Idea Transcript
END OF ITS ROPE
END OF ITS ROPE How Killing the Death Penalty Can Revive Criminal Justice
BRANDON L. GARRETT
Harvard University Press
London, England 2017
Cambridge, Mas sa chu setts
Copyright © 2017 by Brandon L. Garrett All rights reserved Printed in the United States of America First printing
Jacket design: Jill Breitbarth
Library of Congress Cataloging-in-Publication Data Names: Garrett, Brandon, author. Title: End of its rope : how killing the death penalty can revive criminal justice / Brandon L. Garrett. Description: Cambridge, Massachusetts : Harvard University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017011498 | ISBN 9780674970991 (alk. paper) Subjects: LCSH: Capital punishment—United States. | Judicial error—United States. | Discrimination in capital punishment—United States. | Life imprisonment—United States. | Defense (Criminal procedure)—United States. | Evidence, Criminal—United States. | Criminals— Rehabilitation—United States. Classification: LCC KF9227.C2 G37 2017 | DDC 364.660973—dc23 LC record available at https://lccn.loc.gov/2017011498
To Kerry
To Kerry
END OF ITS ROPE
1 AN AWAKENING
We can abolish the death penalty. We must abolish the death penalty. Ten years ago, that declaration would have been laughable, just another liberal fantasy. But no more. The death penalty in the United States is at the end of its rope. We can abolish it not in a matter of generations, but in a matter of years. And it is imperative that we do so, for its abolition will be a catalyst for reforming our criminal justice system. In the past decade, death sentences and executions in the United States have declined dramatically, even in those states most eager to legally kill people. No one is quite sure why this is happening— providing an answer is an important goal of this book—but more and more people agree that it is very good news. And it is occurring at a moment when people on the right and left agree that we desperately need to overhaul America’s criminal justice system. Flaws in high-profile death penalty cases are making headlines and shocking the public, and those miscarriages of justice sow doubts about the death penalty, but they can also drive reforms for all types of criminal cases. The decline and fall of the death penalty will save lives, but more important it provides an opportunity to revive the broken American justice system. I will show how a fair defense can mean the difference between life and death, and I will explore
2
|
End of Its Rope
the disturbing implication behind that fact: what about the vast number of non–death penalty cases in which bad lawyers are doing shoddy work and watching their clients go to jail? The death penalty’s demise will allow us to focus on remedying inept lawyering, overzealous prosecution, inadequate mental health treatment, race discrimination, wrongful convictions, and excessive punishments. When the end of the death penalty comes, we can redouble efforts to prevent persistent errors due to false confessions, eyewitness misidentifications, lying informants, and flawed forensic testimony that affect untold numbers of less serious criminal cases. Death penalty cases show how the humanity of a person matters, even for the supposedly “worst of the worst” murderers. We can emphasize rehabilitation for people who commit crimes, offering mercy over punishment—and to end mass incarceration we must do just that. In this book, I will draw a road map from the demise of the death penalty to the many reforms that are so desperately needed.
Choosing Life over Death
John “Jose” Rogers had just been convicted of capital murder in rural Stafford County, Virginia, in 2006. Now his lawyer was asking the jury to spare his life. While there was “no way to make this right,” his lawyer said, “if you lock this man up in the kind of prison that he will be in for the rest of his life, [then] no one can say to you that that’s not justice. It’s justice tempered with mercy.” The jurors deliberated that evening and for most of the next day. Then they announced their verdict: life without the possibility of parole. A Virginia jury had rejected the death penalty. In the Rogers case, the defense lawyers had used a “big firm, New York” approach never tried before in a Virginia death penalty case. They investigated their client intensively, working in a
An Awakening
|
3
