broader, uniform process to decide when prosecutors can pursue a capital charge would also help.

If the state is going to have a death penalty, at the very least it should be reasonably applied. To do otherwise is not only unfair - it's expensive.

(The Birmingham News, December 7, 2005) See Editorials, Arbitrariness and Costs. Read excerpts from The Birmingham News editorials calling on Alabama to abandon the death penalty.


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North Carolina Law Results in Sharp Drop in Death Sentences

According to the North Carolina News & Record, death sentences in the state have significantly declined since the 2001 enactment of legislation that allows defendants to plead guilty to first-degree murder and receive a sentence of life without parole rather than go to trial and risk the death penalty. Juries are also returning fewer death sentences. The paper argues that the emergence of the life-without-parole alternative should result in a reconsideration of the sentences of those already on death row:


It's unfair to make one person serve more time in prison than another if both committed the same crime.

That idea drove a recent change in state law that encourages the parole commission to release more inmates who were locked up before sentencing guidelines changed in 1994. A prisoner serving 20 years for an offense that now requires only a 10-year penalty might deserve strong consideration for parole. It's a simple matter of fairness.

Too bad legislators didn't apply the same principle to inmates on death row. Since a 2001 change in the law, the number of death sentences imposed by North Carolina courts has fallen dramatically.

Under the new law, defendants can plead guilty to a charge of first-degree murder and receive a sentence of life without parole rather than go to trial and risk the death penalty. Many prosecutors agree to that outcome. It saves overworked district attorneys' staffs the time and expense of a trial, spares the state a lengthy appeals process and often relieves victims' families of the ordeal they endure when the facts of the crime are rehashed as the killer's execution approaches.

In addition, with public attitudes about capital punishment beginning to shift, many jurors are more comfortable voting for a life sentence rather than death as long as they know there's no possibility of parole.

The numbers tell the story: In 1999, 24 people were sent to North Carolina's death row; in 2000, 17; in 2001, 15. Then, after the new law went into effect, seven in 2002; six in 2003, four in 2004; and six so far this year.

Altogether, 156 of the 177 men and women on death row have been there since 2001 or earlier. Whether most North Carolinians still approve of the death penalty or not, North Carolina juries are slowly eliminating its use.

That invites an obvious conclusion: Death row is largely populated by inmates who, if tried again by today's legal standards, would not be sentenced to death. Yet many of them will be executed. The exceptions may win new trials for other legal reasons, be granted a commutation of sentence or perhaps die of natural causes.

These people on death row were left out when state legislators this year tried to insert a measure of fairness into the criminal-justice system. Lawmakers said to thousands of prisoners, "You shouldn't be held longer for your crime than you would be if you had committed the same offense after 1994." But to the inmates facing the most severe punishment, they said nothing.

Maybe it's not politically smart to give murderers a break. The question, however, isn't whether murderers should go free. Of course they shouldn't. But, if juries today are more inclined to sentence killers to life in prison without parole, it's only fair for legislators to consider the same leniency for those already on death row.


(News & Record, November 7, 2005; emphasis added). See Life Without Parole and Editorials.

 


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Georgia Supreme Court Denounces Official Misconduct, Orders New Trial

In a ruling that criticized the state for concealing a $500 payoff to a key state witness in a 1997 death penalty case, the Georgia Supreme Court unanimously upheld a lower court decision ordering a new trial for Willie Palmer.

During Palmer's original trial, his attorneys had asked prosecutors to disclose any deals with state witnesses. At that time, they were only told about a plea bargain with Palmer's nephew, who had testified during the trial that he assisted his uncle in the killings of Palmer's wife and her daughter. This testimony was later corroborated by Randy Waltower, a paid drug informant whose payoff was not disclosed. After Palmer's conviction was upheld on direct appeal, his new lawyers again sought details of any other deals or payoffs made in the case. The state continued to resist all efforts to reveal confidential informant files in the case, including four documents that showed the state paid $500 to Waltower five days after Palmer's arrest. In spring 2005,  a Superior Court judge requested the files outlining the Waltower payoff and determined that the state intentionally hid the payoff from Palmer's defense team "in defiance of its legal and ethical duties." This ruling prompted Georgia investigators to change their proceedures by ordering investigators to write down on case files whether confidential informants were used and paid so prosecutors will know it.

