Category: Capital Punishment

2

The Strategic Use Of The Death Penalty

A BBC Newshour report, this morning (autdio link) suggests that Indonesia’s decision to execute three Christians yesterday, for their role in a 1998 Christian-Muslim conflict, might have been strategic. For example, there are several Muslims on death row for the Bali bombing. And other Muslims are facing trial, and potentially the death penalty, for the same Sulewesian rioting that gave rise to yesterday’s executions. The commentators suggested that in order for the Muslim government to execute Muslims, it may have been strategically wise to execute the Christians first.

This may be a cynical use of death, but I wonder whether some states have run similar calculations. African-Americans are disparately represented on American death rows, vis a vis their percentage of the overall population. The race critique of capital punishment has had a fair degree of traction (compared, at least, to many other criticisms.) Do some jurisdictions attempt to protect their capital scheme from such attacks by executing whites at a faster rate than African-Americans, notwithstanding the overall demographic of death row? In Alabama, for example, from 1999-2005, across two gubernatorial administrations, 12 of 17 people executed were white. And from 2002-2005, all eleven people executed were white. This in a state where almost half of death row is populated by African-Americans. I recognize that each case proceeds at its own pace – to some degree – but I’m curious whether the goal of legitimizing capital punishment ever plays into the decisions of which individuals a state seeks to execute first. (And yes, I do think it’s worth noting that at this final stage, there might actually be an anti-white bias in imposition of the sanction, notwithstanding my suspicion that – at earlier stages – the bias seems to cut the opposite way.)

This is not an accusation. I don’t have any answers. I’m simply curious about the degree to which all decisions about the death penalty – from charging all the way to seeking a warrant – might be driven by the needs of external legitimacy, rather than by broader moral, or narrower individualized, concerns.

11

Mental Illness And The Death Penalty

The ABA’s Florida death penalty assessment team, headed up by Chris Slobogin of the University of Florida, has released its report on the state’s capital scheme. Unlike the Alabama team, this group did not endorse a moratorium in the state. It did, however, raise a number of concerns including (among others): the large number of exonerations, inadequate compensation for conflict counsel, racial and geographic disparities, and the large number of people with mental disability on death row.

Although we did not address this at length in the Alabama report, my experience suggests that a shocking portion of people on death row have some mental illness. I suspect that many people would be troubled to learn the degree to which death rows warehouse people with mental disabilities. There has been relatively little empirical work on this question, though a recent study prepared by the U.S. Department of Justice, Bureau of Justice Statistics, showed that 55% of male inmates in state prisons, and 44% of men in federal pens, have mental health problems. I feel pretty confident that death row inmates ore no less than typical on this front, and probably disproportionately evidence mental health problems. It is possible that these problems are the product of imprisonment itself – SuperMax prisons, for example, are brutal – but there is certainly research suggesting that most folks on death row have a pre-existing history of either mental illness, mental retardation, or brain injuries.

There are a several issues involved in the execution of people with mental illness. First, there are the moral questions. Is it fair to execute a person who makes decisions under the influence of brain illness or damage? Can such acts, no matter how heinous, ever carry sufficient moral culpability support death? A separate issue, for those who oppose abortion on the grounds of a predictable disability and simultaneously support the death penalty, is whether one can later support execution of a person whose behavior results, at least in part, from a disability that would not have justified abortion. If a person maintains these two positions, is she essentially arguing that the offender is allowed to be born on the chance that the disability will not result in a killing? But what if future research shows that particular disabilities are high predictors of future violence. Would a “death sentence” for the fetus then be justified?

There are also separate issues of the sort previously raised by the Court. Can a mentally ill person really assist counsel? Does execution of mentally ill people serve the purposes of punishment

Then there is the human rights issue. Does allowing execution of mentally ill people undermine our credibility as human rights activists around the world?