five-lawyer team alongside five investigators, searching for information like school report cards or mental health records that might humanize their client. At the four-day sentencing hearing, the team presented twenty-one witnesses and showed how Rogers was the victim of horrifying abuse by his father, who beat and tortured him, making his childhood “a virtual experiment in atrocity, in brutality.” Perhaps most moving was testimony from Rogers’s younger brother, whom he had tried to shelter from the abuse. Jurors initially deadlocked, but they finally reached una nimity and decided to exercise their power of mercy.1 This is not just happening in Virginia. Take the trial of James Holmes, who killed twelve moviegoers and wounded scores more in the notorious Aurora, Colorado, mass shooting in 2012. That jury also chose life without parole, as I describe in Chapter 3. His lawyers used sophisticated methods to carefully select the jury. Over the course of more than four months, the judge winnowed a list of 9,000 prospective jurors down to twelve plus alternates. In the end, two jurors remained on the fence, and a single juror would not budge in opposition to a death sentence, citing Holmes’s mental illness. One of the many shocking facts that come to light when studying the death penalty in the United States is that these cases have rarely evidenced sophisticated or even particularly thorough lawyering. In the 1980s and 1990s, states imposed cut-rate caps on lawyers’ pay, trials were usually short, and courts regularly let death sentences stand even when defense lawyers had fallen asleep in court, showed up drunk, referred to their clients with racial slurs, or admitted they had not prepared for trial. As a direct consequence, states like Virginia became ruthlessly efficient death penalty machines. Virginia has the highest rate of executions of any state and has executed the third-highest number of prisoners in the United States since the 1970s. No one expected the Virginia
4
|
End of Its Rope
death penalty to quietly fade away. Yet in that notoriously toughon-crime state, prosecutors now try to get death sentences far less often than they used to. As of this writing in 2017, there have been no new death sentences imposed since 2011, and five people sit on Virginia’s death row, from a high of over fifty in the 1990s.2
Bending the Arc of Justice
Virginia is a microcosm of what is happening nationwide. After two decades of steady increases, the American death penalty is disappearing, and it has reached the end of its rope. As Figure 1.1 shows, the death penalty experienced a rapid rise but then an inexorable fall. Since the late 1990s, death sentences have declined steadily. This is not limited to high-profile cases or particular states. Nineteen states and Washington, D.C., have abolished the death penalty, but thirty-one states and the federal government still have it. Far fewer of those places actually use the death penalty anymore. This is a national decline reaching every death penalty state—even states like Texas, which is alone responsible for over a third of the almost 1,500 executions carried out in the United States since the late 1970s, and over 1,000 of the just over 8,000 death sentences handed down since the late 1970s. There were just four death sentences in Texas in 2016, down from as many as fifty a year in the 1990s. There were only thirty-one new death sentences in the entire country in 2016, the lowest number in more than three decades. With the death penalty ebbing in states like Virginia and Texas, California now produces the highest number of death sentences. While California has the largest death row in the country, it has not had an execution since 2006.3 This sudden decline in the American death penalty came as a total surprise. The arc of justice was supposed to be long and bend only slowly. None predicted that the death penalty in America
An Awakening
|
5
300 250 200 150 100 50 0 1975
1980
1985
1990
1995
2000
2005
2010
2015
Figure 1.1 Death sentences in the United States, 1973–2016. Sources: Bureau of Justice Statistics, U.S. Dept. of Justice; data collected by author.
would come crashing down. Even less appreciated is how this social trend speaks volumes about the present and future of our criminal justice system. After all, our treatment of the “worst of the worst” murderers has implications for how we treat less serious crimes. During the same time period that death sentences were routinely handed down, prison sentences were lengthened, life without parole was expanded (even to juveniles), and “tough on crime” was a political mantra. When I set out to better understand this remarkable turnaround, its causes, and its broader implications, one reason why so few saw it coming became obvious. No one had collected national data on the decline in death sentences. In fact, there was no information at all about which localities and counties stopped
6
|
End of Its Rope
sentencing people to death during the key years of the death penalty decline. I decided to take on the project of hand-collecting that information—from prison records, from death penalty appeals, and by contacting death penalty lawyers around the county. I was not sure what I would find. No single explanation for the death penalty decline seemed plausible.
An Innocence Effect?
