Studies News and Developments: 2003

Kansas Study Concludses Death Penalty is Costly Policy
In its review of death penalty expenses, the State of Kansas concluded that capital cases are 70% more expensive than comparable non-death penalty cases. The study counted death penalty case costs through to execution and found that the median death penalty case costs $1.26 million. Non-death penalty cases were counted through to the end of incarceration and were found to have a median cost of $740,000. For death penalty cases, the pre-trial and trial level expenses were the most expensive part, 49% of the total cost. The costs of appeals were 29% of the total expense, and the incarceration and execution costs accounted for the remaining 22%. In comparison to non-death penalty cases, the following findings were revealed:

• The investigation costs for death-sentence cases were about 3 times greater than for non-death cases.
• The trial costs for death cases were about 16 times greater than for non-death cases ($508,000 for death case; $32,000 for non-death case).
• The appeal costs for death cases were 21 times greater.
• The costs of carrying out an execution (including death row incarceration) were about half the costs of carrying out a non-death sentence in a comparable case.
• Trials involving a death sentence averaged 34 days, including jury selection; non-death trials averaged about 9 days.

(Performance Audit Report: Costs Incurred for Death Penalty Cases: A K-GOAL Audit of the Department of Corrections, December 2003) Read DPICÕs Summary of the Kansas Cost Report. See Costs.

NEW RESOURCE: British Human Rights Report Addresses U.S. Death Penalty
The United Kingdom's Foreign & Commonwealth Office's Human Rights Annual Report 2003 includes a review of Britain's official actions to address concerns about the application of the death penalty in the United States. In addition to an outline of the U.K.'s reaction to significant death penalty developments in the U.S., the report highlights the sharp difference between British and U.S. capital punishment policies. It states:

The UK Government opposes the death penalty and its use on British nationals everywhere. The UK and the US share many of the same objectives for human rights and democracy around the world, but we fundamentally disagree over the use of the death penalty. The UK makes representations against the death penalty, at whatever stage we judge the most appropriate and effective, on behalf of British nationals on death row or those facing a possible death sentence, and in cases where we believe that the use of the death penalty falls short of UN minimum standards. (U.K. Foreign & Commonwealth Office, Human Rights Annual Report 2003).

Read the report. See International Death Penalty.

ACLU Report Finds Virginia's Death Penalty Riddled With Flaws, Recommends Reforms
In a report examining Virginia's death penalty system, the American Civil Liberties Union (ACLU) has urged the state to enact a moratorium on executions until its flawed capital punishment system is reformed. The report, "Broken Justice: The Death Penalty in Virginia," reviews issues such as the quality of defense counsel, prosecutorial misconduct, racial bias, innocence, and the execution of those with mental retardation and juvenile offenders. The findings, which were endorsed by a coalition of civic organizations in Virginia, led the ACLU to propose nine key reforms to improve systemic fairness. Among the recommendations were elimination of Virginia's 21-day rule, keeping detailed statistics on all potential capital crimes, and having the Virginia Supreme Court record and publish all examples of prosecutorial misconduct. (Associated Press, November 13, 2003). Read the report. See Virginia and Innocence.

Texas Report Finds Noncompliance With State Defense Laws
A review of death penalty defense policies in Texas has uncovered widespread noncompliance with state laws that require each region to adopt qualification standards for capital defense attorneys. Only two of the nine judicial regions in Texas have adopted the standards. A report on the findings has been published by the Equal Justice Center, a Texas organization that advocates for greater fairness in the justice system, and the Texas Defender Service, an organization dedicated to improving the quality of death penalty representation. (Houston Chronicle, October 29, 2003) Read the report. See DPIC's report With Justice for Few: The Growing Crisis in Death Penalty Representation.

Bureau of Justice Statistics Releases 2002 Report
The U.S. Bureau of Justice Statistics (BJS) released its yearly report on capital punishment on November 4, 2003. The figures reported were for the year 2002. (See also DPIC's Year End Report 2002). The BJS reported that death sentences in the U.S. have declined for four straight years, dropping by almost 50% since 1998. DPIC will release a report with 2003 figures in mid-December 2003. Read Capital Punishment, 2002.