Some people will argue that these judgments are properly left to juries as they weigh aggravating and mitigating factors. Perhaps. As long as we have capital punishment, someone will have to make these tough calls at some stage – and I don’t have any more faith in judges than twelve citizens. But the only way a jury can make a fair judgment is if the defendant’s counsel effectively investigates and presents relevant facts. Sadly, based on recent ABA reports (such as the one from Alabama), too many defense lawyers aren’t up to the task. And that makes it awfully hard for juries to do their job properly.

6

More On Execution Of The Innocent

Although Justice Scalia recently argued that there were no documented cases of innocents being executed, Theodore Shaw of the Legal Defense Fund offered a pretty convincing counter-argument on the point in Sunday’s Washington Post. Shaw makes the case that there is good reason to believe that at least four innocent people have been executed since 1989 but his evidence does not include any DNA test results. I wonder if Scalia would dismiss these innocence claims as baseless, suggesting that nothing has been produced that would cause him to second-guess the jury’s factfinding. If so, what would it take to convince him?

I suspect that this discussion points to the corrosive effect that DNA exonerations have had on the broader debate about erroneous convictions. None of the cases Shaw cites offered the lock-down certainty of scientific testing. But relatively few investigations or convictions turn on DNA evidence. If we conclude that the only true exonerations are those backed by DNA testing (or similar scientific proof), we will be turning our back on many equally problematic convictions. In effect, we will treating the judgment of the jury – grounded in a factfinding and presentation process potentially tainted by all sorts of problems, starting with bad lawyering – as the moral equivalent of DNA testing: virtually irrefutable. And this may be exactly Scalia’s move in his Kansas v. Marsh dissent. If innocence cannot be proven through DNA, it can’t be proven at all. That is, in the absence of DNA counter-evidence, juries are always correct.

I think Justice Thomas took the more intellectually honest position. People and criminal justice systems are imperfect. Some juries will convict innocent people. Some states will execute innocent people. And the Constitution says there’s nothing the Supreme Court can do about it.

2

How A Public Defender Keeps Death (Sentences) At Bay

Some people have expressed surprise, and even doubts, that the Philly PD has managed to keep all of its clients off death row. The explanation is less grand, but perhaps more important, than one might think. The PD’s – lawyers, social workers, and others assigned to these clients – simply work these cases harder than most appointed counsel. And they don’t just do thorough investigations. They do the work that so many defense lawyers appear to dread: they spend serious time with their clients. (Let me say at the outset that, notwithstanding my broad criticisms of lawyers who handle indigent appointments, there remain many such attorneys who do good work. Many, but not nearly enough.)

Most criminal cases settle with a plea bargain. The same is true for the Philly PD. But to make a plea bargain work in a capital case, you have to do two things. First, you have to sell the DA on a deal. This means you must investigate the case thoroughly – and early on – so that you can explain to the DA why your client does not deserve death, and why you would have a good chance of getting either an acquittal on the capital charge, or a life sentence, if the case proceeded to trial. In non-capital cases, defense lawyers will often be far more secretive about some of these details, figuring that they’ll do better with a jiury than with the prosecutor. Because trying capital cases is so risky, the better approach – with a DA who will talk (i.e., one who does not use every case as an opportunity to advance his or her political fortunes) – is often to bring out many of these factual and equitable claims in the negoitation process.

Perhaps even more than doing great investigation, you have to build close relationships with your client. One might assume that every defendant would be looking for a way to plead to a life sentence, in order to avoid death. But it turns out (no surprise, really) that the prospect of voluntarily accepting lifetime incarceration is a whopper. Death penalty advocates may believe that “life doesn’t mean life”, but most defendants think it does. And particularly for the 18 or 19 or 23 year old defendant, a life sentence may feel comparable to death. So the staff of the Philly PD’s homicide unit actually create strong relationships with their clients, in order to garner the trust necessary to sell a plea bargain. It turns out that this is not only good from an instrumental view – getting a better sentence – but it’s also better for the client’s psyche. Rich or poor, most defendants are the same: they’re afraid and unsure and need a great deal of information and reassurance from their lawyers. Unfortunately, few indigent clients ever receive that kind of treatment.