Two brothers, Leon Brown and Henry McCollum, spent decades on death row in North Carolina before DNA tests freed them in 2014. Commenting on how the very delays that caused the brothers’ cases to linger in the courts for decades saved the lives of the innocent men, U.S. Supreme Court Justice Stephen Breyer asked the other justices to consider whether the American death penalty was still constitutional. Justice Breyer wondered whether death penalty cases were more error prone, or whether it was that only in death penalty cases did anyone actually look carefully at the facts, because of the life-and-death stakes.4 In Chapter 2, I will describe why wrongful convictions are persistent and inevitable in death penalty cases. The reasons are many, but for now consider just this: twenty individuals have so far been exonerated from death row based on DNA evidence, and many more based on other types of evidence. In each of these cases, the incriminating evidence seemed powerful at the time of trial. I obtained the original transcripts of the death penalty trials of convicts later exonerated by DNA testing. Let me underscore that: DNA testing allows us to know for a certainty that these twenty convicted individuals were innocent. What do their trials tell us? Ten of the twenty exonerees who had been sentenced to death had falsely confessed. Four of those who confessed were intellectually disabled persons who we might expect were highly suggestible and vulnerable to police coercion. At another ten
|
An Awakening
7
trials, testimony came from informants (including jailhouse infor mants) who we now know lied on the stand. At eight trials, eyewitnesses, sometimes more than one, made erroneous identifications. At fourteen trials, government experts presented flawed forensic evidence (for example, hair and bite-mark comparisons). Even in the highest-profile death penalty cases, the government presented a wide range of powerful evidence that was false.5 In addition to the twenty DNA exonerees who had been sentenced to death, over one hundred more have been exonerated from death row based on other types of evidence.6 Countless others, including twenty-eight later freed by DNA tests, received lesser sentences at trial or pleaded guilty to crimes they did not commit to avoid risking the death penalty. Every year more people walk off death row based on new evidence of innocence. We will never know how many innocent people have been executed, but there is strong evidence that several have been in recent years. Still more troubling, these exonerations do not themselves explain the decline in death sentences. Many death penalty lawyers have told me they believe that prosecutors and jurors and judges share growing concerns about wrongful convictions in death penalty cases. That may be true. However, there is no pattern by which states with more exonerations also see greater declines in death sentences. Instead, the states with the most death sentences have the most exonerations. As disturbing as it is that wrongful convictions are an inevitable product of death sentences, exonerations play only a part in America’s turning away from capital punishment.
The Crime Decline
What other factors could be at work here? In Chapter 4, I will explore two national trends that correspond to the sudden decline
8
|
End of Its Rope
in the death penalty. First, murder rates began a remarkable drop across the country in the mid-1990s—the Great American Crime Decline, as law professor Franklin Zimring has called it. The best available data show a stunning decline in murder rates in the early 1990s and, after a spike in 2001 due to the 9 / 11 attacks, a steady decline into the 2000s. Murder rates, like all crime rates, have been falling for years (with an occasional uptick, as in 2015).7 We do not know exactly why. This dramatic decline came just before death sentences dropped. Yet many murders occur in states that do not have or do not use the death penalty. Even in death penalty states, many murders are not eligible for the death penalty, which is in theory reserved for the “worst of the worst” killers. Moreover, when murders increased slightly in the early 2000s, death sentences continued to drop. At the state and county level, I have found a statistical connection between murder rates and death sentencing. The decline in murders clearly played a role in the death penalty decline. The role it played, however, is complex. Texas experienced a sharp drop in death sentences as the number of murders fell, but murders fell even faster in California, where death sentencing remained high. Moreover, at the county level, the connection between murders and death sentences shows a troubling pattern: it is the counties with more white victims of murder that impose more death sentences. Two insights are irrefutable. First, the murder decline certainly shows in stark terms that we do not need the death penalty to reduce murders. Second, perhaps as a result of the decline in murders and crime, death sentences as well as public support for the death penalty have continued to decline. With crime dropping and fewer executions and death sentences, people may increasingly forget why they were ever so insistent that some murderers be sentenced to death. This too has profound implications for reducing punishments more generally in America.
