H.E. Miller, Jr. and Bradley MacLean, authors of a recent study on the application of Tennessee’s death penalty (https://deathpenaltyinfo.org/news/study-the-death-penalty-in-tennessee-is-a-cruel-lottery), join DPIC’s Anne Holsinger to discuss the findings from their article, Tennessee’s Death Penalty Lottery. Miller and MacLean examined whether death sentences and executions in Tennessee are influenced by arbitrary factors like geography, race, and quality of representation. The application of Tennessee’s death penalty, they find, is still as unconstitutionally arbitrary as any of the systems that were struck down by the U.S. Supreme Court in Furman v. Georgia in 1972.


Anne Holsinger 0:00

A brief note for our listeners. This interview discusses the lethal injection challenge filed by Tennessee death row prisoners, but it was recorded before a Tennessee judge ruled in that case. On July 26, Davidson County Chancellor Ellen Hobbs Lyle ruled against the prisoners, finding that although Tennessee’s proposed drug protocol might cause a prisoner pain, it did not amount to torture. She also found that the prisoners did not prove that there is a readily available alternative to the state’s planned execution method. Attorneys for the prisoners are appealing the decision.

Hello and welcome to Discussions with DPIC. I’m Anne Holsinger, Information and Resource Specialist at the Death Penalty Information Center and today I’ll be speaking with Ed Miller and Bradley McLain, authors of a recent study examining Tennessee’s death penalty. In the study titled Tennessee’s death penalty lottery, Miller and McLean examine the factors that influence death sentences in Tennessee. Ed and Brad, thank you very much for joining us today.

Bradley MacLean 0:58

Thank you for having us.

Ed Miller 0:59

Thank you.

Anne Holsinger 1:00

In your study, you call Tennessee’s death penalty, a cruel lottery. What do you mean by that?

Bradley MacLean 1:05

Those defendants who received the sentences, and particularly those defendants in Tennessee or who are ultimately executed, really chosen at random, the system is completely arbitrary in permanently Georgia. The court talked about how an arbitrary death penalty system which strikes like lightning so infrequently, for no apparent reason why one defendant would get a death sentence or would be executed and most defendants are not, and there’s no rhyme or reason for why a particular defendant is selected. That is essentially like a lottery. The odds that any first degree murder defendant will be sentenced to death and ultimately executed is extremely low — it operates just like a lottery. There’s no rationale. There’s no rhyme or reason for why an infinitesmally small number of defendants are sentenced to death and even a much smaller number are actually executed as compared to all of the defendants are convicted of first degree murder.

Anne Holsinger 2:19

So you actually examine data from all 2514 first degree murder cases in order to develop a thorough picture of Tennessee’s death penalty. What factors Did you look at in those cases? And what sort of patterns did you find?

Bradley MacLean 2:33

The first thing we did was try to locate all of the first degree murder cases. Those are all cases in which defendants were convicted of first degree murder over the past 40 years from the middle of 1977 when Tennessee’s death penalty system was installed, at least through June of last year. At the time, we published the report and our article, we had discovered 2000 over 2500 cases of those only 86 of the defendants received sustained death sentences, those are death sentences that have been so far upheld on appeal, many of those cases are still under review. And only six out of those 2500 defendants were actually executed during that period. In our study, what we focused on primarily were the geographic location, race and the number of victims. Those are probably the the most important factors that we looked at.

Anne Holsinger 3:27

You mentioned that among those cases, only 86 death sentences have actually been upheld on appeal, and just six people have been executed. Do you think that someone looking at these facts in those cases would be able to tell them apart from the cases that didn’t result in death sentences or executions?

Bradley MacLean 3:42

Absolutely not. I thinkthere are two points in our setting number one, is that the death sentence is imposed on a an extremely small fraction of the total number of degree murder cases. Only about 3.5% of those convicted first degree murder receive death sentences, less than three tenths of 1% of the defendants are ultimately executed, one out of 400 are actually executed. The other binding is that there were, I think 339 multiple-murder cases, cases in which the defendants were found guilty of murdering two or more victims. And among those cases, any percent of the defendants received life or life without parole sentences, whereas only 10% of the multi murder cases received to the death sentence. Also, if you look at mass murder cases, Tennessee defines mass murderers three or more victims — only nine out of 56, or less than 9% of those cases got the death sentence and over 90%- 91% got life sentences. Over 60% of those who received death sentences were convicted of only single victim murders and about 10 of those defendants were convicted of felony murder and sentenced to death. So if you were to take a felony murder a single victim case, and a felony murder is one in which there’s no intention or premeditation, and you compare it with some of the multi murder cases, several of the multi murder cases that we have, in which the murders were clearly premeditated, and horrible, very heinous type cases, you would see that there’s really no way of discerning which ones would receive the death sentence and which ones won’t. The majority of multi murder cases receive life sentences. So from our perspective, the most important metric to compare would be multi-murder cases. And I think that demonstrates that there are no consistently applied standards for distinguishing those few who are sentenced to death and ultimately executed from those who are sentenced to life.