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4

Are We Too Obsessed By Capital Cases?

One of the recurring themes in Doug Berman’s (incredibly valuable) blog is his concern that capital cases receive too much scrutiny. He doesn’t deny the significance of the sanction, but believes that other sentencing issues – e.g., the new guidelines jurisprudence, the incredible overuse of long-term imprisonment, and the sense that a substantial number of innocent people may be pleading guilty to felonies - are of greater overall importance. (Of course, for all his protestations, Sentencing Law and Policy is a go-to address for news about capital punishment issues.)

I think he raises an important matter, and rather than take issue with him, I’d like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss’s claim that empirical data on crime has produced some clear truths about effective responses to crime – check out Dan Markel’s preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America’s ability to claim moral authority in many international debates and disputes.

That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.

So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government – whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.

But I certainly don’t think that capital punishment should use up all the oxygen of criminal justice debate. Doug’s blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn’t turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.

Personally, I’m going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree – and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug’s caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.

7

Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that “among all prosecutions homicide cases suffer an unusually high incidence of false conviction.” He explained this phenomenon as due to “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent”. Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases – from drug cases, to DUI, to disorderly conduct – error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults – including homicides – involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID’s in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to “believe” eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they’re telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

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5

Scalia v. Souter On The Death Penalty

Today’s Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas’s death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other – that is, it’s an evidentiary tie. (There’s a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America’s death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent.” Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded “in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.”

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that “because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system.” Put another way: innocent people may be executed, but probably not that many, and there’s not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter’s three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter’s opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently – and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter’s opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn’t a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don’t reduce erroneous convictions. Souter’s argument only makes real sense – as the dissent notes – if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That’s not a narrow procedural ruling; that’s a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn’t even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don’t know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can’t have thought he’d win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter’s opinion was designed for all these purposes, as well as to spur further international debate on America’s use of capital punishment. Indeed, the international dimension of this case – which Scalia highlighted – is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order – discovered by 41 – increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it’s easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain’t so bad. I agree with MJ, commenting over at Orin’s place, though. I suspect that Scalia’s opinion was so much of a “smack-down” that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.

3

The Problem Of Jury Override In Capital Cases

The ABA death penalty assessment for Alabama highlighted several serious concerns regarding the role of the jury in capital cases. First, judges can override jury recommendations of life. Second, a 10-2 vote – two short of unanimity – is sufficient to support a death recommendation. And, in a slightly different vein, surveys of jurors in capital cases suggest that these jurors are utterly confused about the applicable law. In this post, I’ll attempt to provide further analysis on the issue of jury overrides. (This is my fourth post about the ABA assessment. Others are here, here, and here.)

In Alabama, capital juries only recommend a sentence; the final decision on life or death belongs only to the judge. Alabama is one of only four states that allow a judge to sentence a defendant to death when a jury has rejected this sanction and imposed life. (Some people thought that Ring v. Arizona ended this practice, when it provided that juries – not judges – must find aggravators beyond a reasonable doubt. Because of the structure’s of Alabama’s death statute, however, Alabama courts have thus far upheld Alabama’s override statute.) Of these four states, Alabama is the only jurisdiction that selects judges in partisan elections. Jury override is designed to allow judges to regulate the use of death to insure that the punishment is not imposed arbitrarily or unfairly.

It turns out that in Alabama, 90% of all judicial overrides of jury verdicts impose death against the advice of the jury. Why is this?

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1

Death In Alabama: The Problem Of Indigent Defense

One of the most cutting critiques of Alabama’s death penalty system is that many defendants – and probably most – do not receive the miminal quality counsel one might expect in a case involving life or death. It has long been my view that society should aspire to provide indigent criminal defendants the sort of quality representation that our corporations expect. Or to put it a different way, I believe that indigent lawyers should be good enough that a sophisticated consumer of legal services would entrust the fate of his or her son or daughter to such attorneys. Unfortunately, Alabama’s indigent defense system falls far, far short of this goal.