An Awakening
|
9
Life without Parole
Perhaps the death penalty declined because lawmakers changed the law. Many death penalty lawyers told me that introducing life without parole (LWOP) as an option must have changed the calculus for jurors and for prosecutors. People wanted to be assured that life really meant a life sentence. Jurors may have sentenced people to death fearing that with a life sentence, there was a chance that the murderer would walk the streets again someday. Indeed, some death penalty abolitionists have pushed the idea of replacing the death penalty with LWOP. Before 1980 few states had LWOP, but a wave of states adopted it during the same “tough on crime” era when the death penalty was rising in use. In Chapter 4, I reject LWOP as a primary explanation; it only weakly corresponds with any decline in state death sentences. For example, in 2005 Texas was the last death penalty state to introduce LWOP—last, in part, because many prosecutors worried that it would make juries less likely to impose the death penalty. Yet when LWOP was adopted, the death penalty was already on the decline in Texas, and that did not change. Nor was there a change in other states. Oklahoma, for example, adopted LWOP in 1988 but then saw a sharp rise in death sentences.8 Meanwhile, as I describe in Chapter 7, something far more troubling has happened as LWOP has taken hold across the country: life rows have mushroomed in size, dwarfing the population of death rows even at their height. Texas now has almost 800 people serving LWOP and 9,000 more serving life with parole, most of whom will in practice never receive parole (meaning they are serving what I refer to as “virtual life” sentences).9 We have replaced the death penalty with a virtual death penalty whereby hundreds of thousands of people are assured to die in prison. There is a hidden tragedy in this trend—namely, that the attention given to discovering
10
|
End of Its Rope
miscarriages of justice drops off precipitously with LWOP. Here, then, is one urgently needed reform: the death penalty, LWOP, and “virtual life” must all be replaced with a system in which rehabilitation in the outside world is always a possibility.
It Takes a Team
Another possibility is that the underappreciated work of defense lawyers has made it harder for prosecutors to win death sentences. On the ground, in the states that provide minimally adequate resources, defense lawyers have done more with less and radically improved how they litigate death cases. A stark example is Virginia. The number of capital sentences in Virginia first began to drop right after the legislature created four regional Capital Defender offices. The offices have staff specially qualified to investigate and litigate death penalty cases. In Chapter 5, I describe what I learned by reading all the Virginia death penalty trials from the past de cade. The offices adopted that “big firm, New York” approach, and they started to win case after case, usually by avoiding a trial, but also by winning most trials when they occurred. Over the years, the Supreme Court has increasingly emphasized the importance of adequate defense counsel, but for decades the courts routinely allowed people to be executed despite egregiously bad lawyers—even lawyers who fell asleep during a capital trial.10 Other states, like Florida, have done little to provide adequate resources for capital defense, and those states have not experienced such sharp declines in death sentences. The death penalty persists in the places that deny the defense the ability to put up a fair fight. One can only wonder about all of the non–death penalty cases in which hapless lawyers for poor defendants remain totally outgunned. Moreover, death penalty defense teams can cost less than the private lawyers that judges appoint. The teams heavily rely
An Awakening
|
11
on nonlawyers, particularly investigators skilled in locating social services records, medical records, and school records. They can uncover sensitive information about family sexual abuse, mental health problems, brain injuries, and alcohol and substance abuse. It takes a team to compile someone’s entire life story. Death penalty cases highlight how social workers can humanize a person in a way lawyers cannot when working alone. There is an implication here for our entire criminal justice system: when defendants have the resources to tell their story, they can show why they do not deserve harsh punishment.
Tightening the Death Belt
If all politics is local, as Tip O’Neill once famously said, criminal justice is only more so. To really understand why and how the death penalty is declining, one has to look within states at the individual counties where death sentences are still imposed. I explore this shifting geography in Chapter 6, sharing findings that stunned me. The decline has not occurred only at the state level; very few counties still have death sentences. And it is easy to predict which counties do not. The smaller, poorer counties no longer seek the death penalty. What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger ones, with an entrenched pattern of seeking the death penalty. These are also counties that tend to have large black populations. Overzealous prosecutors in large counties obtain death sentences that add up to disturbing patterns of racial bias: such patterns have defined the local geography of the death penalty for decades. The handful of counties that engage in death sentencing do respond to murder rates, but they sentence more people to death if they experience more murders with white victims. A form of “muscle
12
|
End of Its Rope
memory” dominates death sentencing: counties that sentence people to death are far more likely to keep doing so. The flip side is that once counties stop death sentencing, they are also likely to remain free of death sentences. These deepening trends, as fewer counties impose death sentences, seem likely to stay fixed in place. The few counties that still sentence people to death are national outliers more than ever before. Only sixteen counties in the entire country sentenced on average more than one person to death a year from 2010 to 2015. These included counties like Caddo Parish, in northwest Louisiana, where the prosecutor emphatically says they should “kill more people.” Also included is Los Angeles County, California, which leads the country in death sentences, followed by Harris County, Texas. As a judge once put it, “Texas is called the Death Belt. Harris County is the buckle.”11 Even the leading death counties, though, have seen sharp declines in sentences in recent years. In 2016, only twenty-seven counties sentenced people to death, and only one, Los Angeles County, sentenced more than one person to death. Should a handful of counties keep an entire state’s execution machinery going? More generally, mass incarceration in this country results from decisions by officials to impose long prison terms rather than pursue shorter terms or rehabilitation. The dispersed geography of the death penalty provides a lesson: we should not let a few counties set extreme and biased punishments that we all pay for in the end. Fair criminal justice cannot remain entirely local.
