Law Reviews

Law Review: Article Tracks 400 Years of America's “Inglorious Experience” With the Death Penalty

A landmark article in the Northwestern Journal of Law & Social Policy provides a “compilation of milestones in the American experience with capital punishment,” tracking more than 400 years of the “inglorious experience with capital punishment” in what is now the United States. Authors Rob Warden (pictured, left), Executive Director Emeritus at Northwestern University Pritzker School of Law’s Bluhm Legal Clinic Center on Wrongful Convictions, and Daniel Lennard (pictured, right), a lawyer at Kramer Levin Naftalis & Frankel LLP, tracked more than four centuries of capital punishment on what is now American soil. “As our milestones show,” they write, “capital punishment … has been plagued by racism, infliction of pain both intentional and unintentional, executions for crimes to which the death penalty no longer applies, for the imaginary crime of witchcraft, and, in two instances, murders that appear not to have occurred.” The authors present more than 300 chronological vignettes that depict endemic injustice in a death-penalty system they say has “claimed lives of the mentally ill, the severely intellectually handicapped or brain-damaged, juveniles, and thousands of prisoners executed in U.S. jurisdictions that have since abolished or suspended capital punishment.” Underscoring the dangers of capital punishment, the authors explain that “for every ten death row prisoners executed” under laws enacted after the U.S. Supreme Court struck down the nation’s capital punishment schemes in 1972 “more than one has been exonerated.” Moreover, death-row prisoners “in effect committ[ed] state-abetted suicide” in nearly ten percent of the executions during this period, undermining appellate safeguards by voluntarily abandoning discretionary appeals. Although three states have acknowledged having executed innocent defendants, Warden and Lennard present evidence that “untold numbers of others who likely were innocent” also have been executed. The authors ultimately conclude that maintaining capital punishment in the U.S. makes little sense “in light of its lack of a deterrent effect on crime, its racially discriminatory imposition, the risk of executing the innocent, and its obscenely high cost.” They say that while recent judicial appointments may have delayed death-penalty abolition, the trends against capital punishment “bode well” and “the outlook for abolition of the death penalty in the United States remains positive—even if it is likelier to come later than sooner.”

Professor John Bessler Traces Italian Philosopher's Abolitionist Legacy in New Book and Article

In 1764, Italian philosopher Cesare Beccaria wrote the treatise, Dei delitti e delle pene, which author John Bessler (pictured) says spawned global movements for fair and proportional punishment and against practices such as torture and the death penalty. Beccaria’s book was a best-seller that swept across Europe and, translated into English in 1767 as An Essay on Crimes and Punishments, into the American colonies, shaping the beliefs of America’s founding fathers, and influencing leaders, revolutionaries, and law reformers. In two recent publications, Bessler—a law professor and author of numerous books on the death penalty—traces the lasting influence of the 18th-century Italian nobleman and describes how Beccaria’s advocacy of equal treatment under the law and his powerful opposition to torture and the death penalty remains relevant today and has inspired an international movement that, he says, now “involv[es] scores of highly respected anti-death penalty activists and organizations.” Bessler’s latest book, The Celebrated Marquis, takes its title from a compliment given to Beccaria by the delegates of the Continental Congress. In it, Bessler describes how Beccaria’s ideals have taken root in the U.S. and shaped progressive criminal justice reforms across a span of 250 years. His article, The Abolitionist Movement Comes of Age, published in the winter 2018 issue of the Montana Law Review, chronicles Beccaria’s historical impact on efforts to abolish the death penalty across the globe. “There was a time when death sentences and executions were almost universally embraced throughout the world and when the punishment of death was the mandatory punishment for a wide array of felonies,” Bessler writes. “That has largely changed, with those changes in law and practice taking place in many nations.” The death-penalty debate, he writes, has transformed over the centuries “from one that originally focused on absolute power, the divine right of kings, and the asserted right of monarchs to take human life with impunity, to one focused on whether it violates basic or fundamental human rights for the state to kill individual offenders.” Comparing it to the anti-slavery movement in the 19th century, Bessler says “today’s global anti-death penalty movement ... has finally come into its own on the international stage.” Looking forward, he says, one can see a day in the not too distant future in which there is a peremptory international norm against executions and the death penalty itself joins torture as a prohibited international practice.

