Studies News and Developments: 2002

"Capital Punishment 2001" - The Bureau of Justice Statistics released its annual report on the death penalty with statistics from the previous year. The report contained a number of interesting findings:

• The number of people sentenced to death in 2001 was 155, the smallest number since 1979, and an almost 50% drop from the average number of death sentences in 1994-99.
• Between 1973 and 2001, Texas sentenced the most people to death (889), followed by Florida (863) and California (779).
• The number of people under sentence of death declined in 2001, the first decrease in 25 years.
• The time between sentencing and execution for those executed in 2001 was 11 years and 10 months, slightly longer than for those executed in 2000. Overall, the average time between sentencing and execution for those executed between 1977 and 2001 was 10 years and 3 months.

False Confessions Investigation
A recent investigation by The Miami Herald found that 38 false or questionable confessions have been discredited in just one Florida county since 1990. The confessions were either thrown out by Broward County courts, rejected by juries, or abandoned by police or prosecutors. The Herald's study found examples of illegal interrogation, coercive questioning, and flawed fact-checking. At least six confessed "killers" who were charged with murder were later determined to be innocent. Among the false confessions listed was that of Frank Lee Smith who spent 14 years on Florida's death row. DNA evidence eventually cleared him of the charges, but he died of cancer six months before his exoneration. (Miami Herald, Dec. 22, 2002).

A new report by the Texas Defender Service, "Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals," examines the quality of representation for death row inmates in Texas post-conviction proceedings. The study examined state habeas appeals of nearly every Texas death row inmate since 1995 and found that many of these individuals were represented by unqualified attorneys or by attorneys who failed to file a meaningful appeal. The inmates studied had a one in three chance of being executed without their cases being adequately investigated or argued by a competent appeals attorney. The report also examines the role of the Texas Court of Criminal Appeals in appointing inadequate attorneys. "The state habeas process is where the innocent or those undeserving of the death penalty are discovered," said Jim Marcus, Executive Director of the Texas Defender Service. "Thus, short-circuiting these proceedings with lawyers who fail to do meaningful work for their clients undermines the integrity and reliability of the system." (Texas Defender Service Press Release, December 3, 2002 and New York Times, December 3, 2002).

Judicature Journal Examines Wrongful Convictions - The September-October 2002 edition of Judicature, the Journal of the American Judicature Society, provides an extensive examination of wrongful convictions and the systemic flaws that could lead to the execution of an innocent person. The resource contains articles written by a number of national death penalty experts, law enforcement officials, and legal scholars. Among the contributors are James S. Liebman, Michael L. Radelet, Lawrence C. Marshall, C. Ronald Huff, Barry C. Scheck, Hugo Adam Bedau, Robert K. Olson, Peter Loge, Ronald Earle, Carl Bryan Case, Jr., Thomas P. Sullivan, Gerald Kogan, and Allan D. Sobel. Read the journal summary.

Medical Ethics and Physician Participation in Executions - In "Lethal Injection: A Stain on the Face of Medicine," Jonathan I. Groner, trauma medical director at the Department of Surgery, Children's Hospital in Columbus, OH, considers the ethics of medical professionals participating in lethal injections despite the opposition of their professional organizations. (325 British Medical Journal 1026 (Nov. 2, 2002)).

"Indecent and internationally illegal: The death penalty against child offenders," Amnesty International examines the juvenile death penalty in the United States. The report looks at the U.S. Supreme Court's Atkins v. Virginia decision exempting prisoners with mental retardation from the death penalty and applies its reasoning to the issue of juvenile offenders. The report also provides a broad overview of the history of the juvenile death penalty through case reviews, international human rights policies, and recent developments around the world. See also, Juvenile Death Penalty.

The Death Penalty and Human Rights: U.S. Death Penalty and International Law. DPIC's Executive Director, Richard Dieter, recently delivered this paper on human rights and the death penalty at Oxford University in England. The paper was presented at the Oxford Round Table on human and civil rights before an international gathering of human rights experts. The paper traces the development of capital punishment as a human rights issue, and it examines recent international challenges to the death penalty in the United States.

"Dignity Denied: The Experience of Murder Victims' Family Members Who Oppose the Death Penalty" A report released by Murder Victims' Families for Reconciliation provides an account of the experiences of murder victims' family members who oppose capital punishment and steps that can be taken to protect these individuals from discrimination based on this opposition. "Dignity Denied" challenges lawmakers, the federal government's Office of Victims of Crime, and leaders within the victims' services community to address past and current discrimination and commit to equitable treatment of survivors of homicide victims. Specifically, the report offers model legislation and recommends that victims' rights laws be amended to ban unequal treatment based upon a victim's position on the death penalty. It also states that victims' services should be administered independently, not as part of the prosecutor's office, and that leaders in the victims' services community should develop protocols for serving victims' families who oppose the death penalty.

