Twenty Years of Capital Punishment: A Re-Evaluation

“One area of law more than any other besmirches the constitutional vision of human dignity… . The barbaric death penalty violates our Constitution. Even the most vile murderer does not release the state from its obligation to respect dignity, for the state does not honor the victim by emulating his murderer. Capital punishment’s fatal flaw is that it treats people as objects to be toyed with and discarded… . One day the Court will outlaw the death penalty. Permanently.”

—William J. Brennan, Jr., retired Supreme Court Justice, 1996 [1]

“From this day forward, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored—indeed, I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated to concede that the death penalty experiment has failed.”

—Harry Blackmun, retired Supreme Court Justice, 1994 [2]

“If we had deliberately set out to create a chaotic system, we couldn’t have come up with anything worse. It’s a merry-go-round, it’s ridiculous; it’s so clogged up only an arbitrary few ever get it. I don’t get any damn pleasure out of the death penalty and I never have. And frankly, if they abolished it tomorrow, I’d go get drunk in celebration.”

—Ray Marky, former Florida Assistant Attorney General for prosecuting death penalty appeals [3]

“He’s running on the death penalty for drug pushers. I mean, goodness gracious, if … that’s what politics has descended into in the 1990s—who can get to the far right on the death penalty—it is a sad day.”

—Republican Jack Kemp, former Secretary of HUD [4]

“I have come to think that capital punishment should be abolished.”

—Lewis F. Powell, Jr., retired Supreme Court Justice, 1991 [5]

“Take it from someone who has spent a career in Federal and state law enforcement, enacting the death penalty … would be a grave mistake. Prosecutors must reveal the dirty little secret they too often share only among themselves: The death penalty actually hinders the fight against crime.”

—Robert M. Morgenthau, District Attorney, Manhattan, NY, 1995 [6]

On July 2, 1976, the United States Supreme Court handed down its decision in Gregg v. Georgia, which allowed the death penalty to resume after a decade-long moratorium on executions. The majority of the Court held that the potential for unfairness which had been a hallmark of capital punishment in the past had been sufficiently ameliorated by the enactment of recent laws which guided its imposition. In 1972, the Court had concluded that the death penalty was cruel and unusual punishment under existing statutes because it was randomly applied. The imposition of the death penalty was akin to being struck by lightning: it was arbitrary, cruel, and unpredictable in its selective fury.

The death penalty’s arbitrary quality meant that those with the power to hurl this lightning could be influenced by personal prejudices. There was ample evidence, for example, that juries, judges and prosecutors were more likely to inflict the death penalty on African-Americans, especially if the victim in the underlying crime was white. [7] The opening created by the arbitrariness of the process resulted in a flood of cases which were all too predictable: the death penalty was used primarily against the poor, minorities, and those unable to secure competent attorneys.

In 1976, the Supreme Court ruled that the problem with the death penalty lay not with the punishment itself, but rather with the vague state statutes which had allowed such arbitrary applications. From among a variety of new statutes which states had passed after the death penalty was struck down in 1972, the Court found that those of Florida, Georgia, and Texas provided the guidance to juries necessary to prevent the arbitrary application of the death penalty.

But the Supreme Court’s approval of these new statutes (and others which would imitate them) was tentative: it was too soon to tell if these new laws would also be applied in an arbitrary fashion, thereby violating the Eighth Amendment’s ban on cruel and unusual punishment.

We now have twenty years of experience with these new statutes. Since 1976, well over 5,000 people have been sentenced to death; 330 people have been executed in 26 states; 3,061 people remain on death row awaiting execution. This is an appropriate time to ask if the death penalty has fulfilled the promise of justice and fairness made 20 years ago.

The problem of racial disparities in the application of the death penalty which existed before 1976 has not been eliminated. Although African-Americans continue to be sentenced to death and executed in far greater numbers than their proportion in the U.S. population,[8] the most significant studies of racial disparities point to the race of the victims in the underlying crimes as the critical factor. Those sentenced to death have been most often convicted of committing a crime against a white person. Eighty-two percent of the murder victims in the cases resulting in executions since 1976 have been white, [9] even though whites are victims in less than 50 percent of the murders committed in the U.S.[10] When both race of defendant and race of victim figures are examined, the statistics are even more glaring. Since 1976, 84 black defendants have been executed for the murder of a white victim, but only 4 white defendants have been executed for the murder of a black victim. [11]

In 1990, the United States General Accounting Office conducted a review of the best studies concerning race and the death penalty. They concluded that:

[R]ace of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques.[12]

