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NEW RESOURCE: Academy for Justice Report on Reforming Criminal Justice Tackles the Death Penalty

The Academy for Justice has recently released a new four-volume study, Reforming Criminal Justice, featuring research and analysis by leading academics and a wide range of proposals for criminal justice reform. The project, funded with a grant from the Charles Koch Foundation and produced with the support of Arizona State University and ASU's Sandra Day O’Connor College of Law, contains more than fifty chapters covering a wide range of subjects within the areas of criminalization, policing, trial procedures, and punishment—including a chapter on Capital Punishment by renowned death-penalty scholars Professors Carol S. Steiker (Harvard Law School) and her brother, Jordan M. Steiker (University of Texas School of Law). The Steikers—authors of the critically acclaimed 2016 book, Courting Death: The Supreme Court and Capital Punishment, explore the challenges in reforming the institution of capital punishment, which they describe as being "in a state of flux and fragility." They attribute the near ten-fold decrease in new death sentences since 1996 and the near 70% decrease in executions since the peak in executions in 1999 to “growing concerns about the fairness, accuracy, and effectiveness of the capital justice process across the United States.” The Steikers point to endemic arbitrariness and unfairness resulting from the wide discretion afforded to prosecutors and juries in death penalty cases. Prosecutorial discretion, they say, has produced “wildly divergent capital charging decisions” between prosecutorial offices, making geography, rather than the circumstances of a murder, the chief determinant of whether a case is capitally prosecuted. In turn, they say, the practice of "death-qualification" allows prosecutors to exclude jurors who oppose capital punishment, and the jurors who are empaneled in capital cases exercise the broad discretion they are afforded to produce unfair sentences disproportionately influenced by irrelevant factors such as race and gender. The Steikers also challenge the notion that the reduced use of the death penalty means it is being used more effectively when it is imposed. They say that the death penalty is not limited to “the worst of the worst,” and so lacks meaningful retributive value, while its continuing arbitrariness impedes any arguable deterrent effect. Indeed, they say, offenders with mental illness are disproportionately represented on death row and continue to be disproportionately executed, despite widespread public support for excluding the severely mentally ill from the death penalty. They further question the accuracy of death-penalty verdicts, citing research that estimates more than 4% of those sentenced to death may be actually innocent. The Steikers argue that these systemic issues are “difficult to adequately address through constitutional regulation or legislative reform,” concluding that “the most appropriate path forward may well be moratorium or repeal, solutions embraced by a growing number of jurisdictions.” For states that opt to retain capital punishment, they recommend three major policy reforms: the establishment of capital defense offices at all levels (trial, direct appeal, and state postconviction) to “improve the delivery of capital representation services” in compliance with the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases; centralized state-wide charging processes to combat the politicization of the death penalty by local prosecutors and the resulting geographic arbitrariness in its appliation; and the adoption of legislation to exclude people with severe mental illness from capital prosecution and execution. 


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BOOKS: Deadly Justice—A Statistical Portrait of the Death Penalty

In their new book, Deadly Justice: A Statistical Portrait of the Death Penalty, a team of researchers led by University of North Carolina-Chapel Hill political science professor Frank Baumgartner uses forty years of empirical data to assess whether the modern death penalty avoids the defects that led the U.S. Supreme Court to declare in Furman v. Georigia (1972) that the nation's application of capital punishment was unconstitutionally arbitrary and capricious. Their conclusion: "A reasoned assessment based on the facts suggests not only that the modern system flunks the Furman test but that it surpasses the historical death penalty in the depth and breadth of the flaws apparent in its application." Deadly Justice explores an enormous range of issues—including, among others, racial, gender, and geographical bias, innocence, deterrence, mental health, childhood abuse, length of time on death row, reversal rates, and execution methods—to determine whether the death penalty is fairly and proportionally applied and reserved for the "worst of the worst." Reviewing the data, Baumgartner et al. find that the modern death penalty "is it just as arbitrary, just as biased, and just as flawed as the pre-Furman system." Worse yet, they write, "it has added to these flaws increased levels of geographical focus on the South, even more concentration in just a few jurisdictions, astronomical financial costs unimagined in the earlier period, average periods of delay now measured in the decades, odds of reversal well over 50 percent, routine and often successful last-minute legal maneuvering even while the inmate is in the execution room and has been prepared to be executed, and a medicalization paradox that was not even imagined in the pre-Furman period." In an interview with the Houston Chronicle, Baumgartner says "[t]he key driver in the system" is not the frequency of homicides or the nature of the murder but "the choices that district attorneys make .... There's really no rhyme or reason to it." He says the biggest change in public opinion began in the 1990s as evidence began to mount that "there might be innocent people on death row. ... The innocence argument has really shaken people's faith that you can count on the government to get it right every single time. ... The system is so tied up in knots, partly because of the concern of executing an innocent person. It's really hard to justify or have enthusiasm about a system so dysfunctional as the current modern death penalty, even if you're a prosecutor."


