Inequities and Flaws Present in Capital Punishment Systems - Coursework Example

Capital Punishment Systems Introduction The executioner's work has been interrupted on various occasions in this country since the mid-1960s. Government officials have not sat idly during these enforced periods of inactivity in their execution chambers. Rather, they have busily rewritten capital punishment laws and, more recently, engaged in studies designed to investigate select issues, including actual innocence, ineffective counsel, and race bias in the administration of the death penalty. This decade-long hiatus originated with a moratorium strategy devised by the National Association for the Advancement of Colored People (NAACP) Legal Defense Fund and the American Civil Liberties Union (ACLU), the main goal of which was to create a logjam of death-sentenced prisoners whom the states would be able to confine on death row but not put to death (Haines, 1996). The Supreme Court formalized the court-ordered ban on executions in 1972 when it ruled in Furman v. Georgia that procedures then used to administer the death penalty violated the Eighth Amendment's prohibition against cruel and unusual punishments. Individual justices in the Court's 5–4 per curiam decision were concerned that capital punishment was “selectively applied” against the “poor and despised” (Furman v. Georgia, 240), against racial minorities, or was freakishly arbitrary, and frequently occasioned by poor legal representation for the accused. Executions resumed in 1977, the year after the Supreme Court approved revised death penalty legislation designed to cure the defects noted in the Furman decision. The judicially imposed halt on executions ended dramatically with Gary Gilmore's death by firing squad in Utah (Gilmore, 1995; Mailer, 1980). Thereafter, court rulings caused occasional breaks in individual states' carrying out of death sentences. For example, Texas's busy execution mill slowed nearly to a halt in the mid-1990s as a result of state court litigation, falling from an average of 17 executions annually for each of the 3 preceding years to just 3 in 1996 (NAACP Legal Defense and Educational Fund, 2000, pp. 15–18). When the legal uncertainties were removed as a result of the decision in Ex parte Davis (1996), executions resumed with a vengeance, as Texas put 37 offenders to death in 1997 (Aarons, 1998). For the most part, the major constitutional challenges to death penalty laws appear to be resolved (Acker, 1996), and opponents of capital punishment have shifted their focus away from the courts (Haines, 1996, pp. 79–83) to other venues. In particular, efforts have been directed to the state governors and legislatures. These measures have met with mixed success. The American Bar Association The American Bar Association (ABA) was instrumental in awakening the country to the need to reexamine the administration of the death penalty. This venerable organization called for a national moratorium on executions through a resolution adopted February 3, 1997 (ABA, 1997). The ABA expressed particular concerns about the quality of counsel being provided in capital cases and about issues of innocence and racial disparities in death penalty systems 3 (ABA, 1997; Coyne & Entzeroth, 1996). The ABA reaffirmed its position most recently in a report claiming that “the unfairness already endemic in the system has worsened in the last four and a half years as restrictions on habeas corpus review and the loss of funding for capital resource centers have begun to have a deleterious impact” (ABA, 2001c). The ABA Section of Individual Rights and Responsibilities concluded that “in view of the threat that a flawed death penalty poses to the integrity of the criminal justice system, a moratorium on executions is now, more than ever, a legal imperative” (ABA, 2001c). Other state and local lawyers groups have recently echoed the ABA's plea in their own jurisdictions, including the Pennsylvania State Bar Association (October 31, 1997), the Philadelphia Bar Association (November 25, 1997), the Connecticut Bar Association (June 1998), the New York State Bar Association (March 31, 2001), the Atlanta Bar Association (May 17, 2001), and the Virginia Trial Lawyers Association (June 2001) (ABA, 2001c). The ABA's 1997 call for a national moratorium on executions was principally motivated by the concern that the states had not gone far enough in ensuring the appointment of competent defense counsel in capital cases (Coyne & Entzeroth, 1996). There is no shortage of stories involving scandalous representation provided to indigent defendants on trial for their lives—stories involving sleeping lawyers (Burdine v. Johnson, 2001), intoxicated lawyers (People v. Garrison, 1989), lawyers wholly unfamiliar with death penalty law and procedures (Frey v. Fulcomer, 1992), lawyers making racist remarks about their clients, lawyers who ended up disbarred and even incarcerated shortly after representing their clients, and lawyers lacking the experience and resources to mount any semblance of an effective defense (Bright, 1994). The ineffective service of defense counsel is a root cause of many of the administrative problems associated with capital punishment, and in many jurisdictions it remains an issue in need of urgent attention. A number of factors can be expected to correlate with the quality of representation provided in capital cases, including compensation levels for lawyers and the investigators and experts with whom they work; standards governing experience, training, and overall quality of counsel; whether a specialized capital defense unit is created, or whether a system relying on public defenders or private, court-appointed counsel is utilized; whether trial judges or an independent agency assumes responsibility for appointing attorneys; the number of trial, appellate, and