The Georgia Supreme Court noted: "We cannot countenance the deliberate suppression by the state of a payment to a key witness, and its attendant corruption of the truth-seeking process, in any case, and especially in a death-penalty case." The Court said that the state's decision to conceal the payoff violates the primary tenet of the 1973 U.S. Supreme Court decision Brady v. Maryland, which stated, "Society wins not only when the guilty are convicted but when criminal trials are fair." The state may retry Palmer for the murders. (Atlanta Journal-Constitution, November 7, 2005).  See Innocence.

DPIC's latest report, Blind Justice: Juries Deciding Life and Death With Only Half the Truth, addresses the scope of official misconduct in capital cases. Since 2000, 37 people have been released from death row.  In 23 (62%) of these cases, state misconduct played a significant role in the faulty original trials. Read the report.


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ACLU Report Finds Flaws in Alabama's Death Penalty

According to a new report released by the American Civil Liberties Union (ACLU), structural and procedural flaws in Alabama’s criminal justice system stack the deck against fair trials and appropriate sentencing for those facing the death penalty. The report, Broken Justice: The Death Penalty in Alabama, details unfair and discriminatory practices in the state’s administration of the death penalty. It concentrates on six major areas of concern: inadequate defense, prosecutorial misconduct, judicial override of jury recommendations, execution of the mentally retarded, racial discrimination and geographic disparities. Among the report's key findings are the following:

  • Lack of a statewide public defender system in Alabama creates wide disparities among circuits in their standards of indigent defense, or representation of defendants who can’t afford private legal counsel.
  • Alabama is among the few states that still allow judges in capital trials to override jury recommendations for lesser sentences and impose the death penalty.
  • Eighty-one percent of those executed in Alabama since 1976 were convicted of killing white people, yet only 35 percent of all murders in the state involve white victims.
  • Between 1973 and 2003, nineteen Alabama death penalty cases were reversed because of prosecutorial misconduct.
  • The 2002 U.S. Supreme Court decision prohibiting execution of mentally retarded offenders left it to the states to define mental retardation. In failing to issue its own definition, Alabama places mentally retarded inmates at risk of unconstitutional execution.

Based on its findings, the ACLU has recommended at temporary halt to executions in Alabama to allow a thorough review of the state's capital punishment system. A July 2005 poll by the Capital Survey Research Center found that 57 percent of Alabamians would support such a moratorium on executions.

Alabama has the sixth -highest execution rate and the sixth-highest death-sentencing rate in the nation. There is no statewide public defender system, and 95 percent of those on death row are unable to afford representation. Five innocent people have been released from Alabama's death row since 1976.

(ACLU Press Release, "New Report Finds Fatal Flaws in Alabama's Death Penalty," October 20, 2005). Read the report. See Representation, Race, Prosecutorial MisconductArbitrariness, and Innocence.


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NEW VOICES: Federal Judge Says Death Penalty Is "Beyond Repair"

In a dissenting opinion filed in the capital case of Moore v. Parker, Judge Boyce Martin of the U.S. Court of Appeals for the Sixth Circuit wrote that "the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair." Among his many criticisms of the way capital punishment is applied in the U.S., Martin specifically noted his concerns about the issues of innocence, inadequate defense counsel, and the overall arbitrariness of the system. He wrote:

I have been a judge on this Court for more than twenty-five years. In that time I have seen many death penalty cases and I have applied the law as instructed by the Supreme Court and I will continue to do so for as long as I remain on this Court. This my oath requires. After all these years, however, only one conclusion is possible: the death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair.