"Deadly Decisions: How do jurors decide who should live and who should die" is a new documentary from American RadioWorks, now airing on public radio stations around the nation and available on the Internet. The program, created by independent producer and veteran journalist Alan Berlow, explores cases where death sentences were handed down, even though jurors were confused or racially biased. In recent years, a sizable number of former jurors in capital cases have stepped forward to assert that they did not fully understand their responsibilities. Others have said they were confused by the instructions given to them by a judge or failed to understand basic concepts such as mitigation. In a handful of prominent cases, jurors have acknowledged sentencing defendants to death as an "insurance policy" because they were unaware that life without parole was an alternative.

In its most recent report, "Drug Companies and Their Role in Aiding Executions," the National Coalition to Abolish the Death Penalty calls upon the nation's manufacturers and distributors of lethal injection drugs to take steps to prevent their drugs from being used in executions. The report contains 10 recommendations that manufacturers of lethal injection drugs should implement to make sure that their products are not used in executions. In addition to tracing the history of lethal injection drugs in executions, the report examines what can go wrong during these executions, lists the companies that produce lethal injection drugs, and discusses medical guidelines regarding doctor participation in executions. See NCADP's Press Release.

ABA's Juvenile Justice Center Publishes Two Death Penalty Reports - The American Bar Association's Juvenile Justice Center has published two new death penalty reports. The first report, "The Juvenile Death Penalty in the United States," provides an overview of the topic and outlines recent developments in the United States and internationally. The ABA's second report, "Clemency and Consequences: State governors and the impact of granting clemency to death row inmates," examines clemency petitions during the past decade and discusses the perceived political consequences of granting pardons. Both publications are available by contacting the ABA's Juvenile Justice Center at (202) 662-1506.

"Issues of Consistency in the Federal Death Penalty: A Roundtable Discussion on the Role of the U.S. Attorney," a Vera Institute of Justice report by Robin Campbell, is now available on the Internet. The report explores the federal death penalty through the eyes of 11 U.S. Attorneys from across the nation who serve as the first line of decision-makers in the process that identifies which cases may be subject to the federal death penalty. This report examines the challenges prosecutors face in reconciling local conditions against nationwide laws, the issues of racial and ethnic disparity in the federal death penalty, and what role U.S. Attorneys can play in addressing these concerns. See also, Federal Death Penalty.

A recent issue of the Ohio State Law Review, "Addressing Capital Punishment Through Statutory Reform," (Vol. 63, 2002) includes articles on topics such as methods of execution, legislative developments and the death penalty, and reform efforts that are designed to eliminate unjust executions. Among the writers featured in the Law Review are death penalty experts James Liebman, Deborah Denno, Victor Streib, Austin Sarat, Carol and Jordan Steiker, and Ronald Tabak.

Reform Judaism Magazine Addresses Capital Punishment - The 2002 edition of Reform Judaism Magazine examines the question of whether or not Judaism condones capital punishment. An article by Rabbi Dan Polish, Director of the Joint Commission on Social Action of Reform Judaism, explores the faith's historical reasoning for opposing capital punishment. Rabbi Polish notes, "The thrust of the Jewish tradition and the historical positions of the Reform Movement impel us to oppose capital punishment in principle and in practice. A person wrongfully flogged for robbery can heal. A person improperly imprisoned for murder can be exonerated and set free. But someone put to death for a crime he/she did not commit can never be redeemed." (Reform Judaism Magazine, Summer 2002.) Read the article.

Study Finds Serious Problems With California's Death Penalty - In a comprehensive review of hundreds of death penalty cases in California, the San Jose Mercury News found that the state's capital punishment system has many of the same problems that have created concern about the death penalty across the nation. The News examined 72 cases reversed by state and federal courts since 1987 and 150 appeals now pending in the federal courts. In a series of articles, the News released its findings, including:

• California typically spends much more money on capital cases than most states, but the dozens of death sentences reversed since 1987 involved trials marred by the same types of problems found in states known for spending less on capital cases, such as Texas and Alabama. These include lawyers who put on perfunctory defenses, prosecutors who concealed evidence, and mistake-prone trial judges.
• California has not taken corrective actions that other states have. It has not set minimum statewide standards for the qualifications of defense lawyers appointed to death-penalty trials. The result has been an inconsistent county-by-county system of appointing lawyers.
• Defendants who do win a reprieve on appeal are frequently not sentenced to death when resentenced with a fairer process. Fewer than a third of those whose sentences have been overturned have received the death penalty the second time through the system.
• California's Supreme Court is in greater conflict with federal courts than any other state's. The state court, one of the most conservative in the nation, reverses 10 percent of death sentences, one of the lowest rates in the country. Federal courts have reversed 62 percent of the sentences affirmed by the California court, the highest rate nationally.

"State Killing in the English Speaking Caribbean: A Legacy of Colonial Times" - A new report released on April 23 by Amnesty International notes that the judicial systems of the English-speaking Caribbean that administer the death penalty fall short of international standards governing the imposition of capital punishment. "Inadequate provision for defence lawyers, both at the trial and on appeal, the imposition of death sentences on those suffering from mental health problems and the use of coerced confessions are all commonplace violations of international standards in the English-speaking Caribbean," said Piers Bannister, the organization's researcher on the region. "Even the most ardent supporter of the death penalty should be concerned at the quality of the judicial system employed to inflict the ultimate punishment." (Amnesty International Press Release, 4/23/02).