postconviction counsel appointed; and others (Acker & Lanier, 1999; Bilionis & Rosen, 1997; Bright, 1994; Lefstein, 1996; Texas Defender Service, 2000; Vick, 1995). The constitutional standard for assessing ineffective assistance of counsel, adopted in the capital case of Strickland v. Washington (1984), 9 falls far short of ensuring top-flight legal representation for capital defendants. Indeed, the Strickland test has disparagingly been referred to as a “cloudy mirror” test: “‘If the defense lawyer breathes on a mirror and it clouds up, he was effective’” (Hengstler, 1987, p. 60, quoting David Bruck; see also Mello & Perkins, 2003). As a consequence, legislative or administrative action that goes beyond the constitutional threshold imposed by the Supreme Court is imperative if meaningful reforms are to be achieved in this vital aspect of capital punishment systems (Acker & Lanier, 1999). There is likely to be no area in need of more urgent attention by commissions with the authority to recommend or enact changes in how the death penalty is administered than the appointment of capable and adequately funded counsel to represent indigent capital defendants. Racial Issues Studies conducted in several jurisdictions have found evidence of racial discrimination throughout the capital punishment process, including charging, jury selection, sentencing, and clemency decisions (Baldus & Woodworth, 2003; Baldus et al., 1990; Baldus et al., 1998; Baldus, Woodworth, et al., 2001; Bowers et al., 2001; Gross & Mauro, 1984; Paternoster, 1991, pp. 115–160; U. S. General Accounting Office, 1990). The Supreme Court, by a 5–4 vote in McCleskey v. Kemp (1987), declined to disturb the administration of the death penalty in Georgia notwithstanding persuasive research evidence, produced by Professor David Baldus and his colleagues, revealing significant statewide race-of-victim disparities in capital prosecutions and sentences. Justice Powell's majority opinion suggested that legislatures, rather than the courts, should be responsive to such disparate sentencing patterns (id. p. 319). The ABA's call for a moratorium on executions was prompted in part by concerns about racial discrimination infecting death penalty systems (ABA, 1997). Race historically has been and continues to be an issue dogging the administration of capital punishment (Liebman et al., 2002) and must certainly be among the issues considered in serious studies of the death penalty. If studies within a jurisdiction reveal that capital-charging or sentencing decisions are skewed on the basis of race of either murder victims or offenders, legislative commissions should accept the Court's invitation in McCleskey and attempt to fashion remedies. Numerous proposals have been advanced to inhibit racial considerations from influencing decision makers in potentially capital cases. Suggestions include greater scrutiny of prosecutorial charging decisions, including the implementation and enforcement of guidelines, narrowing the range of capital murder to only the most highly aggravated killings, for which variables like race are less likely to exert an influence, and adoption of legislation that would create a rebuttable presumption that race impermissibly factored into the decision making in an individual case if evidence demonstrates systemwide patterns of race-of-victim or race-of-defendant disparities in potential death penalty cases (Baldus, Woodworth, & Pulaski, 1994). An important issue in several jurisdictions involves the statutory exclusion of some classes of offenders from death penalty eligibility. The execution of juvenile (i.e., persons under age 18 at the time of their crime) and mentally retarded offenders historically has inspired the greatest controversy, although the Supreme Court has partially stilled the debate by ruling that executing mentally retarded murderers violates the Eighth Amendment (Atkins v. Virginia, 2002). 28 The justices have balked at permitting the execution of 15-year-old murderers (Thompson v. Oklahoma, 1988) 29 but have ruled that the federal Constitution allows capital punishment of offenders as young as 16 (Stanford v. Kentucky, 1989). 30 Fourteen states presently authorize that practice, and five others permit the execution of 17-year-old offenders (Death Penalty Information Center, 2004a). Although the propriety of executing juvenile offenders has a significant normative dimension, related empirical issues—for example, psychological studies of moral and intellectual development, and even deterrence, future dangerousness, and public opinion—also may be relevant to commissions considering that issue (Moon, Wright, Cullen, & Pealer, 2000). Although the Court's ruling in Atkins v. Virginia (2002) has preempted the states from executing mentally retarded offenders, jurisdictions still have latitude in defining mental retardation and diagnosing individuals as meeting or failing to meet those standards. Thus, important definitional and diagnostic issues will merit attention in the states that previously had not exempted mentally retarded offenders from death penalty eligibility. Most death penalty states and federal law allow the sentencer to consider LWOP as an alternative to capital punishment (Death Penalty Information Center, 2004f). In the minority of states that do not, the choice is between death and a life sentence with parole eligibility. It is particularly important that juries understand the true definition of a “life” sentence, including whether “life” means LWOP. When a capital offender's future dangerousness is at issue, due process requires that juries not be kept in the dark that a life sentence truly means LWOP (Kelly v. South Carolina, 2002). Research evidence suggests that jurors making sentencing decisions in capital cases frequently are preoccupied with an offender's likely future dangerousness. They are