The flaws are numerous and the commentators have documented them well. There have been numerous death row exonerations. In fact, in some states the pace of exonerations competes with the pace of executions. See e.g., Death Penalty Information Center Searchable Database, http://www.deathpenaltyinfo.org/executions.php, last accessed September 6, 2005 (indicating that since 2000, Louisiana has executed two individuals while five individuals have been exonerated from death row). Blatant racial prejudice continues to infest the system. See, e.g. Miller-El v. Dretke, 125 S. Ct. 2317 (2005). Peremptory challenges tilt the balance from the outset in favor of death. Id. at 2340 (Breyer, J., concurring). The election of state judges creates another subtle bias toward death. Justice John Paul Stevens, Address to the American Bar Association Thurgood Marshall Awards Dinner Honoring Abner Mikva (Aug. 6, 2005), available at http://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html. Crime labs are unreliable, see Ralph Blumenthal, Officials Ignore Houston Lab’s Troubles, Report Finds, N.Y. TIMES, A10 (July 1, 2005); The Innocence Project, DNA News (documenting suspension of DNA testing in Houston, Texas as a result of lab incompetence); see also House v. Bell, 386 F.3d 668 (6th Cir. 2004), cert. granted 125 S. Ct. 2991 (2005), witness identifications continue to prove faulty, and false testimony and false confessions plague the system, see e.g., The Innocence Project, http://www.innocenceproject.org/case/display_profile.php?id=07 (case of Rolando Cruz). The death penalty has proved to be an ineffective cure for society’s ills, public support continues to erode, and we share the dubious distinction of being the only western democracy that continues to put its own citizens to death. Of particular relevance to this case, the bad lawyering and incomprehensible arbitrariness that permeate the system should disgust any person concerned with the fair administration of criminal justice. Many of these flaws are rightfully brought to the attention of the nation’s political leaders. Notwithstanding, many of these flaws are legally relevant to the Eighth Amendment question — namely, under “evolving standards of decency,” Trop v. Dulles, 356 U.S. 86, 100-01 (1958) (plurality opinion), “whether people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.” Furman v. Georgia, 408 U.S. 238, 360 (1972) (Marshall, J., concurring).

An even better argument, in my opinion, is that the death penalty violates the Fourteenth Amendment because it is so transparently arbitrary that the system in its entirety fails to satisfy due process. More than ten years have passed since Justice Blackmun’s statements in Callins v. Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting from denial of certiorari), regarding the failure of the death penalty system due to the absence of consistency, rationality, and fairness in its administration. It has only gotten worse. Justice Stevens’s recent address to the American Bar Association thoughtfully makes the case that there are “special risks of unfairness” in the administration of the death penalty. Justice John Paul Stevens, Address to the American Bar Association Thurgood Marshall Awards Dinner Honoring Abner Mikva (Aug. 6, 2005) (“[W]ith the benefit of DNA evidence, we have learned that a substantial number of death sentences have been imposed erroneously. That evidence is profoundly significant - not only because of its relevance to the debate about the wisdom of continuing to administer capital punishment, but also because it indicates that there must be serious flaws in our administration of criminal justice . . . My review of many trial records during recent years has, however, persuaded me that there are other features of death penalty litigation [aside from ineffective assistance of counsel] that create special risks of unfairness.”).

As noted above, while the system suffers from many flaws, much of the arbitrary imposition of the death penalty stems from the exceedingly distressing fact that during all my years on the bench, the quality of lawyering that capital defendants receive has not substantially improved. In many cases it has deteriorated. In fact, one of the most clear examples of the arbitrariness of the death penalty is the common knowledge that those defendants with decent lawyers rarely get sentenced to death. Death has more to do with extra-judicial factors like race and socio-economic status than with whether death is deserved. A system, whose basic justification is the interest in retribution and general deterrence, is not served when guided by such irrelevant factors. Nor should a system of life and death hinge on the proficiency of counsel.

