LAW REVIEWS: The "Unreliability Principle" in Death Sentencing
A forthcoming article by University of Miami law professor Scott E. Sundby in the William & Mary Bill of Rights journal examines the "unreliability principle" established by the U.S. Supreme Court in Atkins v. Virginia and Roper v. Simmons. The article defines the unreliability principle as, "if too great a risk exists that constitutionally protected mitigation cannot be properly comprehended and accounted for by the sentencer, the unreliability that is created means that the death penalty cannot be constitutionally applied." That is, certain classes of defendants can be exempt from the death penalty because juries cannot be relied upon to adequately assess the mitigating factors. This principle applied to both intellectually disabled defendants in Atkins and juvenile defendants in Roper. Sundby argues that the principle should be extended to mentally ill defendants as well. Six factors that the court considered in Atkins and Roper are identified, and subequently applied to defendants with mental illnesses. Among the factors identified are the defendant's impared ability to assist defense attorneys, the defendant's impaired ability to serve as a witness, and the defendant's distorted decision-making skills.
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STUDIES: Arbitrariness in Connecticut Death Sentences
A newly published study by Professor John Donohue of Stanford Law School found that arbitrary factors, including race and geography, significantly affected death sentencing decisions in Connecticut. While controlling for a variety of factors related to the severity of the crime, the study's abstract indicated that "[M]inority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, [and] that geography influences both capital charging and sentencing decisions . . . ." For example, the abstract noted, "Considering the most common type of death-eligible murder – a multiple victim homicide – a white on white murder of average egregiousness outside [the city of] Waterbury has a .57 percent chance of being sentenced to death, while a minority committing the identical crime on white victims in Waterbury would face a 91.2 percent likelihood." The second defendant is 160 times more likely to be sentenced to death than the first. The study concluded, "[I]n part because of the strong racial, geographic, and gender influences on capital outcomes in Connecticut, the state’s death penalty system has not been successful at limiting the death penalty within the class of death-eligible crimes to the worst of the worst offenders or establishing that there is a principled basis for distinguishing the few death-eligible defendants that will be sentenced to death in Connecticut from the many who will not."
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STUDIES: 'Volunteers' for Execution
A new study by Prof. Meredith Martin Rountree of Northwestern University Law School examined the characteristics of Texas death row inmates who waived all or part of their normal appeals, thus hastening their execution. Referring to these inmates as "volunteers," she compared them with similarly-situated inmates who did not waive their appeals. She found that more volunteers experienced depression or had attempted suicide than non-volunteers. She also examined the role of "self-blame" in prisoners' decisions to move towards execution. Inmates who waived appeals were more likely "to have been previously convicted of a crime, to have been convicted of a crime against another person, to have been incarcerated, to have committed their capital offenses alone, and to have committed the capital offense with a gun." Prof. Rountree criticized the legal changes begun in the mid-1990s that have allowed inmates to waive appeals earlier in the process "when prisoners may be most vulnerable to desires to die." She noted "the State’s interest in fair and constitutional death sentences, something only ensured through adversarial testing of the conviction and sentence," and called for further research in this area.
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LAW REVIEWS: The American Experiment with Capital Punishment
A recent law review article by Professors Carol and Jordan Steiker describes how the Supreme Court's attempt to closely regulate the death penalty has led instead to more unpredictability in its practice, especially with executions. Writing in the Southern California Law Review, the Steikers, of Harvard Law School and the University of Texas Law School respectively, note that, "[T]he shape of contemporary death penalty practice is in many respects less regular than the practice it replaced. ... Some death penalty jurisdictions execute a substantial percentage of those sentenced to death, whereas others carry out virtually no executions. Overall, we have largely replaced a lottery for death sentences with a lottery for executions, and the engine behind that change is regulation itself." As an example, the authors point to Texas and Virginia, which have been responsible for almost half (620) of the executions in the modern era. On the other hand, California and Pennsylvania, which have had more death sentences than Texas and Virginia, have carried out only 16 executions in the same time span. The Steikers conclude that the death penalty's arbitrariness may lead to its abolition: "regulation now appears to pose extraordinary problems for the continued retention of the death penalty."