Executions
Joseph Wood “gulped like a fish on land” while his lawyers argued on the phone with the Arizona attorney general. They were asking the judge to call off a botched execution. After two hours
An Awakening
|
13
fi
and thirteen doses of drugs that the state was supposed to give just once, Wood died and the judge ended the call.12 Executions remain in total disarray as states botch executions using untested drugs bought from shady sources and employing shoddy, secretive techniques. Indeed, executions have declined even faster than death sentences. In 2016, states carried out only twenty executions. State moratoria on executions, due to the inherent lack of a humane way to conduct executions, explain this only in part. As I describe in Chapter 8, executions are even more geographi cally arbitrary than death sentences; just a handful of counties in the entire country carry them out. Furthermore, executions are even more racially skewed than death sentences. Only a small fraction of the over 8,000 death sentences imposed since the 1970s have resulted in executions; many have been reversed on appeal or commuted to life sentences. Many prisoners languish on death row inde nitely. These days the chances of dying of natural causes or suicide on death row are greater than the chances of being executed.
A Dif fer ent Death
America’s death penalty has been turned on its head, and I explore the end game for the death penalty in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country.13 I am not sure it matters when or whether the U.S. Supreme Court abolishes the death penalty legally. The death penalty will have largely disappeared with a whimper before any such bang, due to the hard work of lawyers and a growing realization, in part driven by declining crime, that
14
|
End of Its Rope
the death penalty serves no useful purpose. The people have spoken. Death penalty cases have long provided a bellwether for American attitudes toward criminal justice. In the heyday of the death penalty, lawmakers passed national and state legislation stripping away prisoner rights to address concerns about endemic delays in death penalty cases. In Texas, “Ashley’s Law,” which created a sex offender registry, was passed in reaction to a death penalty case: one in which the man convicted was later exonerated by DNA testing. Lawmakers sped up appeals in death penalty cases, cut off funding to defense lawyers, and created hypertechnical procedural barriers for appeals and habeas. In contrast, today, lawyers have uncovered so many errors that exonerations have contributed to a “new death penalty debate.”14 Open-file discovery, forensic science improvements, videotaping of interrogations, and other reforms have flowed from concerns about wrongful convictions, particularly in death penalty cases. Indeed, Texas—yes, Texas—is now the poster-child state for reforms to prevent wrongful convictions. A law reform commission named after exoneree Timothy Cole prompted a raft of reforms, including eyewitness identification procedures, forensic science improvements, and sweeping rules requiring prosecutors to give the defense police records and other discovery. Following a lengthy trial, the jurors chose a life without parole sentence in the Aurora Theater shooting trial after hearing from a battery of experts describing the defendant’s severe mental illness. In a non–death penalty case, though, top lawyers and doctors might never get called. The “death is different” mantra long demanded special rules and resources for death penalty cases, but lawmakers are beginning to make use of the tools developed in capital cases to reform the entire system. A new reliance on pretrial mental health screening takes lessons on the importance of mitiga-
An Awakening
|
15
tion from death penalty cases to all our jails and prisons, which are disproportionately filled with mentally ill and disabled people. The team-based approach in death penalty cases is catching on not just in life without parole cases, but in public defense more broadly. I conclude in Chapter 10 by describing what this means for criminal justice in America. Today, states are creating drug courts and mental health courts, using evidence-based approaches to release low-level offenders, helping prisoners with reentry, reducing barriers to employment, and focusing resources more on rehabilitation than on punishment. A long list of states, both red and blue, in the southern heart of the death penalty, in the West, and in the Northeast are now adopting reforms. These include Alaska, Georgia, Ohio, Oklahoma, Kentucky, Maryland, Mississippi, Texas, and dozens more. States are saving billions of dollars by reducing incarceration, and those same states are experiencing the largest reductions in crime.15 Ending mass incarceration will require taking these “smart on crime” approaches farther, though, since most prisoners did commit a violent offense, but with rehabilitation they need not do it again. If we provide the tools, the death penalty will end, having unraveled on the weight of its own injustices. The same tools that have all but driven the death penalty into the ground, like consistent statewide teams of defense lawyers, an opportunity to humanize a person accused of a crime, and careful investigations of the facts, can then be harnessed to more broadly restore criminal justice in this country. Only by succumbing to fear did we drive up death sentences in the 1980s and 1990s, and we have little to show for that experiment in mass death sentencing. At the same time, we created the world’s largest prison system in the land of the free. Now we know better. We can respond to crime by preventing it and by rehabilitating people, rather than by imposing severe punishments out of a sense of helplessness.