Justice Harry Blackmun, who voted to uphold the death penalty both in 1972 when it was halted, and in 1976 when it was reinstated, recently concluded that racial discrimination continues to infect the practice of the death penalty: “Even under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die.”[13]

Racial disparities in the death penalty continue in various ways:

• In Maryland, 87 percent of those on death row are African-Americans.[14] (The overwhelming majority of those sentenced to death come from a single suburban county.)
• In Kentucky, 100 percent of those on death row are there for the murder of a white victim, despite the fact that there have been 1,000 African-Americans murdered in that state since 1976. [15]
• In New Jersey, a recent death penalty study by the state’s Supreme Court found “strong and consistent biases” against black defendants, taking into account cases with similar socio-economic backgrounds and similar aggravating and mitigating circumstances. [16]
• Under the federal death penalty, which resumed in 1988 and was expanded in 1994, 78 percent of those slated for capital prosecution have been members of minorities. [17]

Race is not the only criterion which influences who receives the death penalty. The use of the death penalty varies greatly from one region of the country to another, from one state to another, and even from county to county within a state. Prosecutors have virtually unreviewable discretion in deciding whether to seek the death penalty in a particular case.

The Inequities of Location

Of the 330 executions which have taken place since 1976, 274 (or 83 percent) have occurred in the South. Texas, alone, has accounted for about a third of all executions in the country. And even within Texas, the practice is anything but uniform. Houston, whose population makes up about 16 percent of Texas’s total population, is responsible for about a third of Texas’s death row.[18] Similarly, over half of Pennsylvania’s death row comes from one city, Philadelphia.[19] Philadelphia contains only 14 percent of the state’s population but its prosecutor pursues the death penalty in virtually every available case.

The Inequities of Appointed Attorneys

After the decision by the prosecutor to pursue the death penalty, the wheel of chance spins again to select a lawyer for the defendant. About 90 percent of those facing capital charges cannot afford their own lawyer.[20] A few defendants will be assigned competent attorneys, skilled in handling a death penalty case. More typically, however, the defendant will be given a lawyer willing to accept a pittance of a fee, and who will be denied the necessary resources to conduct an adequate defense. The death penalty will be assessed not on those who have committed the worst crimes, but on those given the worst lawyers.

Defendants facing the death penalty have been given lawyers who were drunk during the trial, lawyers who fell asleep during the trial, lawyers who were absent during critical parts of the case, lawyers who had just graduated from law school, or lawyers who had never handled a criminal case. [21] Even experienced lawyers can do little when they are paid two or three thousand dollars for a case which requires a thousand hours of preparation and thousands of dollars for experts and investigators.

States are simply unwilling to spend the money it takes to eliminate this arbitrary factor in the death penalty. Capital punishment is already a tremendous financial drain on state and local government. Providing fairly compensated counsel, and the resources they need to conduct a full defense of their client, is not a priority for governments or taxpayers. An arbitrarily applied death penalty is the result. As Justice Harry Blackmun wrote shortly before leaving the Supreme Court: “My 24 years of overseeing the imposition of the death penalty from this Court have left me in grave doubt … whether the constitutional requirement of competent counsel for capital defendants is being fulfilled.” [22]

The Inequities of Juries

Even juries, who have supposedly benefited from the Supreme Court’s requirement that they be guided in their deliberations, are unpredictable in their death penalty decisions. After finding a defendant guilty, juries are thrust in the unique role of deciding who should live or die. Typically, they are instructed to return a death sentence if the aggravating factors in the case outweigh the mitigating factors, without other cases to compare. Not surprisingly, this artificial mechanism for approaching such a critical question leaves many jurors bewildered.

A recent study of jurors in capital cases found that the majority of jurors formed an opinion about the defendant’s sentence before hearing any evidence at the punishment phase of the trial. Over 40 percent did not understand the jury instructions about how to evaluate mitigating factors.[23] Also, although jurors frequently ask about the length of a “life sentence,” they are often left to guess about its meaning. [24] And the jury’s knowledge of the mitigating factors which might tilt the scales in favor of a life sentence is totally dependent on the defense lawyer’s presentation; in many cases, defense lawyers put on no mitigating evidence, thereby depriving the jury of critical information necessary for their decision. [25]

Women and the Death Penalty

Throughout the past twenty years, women have remained a very small percentage of those sentenced to death. Since the death penalty returned, 113 women have been sentenced to death, about 2 percent of the total death sentences in that period. Forty-six women remain on death row today. [26] One woman has been executed during this period: Velma Barfield, who was executed by lethal injection in North Carolina in 1984 for killing her fiancee.