significantly more likely to impose a death sentence if they believe the offender may be released from prison and thus present a renewed risk to society (Blume et al., 2001). Additional evidence suggests that jurors are likely to speculate that an offender sentenced to life imprisonment will be released after serving a relatively short time behind bars (Bowers, 1993, pp. 167–171). Commissions studying the death penalty in states that do not recognize LWOP should consider recommending that sentencing option as an alternative to capital punishment. Where life imprisonment with parole eligibility is an available alternative, consideration should be given to instructing juries about the minimum sentence a life prisoner must serve before becoming eligible for parole. It is important that juries be fully informed about the practical consequences of their sentencing decisions to avoid capital punishment being based on fanciful fears that convicted murderers will be released to prey on society again after serving only a few years in prison (Acker & Lanier, 1995a, p. 58). A fresh look at death penalty statutes should invite consideration of a wealth of additional legislative reforms. Both state commissions (e.g., the Capital Case Commission in Arizona, the Illinois Governor's Commission on Capital Punishment, the Indiana Criminal Law Study Commission, the JLARC in Virginia) and scholars (Symposium, 2002) have called for careful reexamination of the reach of capital punishment legislation and corresponding statutory procedural safeguards. A host of statutory issues should be revisited in light of the states' experiences with the death penalty and burgeoning capital punishment scholarship, including definitions of capital murder, the specification of aggravating and mitigating factors, evidentiary matters, sentencing procedures, and competency for execution, among others. Conclusion The death penalty triggers intense emotions from both supporters and detractors. Hard facts about the death penalty will not silence an essentially endless debate about its propriety (Kalven, 1968) but should prove valuable to help inform the related policy judgments that must inevitably be made (Acker, 1993). The business of death penalty commissions or, in their absence, of independent researchers and policymakers should be to carefully map the full roster of issues relevant to the practice of capital punishment, systematically collect reliable information about those issues, and make the resulting information available for use in the policy arena. The issues should include the marquis ones involving innocence, defense counsel, and race, but should go beyond those as well. We have identified several additional matters appropriate for investigation, including appellate and postconviction judicial review of capital convictions and sentences; clemency decisions; the economic costs of the death penalty; the reasons for and the consequences of long-term death row confinement of condemned prisoners; deterrence; the future dangerousness of convicted murderers; the selection and decision-making practices of capital juries, including the role of judicial instructions; prosecutorial charging discretion and misconduct; the statutory exclusion of certain categories of offenders from death penalty eligibility, including juveniles; the available sentencing alternatives to the death penalty, including LWOP and the meaning of life sentences; and the impact of capital punishment on innocent victims, including the relatives of both homicide victims and condemned offenders. Collecting objective and reliable information about how capital punishment systems operate is a necessary starting point (ABA, 2001b). How that information should be used in combination with the normative issues surrounding the death penalty is appropriately left to legislative and, where relevant, judicial bodies. Our plea is a simple one: to assemble and make available trustworthy data about the full range of empirical issues implicated by a jurisdiction's capital punishment system. It is our belief that when the true facts are marshaled and fully penetrate the public conscience, they cannot help but tip the scales radically against capital punishment. We anticipate that death penalty systems will crumble under the combined weight of their own inefficiencies and inequities (Acker & Lanier, 2003). Others may disagree, or may conclude that whatever problems are exposed are remediable, or even inconsequential. Until the debate is fully informed by the totality of available empirical information, which we consider to be a crucial mission of study commissions and social science researchers, the legitimacy of death penalty systems remains very much at issue. Works Cited Acker, J. R., & Lanier, C. S. (2003). Beyond human ability? The rise and fall of death penalty legislation. In J. R.Acker, R. M.Bohm, & C. S.Lanier (Eds.), America's experiment with capital punishment: Reflections on the past, present, and future of the ultimate penal sanction (2nd ed., pp. 85–125). Durham, NC: Carolina Academic Press. American Bar Association. (2001a, Summer). The death penalty: Real lives in the balance. [ Special issue, electronic version]. Human Rights, 28Retrieved June 14, 2002, from http://www. abanet. org/irr/hr/summer01/summer01.html American Bar Association. (2001b, June). Death without justice: A guide for examining the administration of the death penalty in the United States. 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Report regarding implementation of the American Bar Association's recommendations and resolutions concerning the death penalty and calling for a moratorium on executions.. Georgetown Journal on Fighting Poverty, 4, 3–51. Haines, H. H. (1996). Against capital punishment: The anti-death penalty movement in America, 1972–1994. New York: Oxford University Press. Read More