Purposeful Discrimination in Capital Sentencing
"Purposeful Discrimination in Capital Sentencing" by David V. Baker examines the issue of race and capital sentencing in the context of three U.S. Supreme Court death penalty decisions - Furman v. Georgia, Gregg v. Georgia, and McCleskey v. Kemp. After his review of practical strategies to improve the fairness of the death penalty process, Baker concludes that court efforts have failed to eliminate race as a strong predictor in death sentencing. (5 Journal of Law & Social Challenges 189 (2003)) See Race.

Study Examines Politics and the Death Penalty
"Lethal Elections: Gubernatorial Politics and the Timing of Executions," a study by researchers Jeffrey Kubik and John Moran of Syracuse University, reveals that election-year political considerations may play a role in determining the timing of executions. Their research showed that states are approximately 25% more likely to conduct executions in gubernatorial election years than in other years. The researchers also found that elections have a larger effect on the probability that an African-American defendant will be executed in a given year than on the probability that a white defendant will be executed, and that the overall effect of elections is largest in the South. (46 The Journal of Law & Economics 1 (2003)). See DPIC's Report, "Killing for Votes."

New Death Penalty Moratorium Update from ABA
The most recent comprehensive report summarizing legislative, judicial, public policy, and other developments that have occurred since the American Bar Association's adoption of its death penalty moratorium resolution in February 1997 is now available. "Building Momentum: The American Bar Association Call for a Moratorium on Executions Takes Hold" covers activity from August 2001 to June 2003. It is the fourth edition of the ABA's moratorium activity update series. The complete report is available on the Web at http://www.abanet.org/moratorium/reportsandlaw.html. (ABA Death Penalty Moratorium Implementation Project, August 2003)

An Analysis of Death Penalty Cases in Georgia
A new report by Michael Mears of the Office of the Multi-County Public Defender provides a detailed examination of every death penalty trial in Georgia since the state passed its current death penalty statute in 1973. This resource contains a listing of death penalty cases by name of the defendant, name of the county, name of the judicial circuit, as well as the disposition of every death penalty case. It also provides a brief overview of the historic role Georgia has played in the Supreme Court's examination of the modern death penalty. (An Analysis of Death Penalty Cases in Georgia by Judicial Circuits 1973-2003, Office of Multi-County Public Defender, August 2003)

Researchers Find Prejudice Shapes Support for Death Penalty
In "Why Do White Americans Support the Death Penalty?," American University researchers Joe Soss, Laura Langbein, and Alan Metelko examined whether racial attitudes play a role in white support for the death penalty. The researchers found that white support for the death penalty in the United States has strong ties to anti-black prejudice, and in some geographic areas racial prejudice emerges as the strongest predictor of white death penalty support. Soss, Joe, et al.: "Why Do White Americans Support the Death Penalty? "; 65 The Journal of Politics 397 (2003). See Race

Amnesty International Report Examines Execution of Juvenile Offenders
A new report by Amnesty International, "The Exclusion of Child Offenders from the Death Penalty Under General International Law," examines the evidence supporting the conclusion that the use of the death penalty against juvenile offenders is prohibited under customary international law. The practice is already prohibited by the Inter-American Commission on Human Rights and the U.N. Convention on the Rights of the Child. William F. Schulz, Executive Director of Amnesty International USA, notes that the U.S. claims to be "the global leader in child protection" while simultaneously holding the record for the highest number of juvenile offender executions in the world. (Amnesty International Press Release, July 18, 2003). Read the Report. See Juveniles.