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ARBITRARINESS: Almost All Recently Executed Inmates Possessed Qualities Similar to Those Spared
Some defendants who commit murder are automatically excluded from the death penalty in the U.S., such as juveniles and the intellectually disabled. Others with similar deficits are regularly executed. A new study by Robert Smith (l.), Sophie Cull, and Zoe Robinson examined the mitigating evidence present in 100 recent cases resulting in execution, testing whether the offenders possessed qualities similar to those spared from execution. The authors found that "Nearly nine of every ten executed offenders possessed an intellectual impairment, had not yet reached their twenty-first birthday, suffered from a severe mental illness, or endured marked childhood trauma." In particular, "One-third of the last hundred executed offenders were burdened by intellectual disability, borderline intellectual functioning, or traumatic brain injury;" "More than one-third of executed offenders committed a capital crime before turning twenty-five—the age at which the brain fully matures;" and "Over half of the last one hundred executed offenders had been diagnosed with or displayed symptoms of a severe mental illness."
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STUDIES: "Predicting Erroneous Convictions"
A new study published by Professors Jon Gould (l.) of American University and Richard Leo of the University of San Francisco, along with other researchers, examined factors that have contributed to wrongful convictions in criminal cases. The study compared cases in which "guilty" defendants were eventually exonerated to those in which defendants were not convicted in the first place. The researchers found a number of variables that separated wrongful convictions from so-called "near misses," including the criminal history of the defendant, withheld exculpatory evidence, errors with forensic evidence, and inadequate representation. With respect to the death penalty, the researchers found that states with higher use of the death penalty were more likely to produce wrongful convictions, even in cases that did not involve capital punishment. The authors offered a possible explanation for this effect, saying, "In a punitive legal culture, police and prosecutors may be more interested in obtaining a conviction at all costs (leading to greater Brady violations, etc.), and community pressure may encourage overly swift resolutions to cases involving serious crimes like rape and murder." The researchers recommended changes to the justice system to limit wrongful convictions, including better funding for indigent defense, earlier testing of forensic evidence, and subjecting forensic labs to peer review.
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STUDIES: How Often Are Death Row Inmates Spared Because of Insanity?
In Ford v. Wainwright (1986), the U.S. Supreme Court banned the execution of inmates who were insane. In a dissenting opinion, Justice Rehnquist and Chief Justice Burger warned that the majority decision "offers an invitation to those who have nothing to lose...to advance entirely spurious claims of insanity." A new study has examined cases since 1986 in which death row inmates filed claims of mental incompetence and found that the deluge of spurious claims has not materialized. Of the 1,307 people the study considered "Ford-eligible," that is, those whose cases reached the point at which a Ford claim could be filed, only 6.6% (86) filed claims of incompetency. Of the cases decided on the merits, 22% of the Ford claims were successful, a high success rate when compared to other post-conviction claims in capital cases, implying non-frivolous claims were being filed. A large majority (62.6%) of inmates whose claims of insanity were decided in court had a well-documented history of mental illness, showing that raising an insanity claim was legitimate, even in many of the unsuccessful cases.
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NEW VOICES: Pennsylvania Supreme Court Justice Criticizes Inadequate Representation in Capital Cases
In a lecture at the Widener University School of Law, Pennsylvania Supreme Court Justice Thomas G. Saylor criticized the poor state of death penalty representation in Pennsylvania. He offered numerous cases in which death sentences were overturned because attorneys had failed to present mitigating evidence to the jury. Quoting from a special concurrence he wrote on a capital case involving ineffective assistance of counsel, he said, "Of greatest concern, these sorts of exceptionally costly failures, particularly as manifested across the wider body of cases, diminish the State’s credibility in terms of its ability to administer capital punishment and tarnish the justice system, which is an essential part of such administration." He cited a study of Philadelphia's death-penalty representation system, which found that the system for appointing lawyers was "woefully inadequate," "completely inconsistent with how competent trial lawyers work," "punish[ed] counsel for handling these cases correctly," and unacceptably "increase[d] the risk of ineffective assistance of counsel" in individual cases. Saylor said, "Every taxpayer should be seriously concerned about the systemic costs of inadequate defense for the poor. When the justice system fails to get it right the first time, we all pay, often for years, for new filings, retrials, and appeals. Poor systems of defense do not make economic sense."
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