Study Analyzes Causes of “Astonishing Plunge” in Death Sentences in the United States

Multiple factors—from declining murder rates to the abandonment of capital punishment by many rural counties and substantially reduced usage in outlier counties that had aggressively imposed it in the past—have collectively led to an “astonishing plunge” in death sentences over the last twenty years, according to a new study, Lethal Rejection, published in the 2017/2018 Albany Law Review. Using data on death-eligible cases from 1994, 2004, and 2014, Drake University law professor David McCord and Niagara University criminal justice professor Talia Roitberg Harmon examined a range of factors to determine what caused the more than 75% reduction in death sentences in the U.S. between 1994 and 2014. (Click image to enlarge.) The authors found that just over half the decline could be attributed to a reduction in the number of potentially death-eligible murders, as a result of a combination of lower murder rates, Supreme Court decisions making murders committed by intellectually disabled offenders and offenders aged 17 or younger ineligible for the death penalty, and the abolition of the death penalty by six states. The rest of the decline, they said, was attributable to subjective decisions by prosecutors and sentencers, a factor they called “changing perceptions of death-worthiness.” Murders in the 37 states that authorized the death penalty in 1994 fell from 19,250 that year to 12,440 in 2014—a 35.4% decline. However, death sentences dropped by more than double that rate, from 310 to 73—a 76.5% decline. McCord and Harmon also attempted to identify factors that contributed to prosecutors’ and sentencers’ perceptions of death worthiness, which accounted for nearly half of the death-sentencing decline. The addition of life without parole as a sentencing option did not, they said, have a significant impact in lowering death sentences, except in Texas. Rather, they found that death sentences were being sought and imposed at lower rates in less aggravated murder cases, in cases with multiple perpetrators, and against defendants under age 21. They also found two types of significant geographical effects: death-sentencing dropped significantly in low-population counties across the country and in five of the nation’s highest volume death-sentencing counties (Harris, TX; Cook, IL; Pima, AZ; Philadelphia, PA; and Miami-Dade, FL). While the researchers did not report how many fewer death sentences were imposed in these counties in 2014, they described the decline as having an “outsized” effect on the national total. They conclude, “The decline in death sentencing in the United States from 1994 has been relatively rapid, quite steep, and is continuing—from the endpoint of our dataset, death sentences declined from 73 in 2014 to 49 in 2015; and in 2016 only 31 death sentences were imposed. The American death penalty seems like an ever-crankier version of the Cheshire Cat: it is grudgingly disappearing, leaving behind only its frown.”