ACLU Report Calls for Halt to Executions
The ACLU Capital Punishment Project recently released "Three Decades Later: Why We Need A Temporary Halt on Executions," a report that comes just over 30 years after the Supreme Court's Furman v. Georgia decision that placed a temporary halt on executions because the death penalty was being applied in an arbitrary, discriminatory, and capricious manner. While the Supreme Court upheld state capital punishment statutes written after Furman in its 1976 Gregg v. Georgia decision, the report notes that questions of fairness remain. In its report, the ACLU calls for a temporary halt to executions to give states the chance to review these concerns, including issues such as wrongful convictions, inadequate representation, geographic disparity, and racial and socioeconomic bias. Read the report. See Supreme Court.

Report Reviews Prosecutorial Misconduct
"Harmful Error," a new report released by the The Center for Public Integrity, is the end product of an extensive two-year review of prosecutorial misconduct around the nation. The report notes that while many local prosecutors perform their difficult work admirably, inadvertent and intentional misconduct still permeates some district attorneys' offices. Among other pieces of valuable information contained in the report, "Harmful Error" documents cases in which prosecutorial misconduct played a role in convicting innocent defendants, many of whom were sentenced to death. (The Center for Public Integrity's Press Release, June 26, 2003). Read the report summary. Read the report. See also, Innocence.

Amnesty Report Finds Racial Injustice in Death Penalty
According to a report issued by Amnesty International, race continues to play a strong role in U.S. death penalty cases. In "U.S.: Death by Discrimination - The Continuing Role of Race in Capital Cases," Amnesty states that:

• Even though blacks and whites are murder victims in nearly equal numbers of crimes, 80% of people executed since the death penalty was reinstated have been executed for murders involving white victims.
• More than 20% of black defendants who have been executed were convicted by all-white juries.

The report also examines case law and international policies related to race and the death penalty. Read the report.

Juror Study Reveals Death Penalty Cases Not Meeting Constitutional Standards
This law review article by William J. Bowers and Wanda D. Foglia is based on the Capital Jury Project's research with those who have served as jurors in death penalty cases. Despite judicial reforms inspired by Furman v. Georgia and approved in Gregg v. Georgia, jurors are deciding who deserves the death penalty in violation of the ways the Supreme Court has held are Constitutionally required. The Capital Jury Project studied more than 1,200 jurors from 14 states. The study identified the following constitutional problems:

• Premature Decision Making - Interviews with jurors found that approximately 50% of those interviewed decided what the penalty should be before the sentencing phase of the trial. This is before they have heard penalty phase evidence or received the instructions on how to make the punishment decision.
• Bias in Jury Selection - Researchers found that jury selection methods resulted in disproportionately guilt-prone and death-prone juries.
• Failure to Understand Jury Instructions - The study found that 45% of jurors failed to understand that they were allowed to consider any mitigating evidence during the sentencing phase of the trial. In addition, two-thirds of jurors failed to realize that unanimity was not required for findings of mitigation.
• Erroneous Beliefs that Death is Required - 44% of jurors said that they believed the death penalty was required if the defendant's conduct was heinous, vile or depraved, and nearly 37% of respondents said that the death penalty was required if the defendant would be dangerous in the future. The Supreme Court has ruled that no state can require the death penalty solely on the grounds that specific aggravating circumstances have been established.
• Influence of Race - Researchers revealed that the chances of a death sentence in cases with a black defendant and white victim increase when there are five or more white males on the jury, and the chances decrease when there is at least one black male on the jury. These jurors have very different perspectives regarding lingering doubt, defendant remorsefulness, and defendant future dangerousness.
• Underestimating the Death Penalty Alternative - Early findings of the study found that most jurors grossly underestimated the amount of time a defendant would serve in prison if not sentenced to death, and that the sooner jurors believed (wrongly) a defendant would return to society if not given the death penalty, the more likely they were to vote for death.

The law review article concludes that, based on the research of the Capital Jury Project, the constitutionally mandated requirements established to guide juror discretion and to eliminate arbitrary sentencing are not working and the death penalty system remains broken. ("Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from Capital Sentencing," 39 Criminal Law Bulletin 51 (2003)) - (forthcoming). A list of the publications reporting other findings from the Capital Jury Project can be found at www.cjp.neu.edu. This list is periodically updated and includes the full text of some articles.