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BOOKS: End of Its Rope—How Killing the Death Penalty Can Revive Criminal Justice

"The death penalty in the United States is at the end of its rope [and] its abolition will be a catalyst for reforming our criminal justice system." So argues University of Virginia Law Professor Brandon L. Garrett in his widely anticipated new book, End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, which analyzes the reasons behind the steep decline in capital punishment in over the last 25 years. With the help of other researchers at the University of Virginia, Garrett analyzed death-sentencing data from 1990 to 2016, county by county. He found that numerous interrelated factors contributed to the decline: the drop in murders across the country, the creation of institutional capital defender offices that greatly improved the quality of representation, the availability of life without parole as a sentencing option, the cost of the death penalty system, and growing public awareness of exonerations and the risk of wrongly sentencing innocent defendants to death, fueled further by the abolition of capital punishment in some states and the abandonment of capital prosecutions by many counties. Local culture had a profound effect on death sentencing practices: Garrett found that states and counties that most frequently executed people developed what he terms a “muscle memory” for the practice and “imposed far more death sentences just as a function of having done so in the past." But, the converse was also true: when a county stopped sentencing people to death, it was less likely to resume the practice. Garrett found that death sentences have now all but disappeared from rural America, and are now imposed mainly in larger, urban areas. Garrett told the The Marshall Project, "we found a strong county-level pattern of racial bias. Counties with more black residents have more death sentences. And counties with more white victims of murder have more death sentences. Call it a 'white lives matter' effect," he said. In an interview with University of Virginia publicists, Garrett described the death penalty as "a failed experiment." He said states’ recent efforts to reform death-penalty procedures to “save the death penalty from itself” have failed because “the bias, both racial and geographic, is too ingrained. Lawmakers have tried to speed up executions, but have instead seen more delays and botched executions. They have tried to insist on higher-quality proof, and have still seen exonerations of innocent death row inmates." Garrett hopes that as the death penalty wanes, the lessons learned can buttress other efforts to reform America's criminal justice system and to move away from "mass incarceration and harsh punishment more broadly.”


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Pioneers in Efforts to Defend Death-Penalty Cases, End Capital Punishment Remembered in New Book, Obituary