STUDY: In Oklahoma, Race and Gender of Victim Significantly Affect Death Penalty

A new study of more than two decades of murders in Oklahoma has found that defendants charged with killing a white woman have odds of being sentenced to death in the Sooner State that are nearly ten times greater than if they had been charged with killing a man who is a racial minority. The study, published in the Fall 2017 issue of the Northwestern University Pritzker School of Law's Journal of Criminal Law and Criminology, examined more than 4,600 Oklahoma homicide cases over a 23-year period between January 1, 1990, and December 31, 2012 in which a suspect had been identified, including 153 cases in which a death sentence had been imposed. The researchers—research scientist Dr. Glenn L. Pierce and professors Michael L. Radelet and Susan Sharp (pictured, left)—found "large disparities in the odds of a death sentence" that they said "correlate with the gender and the race/ethnicity of the victim." Among other findings, the study determined that there was "a strong correlation" between the race of the victim and the probability that the death penalty would be imposed, with cases involving white victims "significantly more likely to end with a death sentence than cases with nonwhite victims." Among all murders, cases with white victims were the most likely to result in death sentences (3.92% of cases), followed by killings of Latino victims (2.67%), black victims (1.87%), and Native-American victims (1.26%). Overall, white-victim cases were more than twice as likely as cases involving black victims or non-white victims as a whole to end in a death verdict and more than three times as likely to result in a death sentence as cases with Native-American victims. The study also found significant victim-gender disparities, with murders involving at least one female victim more likely to result in a death sentence than other cases. The combination of race and gender produced even more profound disparities in death-sentencing rates. The odds that a death sentence would be imposed were nearly 10 times greater (9.59 times) in cases with white female victims than in cases with minority male victims; 8.68 times greater in cases with minority female victims than in cases with minority male victims; and more than triple (3.22 times greater) in cases with white male victims than in cases with minority male victims. While the study found that the defendant’s race by itself did not correlate with a death sentence, the probability of a death sentence for a nonwhite defendant charged with killing a white victim (5.8%) was more than triple the probability of a death sentence for a white defendant charged with killing a non-white victim (1.8%). After spending more than a year studying Oklahoma's capital punishment practices—including a draft version of the researchers' study—the bipartisan Oklahoma Death Penalty Review Commission issued a report unanimously recommending that Oklahoma continue its moratorium on executions "until significant reforms are accomplished." Two African-American death-row prisoners, Julius Darius Jones and Tremane Wood, have argued based upon that draft of the study, that Oklahoma's death penalty unconstitutionally discriminates on the basis of race.

STUDY: Worst Crimes Carry Highest Risk of Bad Evidence, Wrongful Convictions

Two professors of sociology and criminology who reviewed more than 1500 cases in which convicted prisoners were later exonerated have found a direct relationship between the seriousness of the crime and miscarriages of justice: "the 'worst of the worst crimes,'” they say, "produce the 'worst of the worst evidence.'" In their research—reported in the law review article, The Worst of the Worst: Heinous Crimes and Erroneous Evidence—University of Denver professors Scott Phillips (pictured) and Jamie Richardson found that "as the seriousness of a crime increases, so too does the chance of a wrongful conviction." Prosecutions for the most serious crimes tend to involve the most inaccurate and unreliable evidence, they said, and the risks are greatest in cases producing murder convictions and death sentences. "The types of vile crimes in which the state is most apt to seek the death penalty are the same crimes in which the state is most apt to participate in the production of erroneous evidence..., from false confession to untruthful snitches, government misconduct, and bad science." Delving into the phenomenon of false confessions, the professors found that "[a]s the seriousness of a particular crime increases, or the seriousness of the general crime problem increases, police interrogation becomes more aggressive. In turn, aggressive interrogation produces more true confessions and more false confessions." They say police officers are under institutional pressures to solve high-profile cases and the "most heinous" and serious crimes, which leads them to use more aggressive tactics to obtain a confession. Phillips and Richardson divided cases with false confessions into two categories: general-population exonerees convicted in murder and other cases; and the cases of death-row exonerees, examined by the level of heinousness of the murder. According to the National Registry of Exonerations, 234 of those 1535 exonerated from 1989 through 2014 falsely confessed, 22 of whom were sentenced to death. The sociologists found that 21% of those convicted of murder falsely confessed, as compared with only 7% of those convicted of less serious crimes. In exoneration cases in which DNA evidence bolstered claims of innocence, 41% of those wrongly convicted of murder had confessed, a false confessions rate that was seven times higher than those convicted of crimes other than murder. As for death-row exonerees, 39% of people who were convicted of the most heinous murders confessed, five times the false confession rate (7%) of those who convicted of murders the researchers had determined were less heinous. Phillips and Richardson also found that the heinousness of the murder predicts "the government's reliance on an untruthful snitch, government misconduct, and bad science." Of the death-row exonerations, the state committed misconduct in 86% percent of high-heinous murders, compared to 66% percent of low-heinous murders; the state used prison informant testimony implicating the wrong suspect in 42% of high-heinous murders, as compared to 15% of low-heinous murders; and bad science was presented in 39% of high heinous murders, compared to 23% of low heinous murders. 