The infrequency of using the death penalty against women continues a pattern from previous eras. Neither Texas nor Florida, the two current leaders in executions, have executed a woman in this century. [27]

Juveniles and the Death Penalty[28]

The number of juvenile offenders (those under 18 years of age at the time of their crime) on death row is about the same as the number of women. However, since 1976 nine juvenile offenders have been executed, the majority of them from Texas. Of the 46 juvenile offenders on death row, 65 percent are either black or Hispanic.

Fourteen states and the federal government forbid the death penalty for juvenile offenders. In 1988, the Supreme Court ruled that the execution of an Oklahoman who was 15 at the time of his crime would be unconstitutional.[29] However, in 1989, the Court upheld the death penalty for those who were 16 or 17 at the time of their crime. [30]

Only seven other countries in the world are known to have carried out an execution of a juvenile offender in the last ten years, and none has carried out as many as the United States. [31] The U.N. International Covenant on Civil and Political Rights, which the United States has ratified with reservations, prohibits the imposition of the death penalty on juvenile offenders. [32]

Mental Retardation and the Death Penalty

Persons with mental retardation fall into the bottom two to three percent of the U.S. population in intellectual functioning. They are unlikely to achieve a mental age greater than 12 years old. [33] Persons with mental retardation who have committed a crime have a diminished capacity to understand right from wrong and the legal consequences of their actions. And even those who are completely innocent are more prone to confess to what they have not done in order to please their interrogators. Mental retardation also interferes with the defendant’s ability to assist his or her attorney in preparing a defense. On the witness stand or even sitting in the courtroom, the defendant may appear to lack the emotions of remorse or empathy which a jury weighs in considering a death sentence. [34]

Twenty-seven defendants with mental retardation have been executed in the U.S. since 1976, [35] representing about 8 percent of all executions. Although most of the 38 states with the death penalty allow the execution of those with mental retardation, there has been some legislative movement towards stopping such executions. When the U.S. Supreme Court upheld the constitutionality of applying the death penalty to those with mental retardation in 1989, it noted that only one state forbade this practice. [36] Today, 11 states and the federal death penalty statute exclude those with mental retardation. Justice William Brennan, in dissenting from the Supreme Court’s decision in this regard, wrote that “the execution of mentally retarded individuals is ‘nothing more than the purposeless and needless imposition of pain and suffering,’ and is unconstitutional under the Eighth Amendment.” [37]

Twenty years ago, the majority of people supported the death penalty because it was thought to be a deterrent to crime. Today, only 13 percent rely on deterrence as their basis for supporting capital punishment. [38]

Expert opinion is dismissive of any deterrent effect to the death penalty. A recent poll of criminologists found that over 80 percent of these experts believe that existing research fails to support a deterrence justification for capital punishment. [39] A 1995 national poll of the nation’s police chiefs revealed that the police do not believe the death penalty is effective in fighting crime. [40] Two-thirds of those polled did not believe that the death penalty significantly reduces the number of homicides, and most said it is not an effective law enforcement tool. Similarly, a poll of the nation’s top city officials by the National League of Cities placed the death penalty last in a long list of measures most likely to reduce crime. [41]

While the rational justification for the death penalty remains in doubt, there is little disagreement that it amounts to a very expensive government program. The most comprehensive study in the country found that the death penalty costs North Carolina $2.16 million per execution more than the cost of a non-death penalty murder case with a sentence of life imprisonment.[42] Another study found that the death penalty costs the State of California $90 million annually beyond the ordinary costs of the justice system, including $78 million at the trial level.[43] The State of Florida is spending an average of $3.2 million per execution.[44] In Texas, a death penalty case costs an average of $2.3 million, about three times the cost of imprisoning someone for 40 years in a single cell at the highest security level. [45] The hundreds of millions of dollars spent on the death penalty could instead be going toward programs that actually reduce the level of crime.

The death penalty has become a mainstay of political campaigns, and the issue is frequently inserted into races for state, national and even judicial elections. [46] When opposing candidates both support capital punishment, they vie for ever more draconian approaches to expand the number of death-eligible crimes, cutback on the appeals process, and speed up executions. House Speaker Newt Gingrich recently proposed the death penalty for drug smuggling and recommended the execution of 35 people at one time. [47]

Another recent example of this politicization was the legislation proposed as a response to the bombing in Oklahoma City. A series of anti-terrorism measures was quickly transformed into an attack on death penalty appeals. According to Republican Presidential candidate Bob Dole, the restrictions on federal review of death cases were the “heart and soul” of the terrorism bill. [48] Families of victims of the Oklahoma bombing were brought to Washington to lobby for speeding up state death penalty cases which had nothing to do with terrorism.