I have no delusions of grandeur and I know my place in the judiciary. My oath requires me to apply the law as interpreted by the Supreme Court of the United States. I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty. But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce.

(Moore v. Parker, No. 03-6105 (U.S. Court of Appeals for the Sixth Circuit, October 4, 2005) (Martin, J., dissenting) (emphasis added)). See Arbitrariness and New Voices.


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Research Links Historical Lynchings to Modern Murder Rates and Capital Punishment

Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences.  In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.

In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review.

(Washington Post, September 25, 2005, Outlook section, p.B5). See Arbitrariness and Race.


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Study Finds Race of Victim, Geography Are Key Factors In California Death Sentencing

According to a new study to be published in the Santa Clara Law Review, a defandant in California is more likely to be sentenced to death for killing a white person than for murdering a person of any other race, despite there being more black and Hispanic murder victims in the state. The research also shows that geography plays a key role in whether the death penalty will be sought in a particular case.

The study implies that the loss of white lives is considered more important in the justice system than the loss of black or Latino lives.  Among the findings of the study were:

  • Those who kill non-Latino whites are over three times more likely to be sentenced to die as those who kill African-Americans.
  • Those who kill non-Latino whites are over four times more likely to be sentenced to die as those who kill Latinos.
  • A person convicted of the same crime is more than three times more likely to be
    sentenced to die simply because the crime was committed in a predominantly
    white, rural community rather than a diverse, urban area.

"To put it bluntly, there's apparently different values being placed on victims from different racial and ethnic groups. That's what the pattern would suggest," said Northeastern University criminal justice professor Glenn Pierce, a co-author of the study. Santa Clara University professor Ellen Kreitzberg added, "This study force[s] the people in California to confront the unfairness of how the death penalty is applied in this state. The decision of who will live and who will die in California turns on arbitrary and unlawful factors such as the race and ethnicity of the murder victim or the location where the murder was committed."

(Associated Press, September 22, 2005; ACLU of Northern Calif. Press Release, Sept. 21, 2005; G. Pierce & M. Radelet, "The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999," 46 Santa Clara Law Review ___ (forthcoming)).  See Race and Arbitrariness.


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North Carolina Bar Charges Prosecutors With Serious Misconduct in Death Case

The North Carolina State Bar has charged two former Union County prosecutors with lying, cheating, and withholding evidence in a 1996 murder case that ended in a death sentence. The charges state that former Union County District Attorney Kenneth Honeycutt and his assistant, Scott Brewer, each committed 23 violations of the rules that govern lawyers during their 1996 prosecution of Jonathan Hoffman, who was sentenced to death for robbery and murder. The State Bar says that Honeycutt and Brewer lied to the trial judge, the jury and the defense lawyers and knowingly used false evidence during Hoffman's capital trial. Evidence indicates that the two prosecutors hid a deal to reward the state's key witness - Hoffman's cousin who was facing prison sentences in South Carolina and in federal prison - with immunity from state and federal prosecutions, money, and a reduction in his federal sentence. Under standards established by the U.S. Supreme Court, prosecutors must disclose any concessions or immunity they give to witnesses. Last year, Hoffman won a new trial after more than seven years on death row. He remains in jail awaiting his new trial.

State Bar charges of prosecutorial misconduct are rare in North Carolina, and only four prosecutors have been disciplined in the past 10 years. If they are found guilty in a hearing before the bar, Honeycutt and Brewer's punishment could range from a written reprimand to the loss of their law licenses. After an unsuccessful run for the state House of Representatives, Honeycutt retired from his job as Union County's District Attorney. Brewer is now a District Court judge in Rockingham, North Carolina.

(News & Observer, September 7, 2005).  See DPIC's report, "Killing Justice." See also Prosecutorial Misconduct.

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