In its recent Alabama death penalty assessment, the ABA team articulated three particular concerns about counsel in capital cases. First, the matter of qualifications. The only requirement of a lawyer appointed in a capital case – and the law only requires that one lawyer be appointed – is that he or she have five years of criminal defense experience. He or she need not be a full-time “criminal lawyer” – handling several criminal cases will suffice. And even this minimal requirement isn’t even always enforced. Why is this qualification too thin? Capital work is extremely high stakes and requires serious trial talent. But even more so, it requires a skill distinct from other criminal work: the ability to litigate the punishment issues of mitigation and aggravation. Mitigation in capital cases is exceptionally complex, requiring excellent interview and investigation skills, the ability to frame a compelling narrative (that looks very different from the guilt/innocence narrative), and a talent for understanding how to make guilt/innocence issues work in tandem (not conflict) with life/death issues. A general practitioner with some background in criminal cases won’t learn this stuff. Nobody would choose to have a cornonary bypass with a doctor who’d done a few heart surgeries, here and there. The same holds true with capital cases.

A second challenge is the state’s lack of training requirements. The amount of specialized training required of appointed counsel in capital cases? None. And when you have untrained defenders trying their first capital case all allone, that effectively turns capital defendants into guinea pigs.

Finally, there is the matter of compensation. Until 1999, Alabama capped fees in capital cases at $2000. Most people currently on death row were convicted under that cap. The limit has been lifted, and fees – meager as they are ($40/hour for out of court work; $60/hour for in-court) – can at least match the needs of an individual case. The same is not true on appeal, however, where fees remain capped at $2000. When you consider how long it takes simply to review a 1500 page trial record, one can only expect an appellate lawyer to do the most cursory job on these cases. And when it comes to post-conviction representation – state collateral challenges – Alabama offers even less. Alabama is one of only two states that does not guarantee counsel in these proceedings. A judge has the discretion to appoint counsel, but the fee cap is $1000.

As I am writing in a separate post, I think the answer to many of these challenges is a properly funded public defender. But at minimum, the state should follow the ABA’s recommendation that it appoint a statewide commission on indigent defense. The starting point for any fair and accurate death penalty system is provision of quality defense services. Indeed, such services are a precondition to a just capital punishment regime. Put simply, it’s a matter of good government.

16

Death Penalty Moratorium In Alabama? Critical ABA Panel Says Yes

Sunday, the ABA issued the Alabama Death Penalty Assessment Report, an extensive study of the state’s capital punishment system. The report was prepared by a team of Alabama lawyers that included a sitting DA, a former federal magistrate judge, a state legislator, a former president of the Alabama State Bar, and several lawyers in private practice. (I chaired the team.) It was critical of many aspects of the state’s death scheme including the quality and scope of indigent defense counsel, inadequate proportionality review, a failure to address serious juror confusion about legal standards, and the ability of judges to override jury imposed life sentences. The committee (with one dissent – the sitting district attorney) called for the state to adopt a moratorium on the death penalty pending significant improvements in the state’s system. The executive summary is here; the complete 265 page report is here. An op-ed I co-authored with Michael Greco, the ABA President, is here.

I plan to blog about different aspects of the assessment over the course of this week. Suffice to say, as a starting point, that the study contains a good deal of bad news about the fairness of the state’s scheme. One of the most troubling things that surfaced in our work was the fact that the state’s capital system has eluded serious study for so long. Unlike some other states, few individuals or organizations have conducted extensive research on it. The state engages in fairly limited data collection as well. As a consequence, we were somewhat limited in our ability to provide a complete snapshot of the system.

In many respects. this report is best designed to start – rather than end – serious scrutiny of capital punishment in Alabama. Among other things, the assessment compiles a host of details about the state’s capital punishment laws and procedures. We hope that this compilation will not only assist researchers and policymakers, but criminal lawyers as well.

UPDATE: I will try to link my subsquent posts here. Tuesday’s related posts are here and here. Wednesday’s related post is here.