Other legislative proposals, such as the expansion of the federal death penalty and the elimination of federal funding for the centers defending those on death row, have recently passed into law in response to this politicization. Such cutbacks could lead to mistaken executions, especially since little is being done to improve the quality of counsel defending capital cases at trial.

Since 1973, fifty-nine death row inmates have been released after evidence of their innocence emerged. Some of these prisoners came within days of execution. In far too many of the cases, the trial lawyer failed to do the basic investigation necessary to exonerate the client. It took an average of 7 years from conviction until these people were released. Yet many politicians are pushing for expedited appeals schedules that would terminate in much less time, thereby increasing the likelihood that evidence of innocence will not be established before execution.

Some of those released from death row during the past 20 years include:

• Wilbert Lee and Freddie Pitts in Florida in 1975. They were convicted of a double murder and sentenced to death. They were released and received a full pardon from Governor Askew because of their innocence. Another man had confessed to the killings.
• Randall Dale Adams in Texas in 1989. He was ordered to be released by the Texas Court of Appeals after new evidence emerged. The prosecutors declined to seek a new trial. Adams was the subject of the movie, The Thin Blue Line, which was produced while he was still in prison.
• Clarence Brandley in Texas in 1990. Brandley was awarded a new trial when evidence of racism, perjury and suppression of evidence was uncovered. After ten years on death row, all charges were dropped.
• Gary Nelson in Georgia in 1991. Nelson’s representation at trial was a disgrace. Fortunately, a major law firm in Atlanta took over his case. The county district attorney eventually acknowledged: “There is no material element of the state’s case in the original trial which has not subsequently been determined to be impeached or contradicted.”
• Kirk Bloodsworth in Maryland in 1993. Bloodsworth was convicted and sentenced to death for the rape and murder of a young girl. He was first granted a new trial and given a life sentence. He was released after subsequent DNA testing confirmed his innocence.
• Walter McMillian in Alabama in 1993. His conviction was overturned by the Alabama Court of Criminal Appeals, and he was freed, after three witnesses recanted their testimony and prosecutors agreed the case had been mishandled. His case was the subject of a 60 Minutes investigation.
• Andrew Golden in Florida in 1994. Golden’s conviction was overturned by the Florida Supreme Court in 1993. The court held that the state had failed to prove that the victim’s death was anything but an accident. Golden, a former teacher, was released into the waiting arms of his children on January 6, 1994.
• Rolando Cruz in Illinois in 1995. Cruz was sentenced to death for the murder of 10-year-old Jeanine Nicarico. Another man, Brian Dugan, confessed to the killing. An assistant state attorney general resigned and other law enforcement officials protested, because they thought it improper to continue the prosecution of Cruz, whom they said was innocent. In July, 1994, the state Supreme Court overturned Cruz’s conviction. Cruz was acquitted at his retrial in November, 1995.

While the U.S. has been expanding the death penalty and accelerating executions, the world community has been moving away from the death penalty. There are now more countries (100) which have abolished capital punishment in law or in practice than countries which retain it. [49] Since 1976, an average of two countries a year have abolished the death penalty, at least for ordinary crimes. The countries which have stopped the ordinary use of the death penalty since 1976 include: South Africa, Italy, Greece, Switzerland, Hungary, Ireland, Cambodia, New Zealand, Romania, Germany, Australia, Argentina, France, Spain, and Canada. The Vatican has condemned the widespread use of the death penalty. The United Nations has called upon member states to move towards abolition of the death penalty, to stop expanding it to new crimes, and not to apply it to juvenile offenders.[50] New countries joining the Council of Europe, which includes many former communist countries, must pledge to abolish the death penalty in three years. [51]

Twenty years ago this country embarked on an experiment with new death penalty statutes aimed at correcting the inequities and arbitrariness of the past. There now exists a considerable body of evidence—in the form of statistics, expert opinion, and personal accounts—which clearly indicates that the death penalty remains infected with injustice. Race, economics, local politics, and a host of other factors that have nothing to do with the stated purposes of capital punishment, dictate who is executed and who is spared. While the death penalty may satisfy some people’s need for revenge, in practice it remains a lottery in which the American system of justice is the ultimate loser. After twenty years it is fair to conclude, with retired Supreme Court Justice Harry Blackmun, that “the death penalty experiment has failed.”