STUDY: Juries Have Never Found Anyone Intellectually Disabled Under Georgia's Insurmountable Standard of Proof

No death penalty jury has ever found a defendant charged with intentional murder to be ineligible for the death penalty under Georgia's intellectual disability law, according to a new empirical study published in Georgia State University Law Review. The study, by Georgia State Law Professor Lauren Sudeall Lucas, examined 30 years of jury verdicts under the state's Guilty But Mentally Retarded statute, which has the most onerous standard in the nation for proving intellectual disability. “Georgia is an outlier," Lucas says. It is the only state to require a capital defendant to prove his or her intellectual disability beyond a reasonable doubt, and the only state to require that this determination be made at the same time that the jury is considering the defendant's guilt. “This study provides, for the first time, an accounting of how Georgia defendants have been unable to overcome the very high burden of establishing intellectual disability before a jury at the guilt phase of a capital trial—a finding that," Lucas says, "has never occurred in a case of intentional murder.” In 2002, the U.S. Supreme Court ruled in Atkins v. Virginia that defendants with intellectual disability—then known as mental retardation—cannot be executed. The ruling, however, left states with discretion in establishing procedures for determining which defendants have intellectual disability. Some states responded by adopting practices that made it more difficult to prove intellectual disability. In two recent cases, Hall v. Florida (2014) and Moore v. Texas (2017), the Supreme Court struck down other outlier intellectual disability standards that deviated from accepted clinical definitions of intellectual disability. It has never ruled on Georgia's standard of proof. To illustrate the effect of Georgia's outlier practice, Lucas explores the case of Warren Hill (pictured), whom Georgia executed in 2015 even though every mental health expert who had evaluated Hill agreed he had intellectual disability. A state court judge found that Hill had proven his intellectual disability by a "preponderance of the evidence" (more likely than not), the standard employed in nearly every death penalty state. However, the state courts ruled that Hill had not proven his intellectual disability "beyond a reasonable doubt." The U.S. Court of Appeals for the Eleventh Circuit upheld the use of that standard, the U.S. Supreme Court declined to review the cae, and Hill was executed. Lucas concludes, "The absence of a single jury finding of intellectual disability in an intentional murder death penalty case in the nearly three decades of the statutory exemption, and the absence of a single jury finding of intellectual disability in any murder case post-Atkins, leaves little question that Georgia’s statute has failed to protect those with intellectual disability from execution as promised, and as required by the U.S. Constitution and Georgia constitution."

LAW REVIEWS: Predictions of Future Dangerousness Contribute to Arbitrary Sentencing Decisions

In a new article for the Lewis & Clark Law Review, author Carla Edmondson argues that the future dangerousness inquiry that is implicit in capital setencing determinations "is a fundamentally flawed question that leads to arbitrary and capricious death sentences" and because of the "persistent influence of future dangerousness ... renders the death penalty incompatible with the prohibitions of the Eighth and Fourteenth Amendments on cruel and unusual punishment." Edmonson's article, Nothing is Certain but Death: Why Future Dangerousness Mandates the Abolition of the Death Penalty, reviews the pervasive influence of future dangerousness in capital sentencing decisions throughout the U.S., either as a statutory aggravating factor, or as a permissable line of argument that prosecutors may use to encourage a jury to impose a death sentence. Edmondson argues that the practice of considering future dangerousness "impermissibly asks jurors to function as fortune tellers, basing their sentencing determination on the likelihood of some future, unascertained event." The article examines the history of the future dangerousness question, its use in various states, and empirical evidence documenting its inaccuracy, randomness, and powerful impact. Edmonson cites seminal studies conducted in Texas and Oregon, two states in which capital sentencing juries are required to find that defendants pose a continuing threat to society before they may impose the death penalty. Those studies, she writes, demonstrate both the unreliability of expert testimony on future dangerousness and the inaccuracy of jury determinations on the subject. Experts in psychology have long argued that predictions of future dangerousness are junk science, and their use in capital sentencing proceedings continues to create serious constitutional concerns. On February 22, 2017, the U.S. Supreme Court overturned the death sentence imposed in Texas on Duane Buck (pictured), whose trial was tainted by racial bias when the defense's own psychologist testified that Buck posed a future danger because he was black. On August 19, 2016, the Texas Court of Criminal Appeals stayed the execution of Jeffery Wood to permit him to litigate claims that the future dangerousness predictions of the state's expert—who had been expelled from state and national professional associations for his unscientific and unethical future dangerousness predictions in the past—constituted false scientific evidence whose use violated due process. "Often based on unreliable and prejudicial evidence, predictions of future dangerousness undermine the efficacy of any imposed sentence," Edmondson argues. "Its unavoidable influence on life-or-death decisions, and the irremediableness of the problems associated with inaccurate predictions of future behavior, demonstrates why any system of capital punishment is unconstitutional and cannot be applied consistent with the Eight Amendment’s prohibition on cruel and unusual punishment."