Ed Miller 5:59

I think there’s one factor that’s very important. Not necessarily unique to Tennessee, there are 95 counties in Tennessee, we do not have a unified court system and only one of those counties, are there any guidelines for determining when the prosecutor will seek the death penalty. So you have 94 counties without guidelines of when to seek the death penalty. And therefore, it becomes very arbitrary on the part of the prosecutor, when to seek the death penalty. And Brad has spoken of the multiple murder cases and we can see a multiple murder case in certain counties. And we can anticipate that there will not be a death penalty because the prosecutors don’t seek the death penalty, whereas in other counties, the prosecutor on single murders will seek the death penalty.

Anne Holsinger 6:51

So I think you’re beginning to address this with the issue of geography but if the severity of the crime doesn’t tell you which cases resulted in death, and which didn’t, what factors do predict a death sentence?

Bradley MacLean 7:02

The problem is that you cannot make a prediction — and that’s that’s the whole point. What we have done is I think we’ve identified various factors that contribute to arbitrariness. In other words, factors that will enter into the reasons why some people get the death sentence and most people don’t. The bottom line is the people who get the death penalty are the most vulnerable, not the ones who commit the worst crimes. There are a number of factors that enter into the arbitrariness of the death penalty here. One obviously is geographic disparity. For example, Tennessee is a if you look at it on a map, it’s like a wide rectangle, and Tennessee is divided into three grand divisions: east, middle, and west. In the middle ground division, for example, which includes more people population than the other two, than either the other. It two includes Nashville, which is the largest city — there’s not been a new death sentence since February of 2001. So we’ve gone about 17 years without a death sentence in the middle grand division, whereas in the western grand division, which includes Memphis, most of the death sentences come out of Memphis now. We have a much higher number of death sentences. Generally speaking, we have very few if any death sentences in rural counties, if we have distances now it’s usually in more populated counties. That’s a factor and that has to do with perhaps the racial makeup of the county, it has a lot to do with the district attorney and with the politics involved. Another factor is race. 44% of the defendants who have received sustained death sennteces were black. 17% of Tennessee’s population is black, but over the past 10 years there have been 10 new death sentences, and eight of those death sentences have been imposed on black defendants. So 80% of those who have received the death sentence over the past 10 years are black. So the racial disparity is, is increasing as the use of the death penalty is decreasing, so that’s a that’s a factor. I think another factor is mental illness and intellectual disability in a capital trial. mental illness or intellectual disability can be a strong, powerful mitigating circumstance that would argue against the death sentence, but those defendants who suffer from mental illness and intellectual disability are less able to defend themselves, are less able to assist their defense attorneys. They are more vulnerable to interrogation by the police and they are less able to present themselves in a favorable manner before a jury or before the judge. The vast majority of defendants on death row suffer from severe mental illness, and a large number of them suffer from borderline intellectual disability, so I think that’s a major factor. Another factor that we discovered, we looked at the voting patterns among judges. Werie in the Sixth Circuit, the Federal Sixth Circuit Court of Appeals. All of these cases go in the federal court on habeas corpus, and we looked at the voting patterns on the judges within the Sixth Circuit, the voting patterns are very skewed by whether the judges were appointed by Republican administrations or by Democratic administrations. Those who are appointed by Democratic administrations and 90% of their votes overall, were cast in favor of federal habeas petitioners in capital cases whereas 90% of republican appointed judges, of the votes cast by them, 90% were cast in favor of the prosecution — and that is a huge disparity. We didn’t analyze disparity and voting among judges or how judges and state court judges decide cases. But we know just from our own experience, that the bias of a judge influences the case from pre trial motion practice all the way through the appellate process. So, we believe that and I think our statistics show that judge bias has a lot to do with the disparity. But all of these different factors are arbitrary factors that are not related to the nature of the crime or the criminal background of the defendant.

Anne Holsinger 11:50

To address the geography issue just a little bit more in depth, in your study, you mentioned specifically that Shelby County has contributed disproportionately to death sentences. Do you have any sense of what it is about Shelby County that has led to that disparity?

Ed Miller 12:07

It’s a very minority populated county. I think the blacks are in the majority of the population. When you look at it, you draw the conclusion that there may be some racial prejudice, as opposed to other counties throughout the state that are more rural. The populations are have fewer minority people and more white-oriented, but there seems to be a relationship. It’s hard to totally connect, but that’s one conclusion you come to.

