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.”

Four years after intellectually disabled brothers Henry McCollum and Leon Brown were exonerated of the 1983 rape and murder of an 11-year-old girl in North Carolina, jurors in McCollum's case met with members of his defense team and reflected on how they sentenced an innocent man to death. In a September 6 op-ed in the Raleigh News & Observer, Kristin Collins—Associate Director of Public Information for North Carolina’s Center for Death Penalty Litigation and a former News & Observer reporter—writes that the jurors’ responses varied from relief, to shame, to fear of God’s wrath, to tears at he pain of even thinking about the case. “All [the jurors] were denied the information they needed to reach a fair verdict,” Collins observed. “I’ve been trying to figure out, where did we go wrong?,” one juror told Collins. “I feel like we got duped by the system,” he said. McCollum and Brown—age 19 and 15, respectively, at the time Sabrina Buie was raped and murdered—were convicted and condemned for her death in 1984. The main evidence against them were coerced confessions obtained during prolonged interrogations. Brown spent eight years on death row before the Supreme Court declared the death penalty unconstitutional for children under age 16, and his sentence was reduced to life imprisonment. But McCollum remained on North Carolina’s death row for more than 30 years, having lost of all his court appeals, until DNA evidence uncovered by the North Carolina Innocence Inquiry Commission disclosed that neither he nor Brown had raped and killed the young girl. At the time of his release in 2014, McCollum was North Carolina’s longest-serving death-row prisoner. The op-ed sheds light on how the gruesome facts of the case produced an unjust verdict and death sentence. Jurors recalled the graphic crime-scene photos and McCollum’s confession, which it turns out had been written by the police. “Even McCollum’s defense attorneys admitted his guilt, believing the jury would spare him if he accepted responsibility,” Collins writes. One juror believed that if McCollum was on trial, he’d probably done it: “his biggest regret,” Collins wrote, “is that he trusted prosecutors to tell the truth.” And what the jury did not know was of overwhelming importance. “No one told the jury that another, almost identical crime was committed just a month after the girl’s murder — and that the culprit was not McCollum, but a man who lived by the field where her body was found,” Collins writes. “The jury didn’t know fingerprints were found at the scene, and that none of them were McCollum’s. They didn’t know the case against McCollum started with a rumor from a teenage girl, who later admitted she made it up.” Collins reports that the jurors “remembered McCollum at the defense table, silent and unresponsive, like a confused and broken child.” One seemed especially remorseful. “I should have followed my conscience,” she said. “I hope he can forgive me.”

In the latest episode of our Discussions with DPIC  podcast, Keelah Williams (pictured), assistant professor of psychology at Hamilton College in New York, joins DPIC executive director Robert Dunham to discuss the implications of new research on the death penalty and resource scarcity. “Resource scarcity” is a concept from evolutionary psychology that examines individual and social responses to environmental conditions in which resources are limited. “[E]cological variables can affect our behavior in really striking ways, and this often is happening at an unconscious level," Williams said. She and an interdisciplinary team of researchers from Arizona State University (where Williams earned her Ph.D. and J.D.) thought the concept provided “an exciting opportunity to see whether environmental factors might also play a role in how people think and feel about the death penalty.” Williams describes the team’s findings that countries with greater resource scarcity and income inequality are more likely to have a death penalty. The team discovered a similar phenomenon in the U.S., finding that “states with lower life expectancy and lower per capita income were more likely to have the death penalty, and ... this relationship wasn’t explained by other variables like how politically conservative the states were or state murder rates.” Williams also discusses two experimental studies the team conducted to assess the extent to which perceptions of economic scarcity or abundance affect individuals’ views of capital punishment. That research found that study participants who had been shown information and images of economic hardship tended to be more supportive of the death penalty than those of the same political ideology and socioeconomic status who had been given information and images about economic prosperity. She explains the results, saying, “If your resources are limited, then you have to be more choosy in how you invest them. So, in the context of punishment decisions, we think this means you become less willing to risk repeated offending, and more favorable towards punishments that eliminate the threat.” Although the team‘s research focused on resource scarcity, Williams says it also has relevance in explaining how race may affect views of capital punishment. “We think that people are trying to figure out what the potential future value is of the offender because that’s the information that helps them to evaluate the costs and benefits of getting rid of someone versus keeping them around.” Race, and “whether someone is in your ‘in-group’ or your ‘out-group,’” she says, “can play a role in these kinds of calculations.” This, she believes, may lead to harsher punishment of individuals perceived as belonging to the out-group and discretionary acts of leniency that favor individuals who are members of the in-group, and may cause individuals to feel more threatened when a member of their favored group is killed. Williams says that perhaps “the most interesting take-away from our study is that these features of our environment really can influence the way that we feel and the way that we behave, and can do so in ways we are not necessarily consciously aware are happening.” This raises problematic constitutional and policy questions about the arbitrariness of the death penalty’s application across the United States. “If these extraneous factors, like the state of the economy, are influencing people’s attitudes about something as important as how they feel about the death penalty and their willingness to impose death over life,” Williams says, “[t]hat’s something we, as a society, need to consider if we’re comfortable with.”

The Louisiana Supreme Court has unanimously overturned the conviction of death-row prisoner Brian Douglas Horn (pictured), after Horn’s lawyer conceded—over Horn’s explicit objection—that his client had killed and also may have molested 12-year-old Justin Bloxom. The September 7, 2018 ruling is the latest fallout in Louisiana from the U.S. Supreme Court’s decision earlier this year in McCoy v. Louisiana, which declared that such concessions violate a defendant’s Sixth Amendment right to counsel. Prior to and during trial, Horn told his lawyer and filed motions with the court saying that he did not want to concede guilt or admit he committed the crime. Horn’s lawyer ignored his client’s objections, telling the jury during closing argument, “We know that Brian Horn killed Justin Bloxom.… I’m not asking you to let him walk the streets. I’m not asking you to find him ‘not guilty.’” Instead, counsel suggested that Horn was guilty of either second-degree murder or manslaughter, neither of which carry the death penalty as a possible punishment. Louisiana Chief Justice Bernette Johnson wrote that this concession denied Horn the assistance of counsel in his defense and was a “structural error” that required overturning the conviction. “While conceding guilt in the hope of avoiding a death sentence may be a reasonable strategic decision in some cases, the decision to do so belongs to the defendant,” she said. The ruling echoed the language of Justice Ruth Bader Ginsburg's 6-3 opinion for the Court in McCoy in which she stated, “With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt.” In dissent, Justice Samuel Alito likened the issue to “a rare plant that blooms every decade or so. Having made its first appearance today, the right is unlikely to figure in another case for many years to come.” However, a friend-of-the-court brief filed by the Louisiana Association of Criminal Defense Lawyers in connection with McCoy’s case described a pattern of Louisiana state court rulings that have permitted capital defense counsel to concede guilt over their clients’ express objection or required capital defendants to represent themselves to avoid having their lawyer concede guilt. In a media statement at the time of the McCoy decision, his lawyer, Richard Bourke, said, “[w]hile rare in the rest of the country, ... Mr. McCoy’s was one of ten death sentences imposed in Louisiana since 2000 that have been tainted with the same flaw.” On June 25, in another of those cases, the U.S. Supreme Court vacated the Louisiana Supreme Court’s decision upholding the conviction of death-row prisoner Jeffrey Clark and returned the case to the state court for reconsideration in light of McCoy. Prosecutors in Horn’s case must now decide whether to appeal the decision and whether to again seek the death penalty if they retry the case.