The legacies of Scharlette Holdman (pictured) and Marie Deans—two women who changed the landscape of capital punishment in the United States—are memorialized in a recent story in the Marshall Project and a new book scheduled for release in August. Maurice Chammah's article, We Saw Monsters. She Saw Humans, marks the July 12, 2017 passing of mitigation pioneer Scharlette Holdman and tells the story of her forty-year fight on behalf of capital defendants and death-row prisoners. The forthcoming book by Todd Peppers and Margaret Anderson, A Courageous Fool, tells the story of a similarly pioneering woman, Marie Deans, who long worked to save defendants and prisoners facing the death penalty and whose efforts to give voice to family members, like herself, whose relatives had been murdered, led to the creation of Murder Victims' Families for Reconciliation. Holdman used her background in anthropology to develop the practice of death-penalty mitigation—conducting a multi-generational social history investigation to tell the story of a client's life in a way that would humanize him or her to a jury or a judge. “What she saw is that killers are not just born,” said lawyer George Kendall, who represents death-row prisoners. “They have had unbelievably abused and neglectful lives, and that history is relevant. You become your client’s biographer, you speak to the 60 most important people in that person’s life—friend and foe.” She approached this difficult work with creativity and humor. In one case, she attempted to discredit a psychiatrist's testimony that a severely impaired defendant was competent to be executed because he had beaten the doctor at tic-tac-toe, by locating a tic-tac-toe playing chicken to present in court. The judge “felt that bringing the chicken into the courtroom to play tic-tac-toe would degrade the dignity of the court,” Holdman later told This American Life. “I thought that the dignity of the court was degraded by executing a mentally retarded, mentally ill person.” In 2011, she described mitigation investigations, saying, “As we in local communities began to look for mitigation, we saw it as presenting the narrative of someone’s life, and we became acutely aware that it was a very specialized, complex undertaking. That narrative is not there for the asking. It requires not just knowledge and skill but experience in how you search for, identify, locate, recognize, and preserve the information.” Her work was profiled in the book Among the Lowest of the Dead, an account of Florida's reinstatement of the death penalty. A Courageous Fool describes the work of mitigation expert and anti-death penalty activist Marie Deans to defend death-sentenced prisoners, to free the wrongfully convicted—including Virginia death-row exoneree Earl Washington—and to try to end the death penalty. Virginia Senator Mark Warner called A Courageous Fool, "A powerful story of a Virginia heroine." Deans passed away in 2011. 


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BOOKS: "The History of the Death Penalty in Colorado"

When University of Colorado Boulder sociology professor Michael Radelet began doing research on the death penalty in the 1970s, the noted death-penalty scholar tells Colorado Public Radio, he didn't have an opinion about capital punishment and "didn't know anything about it." After researching issues of race, innocence, and the death penalty, he came to have grave reservations. "I believe the death penalty is about making god-like decisions without god-like accuracy," he told Colorado Matters interviewer Andrea Dukakis. Radelet's latest book, The History of the Death Penalty in Colorado, chronicles the historic use of capital punishment in a state in which the practice is currently under scrutiny. Proponents and opponents of the death penalty both invoke "justice" in support of their positions, Radelet told Colorado Matters. "There's a debate about what 'justice' really means," he said, noting that Governor John Hickenlooper raised important questions about the fairness and accuracy of the death penalty when he imposed a moratorium on executions in Colorado in 2013. Commenting on the book, Hickenlooper said, "Professor Radelet reminds us we are not unique in asking whether our 'experiment with the death penalty' has worked: we have asked this question since our territorial days. The History of the Death Penalty is an insightful examination of the death penalty and whether it has a place in our state." Radelet's book documents each execution in the state since 1859 and explores the systemic concerns that have affected its implementation throughout Colorado's history. A Denver Post book review says: "In what could have been a dismal treatise, Radelet turns this fact-filled book into an absorbing history of Colorado’s flirtation with legal killing."


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BOOKS: "Exonerated" Tells the Story of the Innocence Movement

Exonerated: A History of the Innocence Movement, by Robert J. Norris, describes the rise of the "innocence movement," the lawyers, investigators, journalists, lawmakers, and organizations that have worked to uncover wrongful convictions, educate the public about the problem, and reform the criminal justice system to prevent future mistakes. For the book, Norris interviewed 37 key leaders on the issue, including Innocence Project co-founders Barry Scheck and Peter Neufeld, and Rob Warden, co-founder of Northwestern University's Center on Wrongful Convictions. He also researched major cases, such as the exoneration of Kirk Bloodsworth, the first wrongly death-sentenced person to be exonerated by DNA evidence, and reviewed studies on innocence. Exonerated explores how separate scientific, legal, and cultural developments coalesced, leading to a broader understanding of how technology—particularly DNA testing—and more reliable investigative techniques could exonerate the innocent and combat the risks of wrongful convictions. And the book explains how this greater understanding of wrongful convictions was a catalyst in transforming public attitudes about capital punishment. Richard A. Leo, author of The Wrong Guys: Murder, False Confessions and the Norfolk Four, said, "Exonerated is the definitive account of how the innocence movement transformed public views about the everyday fallibility of the American criminal justice system in the late 20th century, and why preventing the wrongful convictions of the factually innocent remains more important than ever in the 21st century.” 159 men and women who were wrongly convicted and sentenced to death in the United States have been exonerated in the 45 years since the U.S. Supreme Court's decision in Furman v. Georgia overturned existing death-penalty laws in 1972. 