Bradley MacLean 12:38

Shelby County has a higher crime rate, but the county is economically depressed. And as Ed mentioned, there’s a considerable amount of racial tension in Shelby County. After all, that’s where Martin Luther King was assassinated. And the prosecution there, the main prosecutor is very aggressive and secret the death penalty as compared to other prosecutors.

Anne Holsinger 13:02

So you addressed the appeals process a little bit talking about the disparity between judges and who appointed them and we know that the appeals process addresses issues of arbitrators in individual cases by reversing death sentences and even convictions. But do you think that those reversals address the systemic question of arbitrariness?

Bradley MacLean 13:21

No, absolutely not. It is important to point out and I think this goes to problem with arbitrariness it is important that the majority of capital cases have been reversed or the sentences have been vacated, either on appeal or or state post conviction review or federal habeas — 55% have been reversed and only 45% of cases have been sustained. But that doesn’t address the problem. Perhaps one of the most significant factors contributing to arbitrariness is the lack of resources and competency among defense lawyers who handle these cases. Representing a capital case is unique, it requires, is a very highly specialized area of of practice. It requires certain types of knowledge and skill that other areas of practice don’t require. The fact is that in Tennessee and I believe this is true throughout the country, there are very few criminal defense lawyers who really have the competency to properly handle a capital case. Additionally, they lack the resources. These cases require tremendous resources, investigative resources, expert witnesses, mental health experts, mitigation specialists, and so forth. Tennessee simply doesn’t provide adequate resources to the defense of these cases. Out of the 192 cases resulting are defendants who have received death sentences, 55 of those cases have resulted in reversals due to ineffective assistance of counsel. But there are a lot of cases and I’ve personally been been involved in a number of them, in which the courts have not vacated the sentences and not granted relief, notwithstanding what I believed was a strong showing of ineffective assistance of counsel. The so called Strickland test for an effective system counsel places a very heavy hard burden of proof on the defense, on the petitioner, to demonstrate an effective assistant counsel sufficient to set aside a sentence. So I would say that in the vast majority of capital cases in Tennessee, the defense representation was inadequate. Another area of arbitrariness involves the practice of the prosecution. There have been a number of cases in Tennessee, half a dozen or so cases, in which death sentences were set aside because of prosecutorial misconduct, but we know that a lot of prosecutorial misconduct is simply not discovered because many times the prosecution doesn’t turn over exculpatory evidence and we don’t know about that. We don’t discover what evidence they don’t turn over, but we also know that there are other cases where the courts have been presented with evidence of prosecutorial misconduct, but still, they find that it’s not material or not prejudicial, even though we believe that it was. So that’s another area for arbitrary decision making and we have not seen any improvement in the role of the prosecutor, the behavior of prosecutors in cases just because of the few reversals that have occurred. So we have seen no evidence that the system is becoming less arbitrary. Now it is true as I mentioned before, that we have seen a tremendous decline in the use of the death penalty in Tennessee over the past, as I mentioned, 10 years there have only been 10 new death sentences. Over the past four or five years there’s only been to new death sentences in Tennessee and that’s a good development from our perspective. But on the other hand, when you have such an infrequent application of the death penalty, it creates more opportunity for arbitrariness because there clearly are no standards that are consistently applied to separate those who received the death sentence from those who don’t.

Anne Holsinger 13:31

What do you think is responsible for that decline in death sentences? And do you expect that that trend will continue in the future?

Bradley MacLean 15:35

I think it’s going to continue but I can’t predict that for sure. There are a couple of reasons why that trend has occurred. First of all, about 1520 years ago, Tennessee enacted life without parole. I think that with life without parole, prosecutors may not feel the need to seek the death penalty as much and juries are not as likely to return a death sentence if they can sentence the defendant to life without parole instead. Another development in Tennessee is even a life sentence defendant is not eligible for parole or release until after he served a minimum of 51 years. I’ve started to conduct another study of life sentences and I’m only aware of one inmate in Tennessee who survived more than 50 continuous years of incarceration, so even a life sentence now is a minimum of 51 years. I also believe that our evolved standard of decency in Tennessee is away from the death penalty. People are not as interested in pursuing the death penaty, the general population is not as keen on the death penalty as they were before. So I think there’s been a clear shift in public opinion in Tennessee away from the death penalty, and I think that that has permeated throughout the system. So I think that’s reason and finally I think another reason is that these cases, I mean, everybody understands anybody who looks at the system understands that it’s broken different people may think it’s broken for different reasons, but you know, the average length of time that our death row population has lived on death row is 22 years, right now. We have three execution dates set in Tennessee, between now and the end of the year, and each one of those defendants have been on death row for over 30 years — one has been on death row for over 36 years. People see that the death penalty really doesn’t serve any purpose, that has something to do with it and then I also think that the prosecution and the public are not interested in investing the resources in prosecuting a capital case and then defending it for years and years afterwards. So particularly in more rural counties or counties that don’t have the resources, there’s not as much interested in pursuing the death penalty. So I think there are a number of factors for that decline, but those are some of the factors that I can think of.