"Balancing the Scales" Examines Texas Moratorium - This video production examines the call for a moratorium on executions in Texas. The documentary examines issues such as defendant access to effective counsel, innocence, prosecutorial misconduct, the juvenile death penalty, and life without parole. Among those featured in the program are exonerated death row prisoners, murder victims' family members, and former Texas law enforcement officials.

NAACP Legal Defense Fund Report Finds Crisis in Mississippi - According to a new NAACP Legal Defense Fund report marking the 40th anniversary of Gideon v. Wainwright, poor defendants in Mississippi are receiving legal representation that falls far below constitutional standards. The report, "Assembly Line Justice," examines the effectiveness of indigent defense services across Mississippi and is based on interviews conducted with 150 current and former indigent defendants, as well as public defenders, district attorneys, judges, county supervisors, sheriffs, and community members. "All too often, in Mississippi, justice is only available to those who can pay for it," said Legal Defense Fund attorney Miriam Gohara. Gideon v. Wainwright was the Supreme Court decision that guaranteed a lawyer to defendants in criminal trials.

Pennsylvania Supreme Court's Committee Calls for Moratorium
A report released by the Pennsylvania Supreme Court's Committee on Racial and Gender Bias in the Justice System recommends that Governor Ed Rendell and state lawmakers enact a moratorium on the death penalty to provide an opportunity to further review the impact of race in death penalty sentences. "Empirical studies conducted in Pennsylvania to date demonstrate that, at least in some counties, race plays a major, if not overwhelming, role in the imposition of the death penalty," the report states. The Committee, created in 1999, also recommended passage of a Racial Justice Act, statewide standards for prosecutorial discretion, and statewide standards for both trial and appellate lawyers in capital cases. (Associated Press, March 4, 2003) Read the Committee's report.

• DPIC has drawn key excerpts from the death penalty chapter of the Committee's report. Click here for Excerpts page.

Spangenberg Report Highlights Legislative Developments
The latest edition of The Spangenberg Report is now available. This report highlights legislative changes, studies and important cases regarding indigent defense and capital punishment. (The Spangenberg Report, Volume VII, Issue 4, February 2003) For more information, contact The Spangenberg Group.

Southern Center Report, "If You Cannot Afford a Lawyer," Criticizes Indigent Defense in Georgia - A report issued by researchers at the Southern Center for Human Rights has found that poor people accused of crimes in Georgia continue to face the judicial process without - or with inadequate - legal representation. The report is based on three years of defendant interviews, courtroom observations and case research. Among the findings described in "If You Cannot Afford a Lawyer" are the following:

Despite the constitutional requirement for representation, in some municipal and state courts almost every accused Georgian is processed without an attorney.

Many adults and juveniles without an attorney plead guilty and are sentenced without the assistance of a lawyer.

Although the state's Supreme Court requires that lawyers be appointed within 72 hours of arrest and promptly meet with their clients, some people languish in Georgia jails for weeks or months before meeting with an attorney.

Even after a lawyer has been appointed, many people cannot communicate with their lawyers because the lawyers do not visit the jail, accept telephone calls from their clients, or reply to communications. In fact, many people meet their attorney for the first time in court and are advised minutes later to plead guilty before the lawyer has done any investigating, research or preparation.

(Southern Center for Human Rights Press Release, February 19, 2003) Read the press release.

ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases - The American Bar Association has adopted new standards for defense counsel in death penalty cases. The Guidelines, which were approved by the ABA in February 2003, state that defendants in capital cases should be represented by two or more qualified lawyers. In addition to the attorneys, the defense team should also include an investigator, a mitigation specialist and, in some instances, an expert to help with jury selection. The Guidelines state that at least one member of the team should be qualified to identify whether or not defendants suffer from mental or psychological disorders or impairments. "Establishing minimum standards . . . is essential to ensure effective assistance of counsel for all those charged with or convicted of capital crimes," said Robin Maher, director of the ABA's Death Penalty Representation Project.
A report issued by the ABA to supplement the Guidelines also recommends that an independent agency appoint attorneys in death penalty cases to ensure the integrity of the process. The ABA first adopted guidelines for lawyers handling capital cases in 1989. The Guidelines were updated in response to sweeping changes in federal laws that have dramatically limited the scope of death penalty appeals. (Los Angeles Times, February 18, 2003). See also the ABA's Death Penalty Representation Project.

Nevada Death Penalty Study and Recommendations - The recommendations recently released by the Nevada Legislative Commission's Subcommittee to Study the Death Penalty are now available on the Web and have been forwarded to the Legislative Commission for consideration during the lawmakers' 2003 session. The Subcommittee made 17 recommendations addressing: racial, gender and economic discrimination, aggravating and mitigating circumstances, competency and funding of counsel, juries and jury instruction, judicial functions and three-judge panels, rules of procedure and argument, DNA evidence, defendants with mental retardation, and the costs of capital punishment. (Death Penalty and Related DNA Testing, Bulletin No. 03-5, January 2003) Read the full report.

NACDL Commemorates Gideon v. Wainwright -
The National Association of Criminal Defense Lawyers has issued a special commemorative edition of its magazine, The Champion. The issue, titled "The Right to Counsel: Gideon v. Wainwright at 40," features articles about the Supreme Court decision ensuring that all accused persons are guaranteed representation. The publication also features a high school lesson plan to assist teachers in leading classroom discussions about the right to counsel. (The Champion, January/February 2003). Visit NACDL's Web page for additional links related to Gideon v. Wainwright.

Connecticut Commission Releases Results of State Death Penalty Study
The Connecticut Commission on the Death Penalty submitted its report, "Study of the Imposition of the Death Penalty in Connecticut," to the state General Assembly on January 8, 2003. The Commission was created in 2001 by the General Assembly to study the state's capital punishment system and report back with findings and recommendations. The report found racial and geographic disparities in the imposition of Connecticut's death penalty, and called for further study. Among the report's findings are:

• 86% of the crimes resulting in a death sentence involved a white victim
• 89% of the 166 capital prosecutions since the state reinstated the death penalty in 1973 came from just six judicial districts, and 40% came from Hartford alone.

The Commission's report provided legislative recommendations for improving the state's capital punishment system, including:

• an increase in hourly rates for public defenders in death penalty cases;
• reinstating proportionality review of each death sentence to ensure that it is not excessive or disproportionate to the sentence imposed in similar cases;
• video or audio taping of police interrogations and conducting "blind" lineups;
• mandating pre-trial determinations by capital trial judges to decide the reliability and admissibility of jailhouse informant testimony;
• preservation of biological evidence; and
• making DNA testing available to defendants.

(State of Connecticut Commission on the Death Penalty, Study Pursuant to Public Act No. 01-151 of the Imposition of the Death Penalty in Connecticut, January 8, 2003)

"The Death Penalty, Religion, and the Law: Is Our Legal System's Implementation of Capital Punishment Consistent with Judaism or Christianity?" - The New York Central Synagogue's day-long symposium contains expert discussion about religious texts and the death penalty, and it highlights related topics such as innocence, executing those with mental retardation or mental illness, the juvenile death penalty, and death penalty moratoriums. (4 Rutgers Journal of Law and Religion 1 (2003)).

Maryland Study Finds that Race and Geography Play Key Roles in Death Penalty - According to the findings of a Governor-commissioned death penalty study conducted by researchers at the University of Maryland, the state's death penalty system is tainted with racial bias, and geography plays a significant role in who faces a capital conviction. The study, one of the nation's most comprehensive official reviews on race and the death penalty, concluded that defendants are much more likely to be sentenced to death if they have killed a white person. See DPIC's Press Release. For more information about the study, see the Executive Summary and Complete Study (Released on January 7, 2003).