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BOOKS: "The Trials of Walter Ogrod" Chronicles Pennsylvania Possible Innocence Case

Walter Ogrod was convicted and sentenced to death in Philadelphia in 1996 for the 1988 murder of a 4-year-old girl, whose body was found in a discarded television box. Ogrod, who is developmentally disabled, has long maintained his innocence, but despite significant irregularities in the case and amidst allegations of official misconduct, local prosecutors have fought efforts to obtain DNA testing of the physical evidence and to investigate the role a discredited prison informant played in implicating Ogrod. A new book, "The Trials of Walter Ogrod," by Tom Lowenstein chronicles the crime, the trial, and the failures of the criminal justice system in Ogrod's case. The book tells how a Philadelphia homicide detective interrogated the intellectually limited Ogrod for more than 14 hours before Ogrod signed a 16-page confession that was written by the detective and that was filled with emotionally-laden language Ogrod—with an autism spectrum disorder—would not have used. Ogrod's court proceedings have been controversial from the outset. The jury in Ogrod's 1993 trial voted to acquit, but as the verdict was being read, one juror called out that he had changed his mind, causing a mistrial. Before the second trial, Ogrod was placed with a prison cellmate named John Hall, a snitch so notorious for producing confessions that he was nicknamed "The Monsignor." Hall claimed that Ogrod had confessed to him, giving a story that was completely different from the written confession extracted by detectives and used in the first trial. Hall also introduced Ogrod to a second informant, who received leniency in his own case after claiming Ogrod had made a confession similar to the story Hall had reported. Ogrod did not match witness descriptions of the likely perpetrator and no physical evidence linked him to the crime, but a jury convicted him in a retrial in 1996 based upon the informant testimony. A year later, Hall was discredited after being caught fabricating a confession in another high profile Philadelphia murder case. Ogrod's lawyers have sought DNA testing of fingernail scrapings taken from the victim, but prosecutors and courts have blocked their efforts. Philadelphia is in the midst of a campaign for District Attorney, and Lowenstein believes the next person elected to that office should take another look at Ogrod's case and several others like it, in which prosecutors used jailhouse snitches and high-pressure interrogations to obtain convictions. "What I would like to see is the next DA in Philadelphia do a thorough review of death-penalty and life-imprisonment cases from the 1990s," he said. "There was a systemic problem with how that DA’s office was prosecuting people."


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BOOKS: "The Death Penalty As Torture: From the Dark Ages to Abolition"

In his newest book, The Death Penalty As Torture: From the Dark Ages to Abolition, John Bessler chronicles the historical link between torture and the death penalty from the Middle Ages to the present day and argues that both are medieval relics. The book, released on February 17, 2017, asserts that capital punishment is itself a form of torture, despite modern legal distinctions that outlaw torture while permitting death sentences and executions. Bessler draws on the writings of philosophers such as Cesare Beccaria and Montesquieu, who condemned both practices and concluded that any punishment that was harsher than absolutely necessary was unjustifiable. Bringing these historical threads to the modern day, Bessler writes that the availability of highly-secure penitentiaries has made the death penalty unnecessary as an instrument of public safety. He argues that with more than 80% of the world's nations either not conducting executions or barring the death penalty outright, it is time for international law to recognize a norm against the use of the death penalty. Bessler is a professor at the University of Baltimore School of Law whose previous books on capital punishment include Cruel and Unusual: The American Death Penalty and the Founders' Eighth AmendmentThe Birth of American Law: An Italian Philosopher and the American Revolution, and Against the Death Penalty.


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