Two Studies Find Persistent Discrimination in Jury Selection in North and South Carolina

Two recent studies examining the effects of Batson v. Kentucky found that, despite the Supreme Court's ban on racial discrimination in jury selection, Black jurors continue to be disproportionately removed from jury pools in North and South Carolina. Batson, the case that banned the practice of striking jurors on the basis of race, has garnered recent attention because of a recent Supreme Court case, Foster v. Chatman. In Foster, the trial court denied a Black defendant's challenges to the prosecutor's removal of all Black jurors, saying the prosecution had offered race-neutral reasons for those strikes. Years later, through an open records request, Foster's lawyers obtained the prosecution's jury selection notes, which highlighted the names and race of all the prospective Black jurors, put all of the Black jurors on a list of jurors to "definitely strike," and the Black jurors against one another in case "it comes down to having to pick one of the black jurors." A study by Daniel R. Pollitt and Brittany P. Warren in the North Carolina Law Review found that discriminatory practices similar to those in Foster were widespread in North Carolina capital cases, but repeatedly ignored by the state's courts: "In the 114 cases decided on the merits by North Carolina appellate courts, the courts have never found a substantive Batson violation where a prosecutor has articulated a reason for the peremptory challenge of a minority juror." The authors found that the North Carolina Supreme Court had been called upon to decide jury discrimination issues in 74 cases since Batson was decided in 1986, and that "during that time, that court has never once found a substantive Batson violation." By contrast, they said, every other state appellate court located in the Fourth Circuit had found at least one substantive Batson violation during that period. The authors argue, "Thirty years after Batson, North Carolina defendants challenging racially discriminatory peremptory strikes still face a crippling burden of proof and prosecutors’ peremptory challenges are still effectively immune from constitutional scrutiny." A study of South Carolina capital juries by Assistant Professor Ann M. Eisenberg of the University of South Carolina School of Law found that prosecutors exercised peremptory strikes against 35% of otherwise eligible Black prospective jurors, nearly triple the rate (12%) at which they struck otherwise eligible White prospective jurors. Eisenberg also examined the death-qualification process, which excludes jurors who are opposed to capital punishment from serving on death penalty juries. Eisenberg says death-qualification removes "approximately one-third of the population, most of whom are women and African-Americans" from serving on death penalty juries and "functioned as a substantial impediment to jury service by African-Americans in this study." Eisenberg concluded that "removal of jurors for their opposition to the death penalty stands in tension with a defendant’s Sixth and Fourteenth Amendment Rights and Supreme Court jurisprudence." The combined effects of peremptory strikes and the death-qualification process was even starker. Prior to these strikes, Blacks comprised 21.5% of the prospective jury pool. However, 47% of all Black jurors were removed by one or the other of these strikes, as compared with only 16% of White jurors, reducing the percentage of African Americans in the jury pool to only 14.7%.

Pages