Amnesty International Reports on World Executions; U.S. Leads in Juvenile Executions - A new report released by Amnesty International states that 3,048 people were executed in 31 countries in 2001. According to the report, China, Iran, Saudi Arabia, and the United States accounted for 90% of the death sentences carried out last year. China alone was responsible for 80% of the executions. Amnesty International said that it was encouraged by the reduction in number of executions of juvenile offenders last year. In 2001, there were only three such executions, taking place in only three countries- the United States, Iran, and Pakistan. Since 1990, the United States has executed 15 juvenile offenders, more than any other country. (Associated Press, 4/9/02)

Amnesty International Report Shows Decline in Use of Death Penalty Internationally- A new report by Amnesty International, "Facts and Figures on the Death Penalty," states that over half of the countries in the world no longer use capital punishment. The report also notes:

• 111 countries have abolished the death penalty in law or practice
• Over 30 countries and territories have abolished the death penalty for all crimes since 1990, including countries in Africa, the Americas, Asia, and Europe
• Recent crime figures from abolitionist countries show that abolition does not have harmful effects. In Canada, or example, the homicide rate fell 43% from a high of 3.09 in 1975, a year before the abolition of the death penalty, to 1.76 in 1999.

"The Execution of Wanda Jean"
On Sunday March 17 at 10PM/9C, HBO premiered "The Execution of Wanda Jean." This documentary examines the months and days leading up to the execution of Wanda Jean Allen, the first woman to be put to death in Oklahoma since the death penalty was reinstated. Through interviews with Wanda Jean, her family, her clemency team, and her victim's family, this documentary explores the roles that poverty, mental health, race and sexuality played in the case of Allen, who was executed in Oklahoma on January 11, 2001. For more information, see HBO's Web page on the film.

Follow-up of Major Death Penalty Study Examines Causes of Error in Capital Cases
A new report released on Feb. 11 by Columbia University, "A Broken System, Part II: Why There is So Much Error in Capital Cases, and What Can be Done About It," explains the factors that lead to errors in death penalty cases. The study uses a variety of statistical techniques to identify factors explaining why some states and counties have more capital error than others. The principal finding of the study is that the high rate of mistakes in death penalty cases is related to aggressive overuse of the punishment. Instead of using the death penalty for the "worst of the worst" cases, other influences related to race and political pressure lead to an error-prone expansion of capital punishment. "What our study shows is that aggressive death sentencing is a magnet for serious error," said Professor James Liebman, the leading researcher for the study. The report is a follow-up to a June 2000 study, "A Broken System, Error Rates in Capital Cases 1973-1995," which revealed that 68% of all capital judgments were reversed by the courts due to serious error. (Columbia University Press Release, 2/11/02 and New York Times, 2/11/02).
The entire study is available on line at http://www.law2.columbia.edu/brokensystem2/ See Questions and Answers about the study. For more information about the initial study, see below.

"A Call for Reckoning: Religion and the Death Penalty" - In January, the Pew Forum on Religion and Public Life convened a conference at the University of Chicago entitled, "A Call for Reckoning: Religion and the Death Penalty," which brought together prominent theologians, legal scholars, attorneys, legislators, and members of the judiciary, including U.S. Supreme Court Antonin Scalia. Conference organizers compiled a series of resources for conference participants that can be used as a discussion guide in classrooms, workshops and congregational settings. The Conference Reader is now available from the Pew Forum.

Amnesty International Report Condemns 25 Years of Executions in the U.S. - On January 17, Amnesty International released a new report, "Arbitrary, Discriminatory, and Cruel: An aide-mŽmoire to 25 Years of Judicial Killing," a report marking the 25th anniversary of the resumption of executions in the U.S. The report focuses on some of the over 750 executions in the U.S. since 1976, citing specific cases to illustrate instances where the condemned was a juvenile, suffered from mental retardation, or was a foreign national denied consular rights. Also highlighted are cases where the defendant was executed despite doubts of his or her guilt, or received inadequate representation. Since the death penalty was reinstated in the U.S., more than 60 countries have abandoned the use of the death penalty. (Amnesty International, Press Release, 1/17/02) Read the entire report.

"Justice: Denied -- The Magazine for the Wrongly Convicted" - A special edition of Justice: Denied, highlighting the best of the magazine's two years of publication, is now available on-line. The magazine, which is devoted to helping people who have been wrongly convicted, offers information about these individuals, including stories on the attorneys who work on their cases, personal histories, and photographs. The Web site also offers an archive of previous issues. Read the Special Edition of Justice: Denied.

Innocence Project Web Site - The new comprehensive Web site of the Innocence Project at the Benjamin N. Cardozo School of Law is now available. The site contains case profiles (99 inmates have been freed through DNA testing), other innocence projects, DNA legislation and news, and much more.