Anne Holsinger 20:10

So if you don’t mind briefly stepping outside the scope of your study, Tennessee is preparing to carry out its first execution over eight years. The death row prisoners are challenging the use of a controversial execution drug called midazolam. So we know from all the evidence that you’ve talked about already that Tennessee’s application of the death penalty is really not trustworthy. What do you think that says about whether the public should trust the method of execution?

Bradley MacLean 20:35

The public should absolutely not trust the method of execution. I’ve always felt and I’ve argued in the past that if the state can get a method of execution right, then how can we expect them to get any thing else right about the system? Tennessee, recently adopted three drug protocol involving the use first of midazolam, which is a benzodiazepine, supposedly will render the defendant unconscious during the rest of the process and then they inject paralytic. The paralytic they now propose to use is vercuronium bromide, the paralytic will stop all muscular action and it’s a neuromuscular blocking agent that blocks the nerve impulses from going into the muscle tissue, and so without affecting the central nervous system, it completely paralyzed the person so that the person cannot move, cannot express himself, and yet, he still will be fully conscious if he’s not first rendered unconscious by another drug. And then the third drug is potassium chloride, which according to our experts, delivers the maximum amount of pain throughout the body — it’s like being burned alive. The proof is very clear in our case, we just finished a trial we’re waiting for the judge to make the decision, but the proof is very clear that first drug, midazolam, will not render the condemned inmate insensate to the noxious stimuli that will be caused by the other drugs, and that essentially defendant — it’s almost like chemical waterboarding because they’ll be suffocating to death and then chemical burning because the potassium will burn their insides in an excruciating way. And it’s all covered by a chemical veil, because the paralytic will by paralyzing the person, will disguise from anybody observing the process will disguise any suffering that the defendant will experience during the process. So we consider this a form of torture and so we’re objecting to it, and we’ll see what the results will be but it’s clear that this this protocol will not work. And the other thing that has come out in in the evidence is how carelessly the state put together the protocol. How many things about the process are not spelled out in the protocol, like how to store the chemicals, you know how to deliver the chemicals, how to prepare the chemicals and things of that sort is simply not spelled out in the protocols is a very haphazard kind of protocol. In fact, in the past has been characterized as sort of a cut and paste job, where the state is just basically copied bits and pieces from other state protocols. It’s a horrendous process. I think it says a lot about the entire system.

Anne Holsinger 23:47

Do you have any plans for further research beyond the study that you recently published? And do you expect that if other researchers do similar examinations in other states that they will find similar results?

Ed Miller 23:59

Yes, we will continue this study and we will be in the same format that we’ve been in. We are also very much aware of a study that is being conducted at the University of North Carolina by a political science professor there who’s covering more than just North Carolina — He’s looking at other states. And it’s a slick in it some of the same factors that we’re looking at. Frank Baumgartner is his name.

Anne Holsinger 24:26

Great. Well, we look forward to reading your additional studies. Do you have anything else that you wanted to address?

Bradley MacLean 24:33

Well, thank you very much for interviewing us and we’ve enjoyed it. Our modern death by systems, throughout the country, evolved from the US Supreme Court decision Furman v. Georgia, back in 1972. And in that case, the Court looked at the death penalty systems that came before it and came to the conclusion that those death penalty systems, because they were so called ‘discretionary death penalty systems’ were arbitrary. That is the reason why in Furman v. Georgia, the Court declared that all of the existing death penalty systems in the country at that time were unconstitutional under the Eighth Amendment because they were arbitrary. That is the key point. Subsequently, states went back to the drawing board to try to create systems, capital punishment systems, that would not be arbitrary. And the whole point of our study is to was to look at whether we’ve properly addressed the problem of arbitrariness that the Supreme Court talked about in Furman and our conclusion is that our system is no less arbitrary. It’s just as arbitrary as the systems that existed before Furman was decided. So we have not solve the problem of arbitraryness and that’s why we believe we believe that our study clearly shows that, and that’s why we believe that our system is clearly unconstitutional.

Anne Holsinger 24:33

Well, with that excellent wrap up, thank you so much for joining us and for taking the time to discuss your study. You have some really remarkable data and I hope that our listeners will take the time to take a look at the full text which they can find a link to in the notes accompanying this episode. To learn more about the death penalty, you can visit deathpenaltyinfo.org and to make sure you never miss an episode, please subscribe to Discussions with DPIC in your podcast app of choice.