16
|
End of Its Rope
More than the reform of our own criminal justice system hangs in the balance. Most countries around the world have already abolished the death penalty, and because of our adherence to the practice, they no longer look to America for moral leadership in criminal justice. After the fall of the death penalty, we can begin to reclaim our role as a standard-bearer for fairness. At a time when some politicians seek to stoke punitive emotions, it is impor tant to remember how we have all but escaped the self-defeating cycle of punishment in death penalty cases. We did it once and we can do it again. Our supersized mass-incarceration system needs a crash diet—and the end of the rope for the death penalty can give criminal justice renewed life.
4
|
End of Its Rope
death penalty to quietly fade away. Yet in that notoriously toughon-crime state, prosecutors now try to get death sentences far less often than they used to. As of this writing in 2017, there have been no new death sentences imposed since 2011, and five people sit on Virginia’s death row, from a high of over fifty in the 1990s.2
Bending the Arc of Justice
Virginia is a microcosm of what is happening nationwide. After two decades of steady increases, the American death penalty is disappearing, and it has reached the end of its rope. As Figure 1.1 shows, the death penalty experienced a rapid rise but then an inexorable fall. Since the late 1990s, death sentences have declined steadily. This is not limited to high-profile cases or particular states. Nineteen states and Washington, D.C., have abolished the death penalty, but thirty-one states and the federal government still have it. Far fewer of those places actually use the death penalty anymore. This is a national decline reaching every death penalty state—even states like Texas, which is alone responsible for over a third of the almost 1,500 executions carried out in the United States since the late 1970s, and over 1,000 of the just over 8,000 death sentences handed down since the late 1970s. There were just four death sentences in Texas in 2016, down from as many as fifty a year in the 1990s. There were only thirty-one new death sentences in the entire country in 2016, the lowest number in more than three decades. With the death penalty ebbing in states like Virginia and Texas, California now produces the highest number of death sentences. While California has the largest death row in the country, it has not had an execution since 2006.3 This sudden decline in the American death penalty came as a total surprise. The arc of justice was supposed to be long and bend only slowly. None predicted that the death penalty in America
18
|
End of Its Rope
under pressure and had only repeated what police told him they wanted to hear. Prosecutor Britt questioned him on the stand:
“Didn’t that touch your soul at all when that little girl was down on the ground hollering?”
“It didn’t touch my soul because I didn’t kill nobody,” said McCollum.
“It doesn’t touch your soul now, does it?”
“Because I ain’t killed nobody. I want to tell you something, Joe Freeman, God got your judgment right in hell waiting for you.”
Robeson County had the highest murder rate in North Carolina in the mid-1980s, and some of the most high-profile murders, particularly of blacks and Native Americans, had gone unsolved. At the time, a journalist described the county as a “land where fear and violence are so pervasive that nearly everyone owns a gun,” and where there was a simmering distrust of law enforcement. A local journalist, referring to the prosecutor, Joe Freeman Britt, put it this way: “We abide by our own set of rules here that has nothing to do with the Constitution of the United States or the Constitution of North Carolina. It’s a monarchy. Old Joe’s in charge.”4 On Tuesday, September 26, two days after the eleven-year-old girl went missing, the police spoke to McCollum, a nineteenyear-old intellectually disabled African-American. He lived in New Jersey but was visiting his mother in Red Springs. McCollum denied knowing anything about a murder. The next day a neighbor saw a stained white sweater in a ditch near her house, and then another family friend helping to search the area found the girl’s
|
Inevitability of Innocence
19
body in the soybean field. The police chief called the State Bureau of Investigation (SBI), which specialized in forensics work. An SBI specialist arrived that evening. First, he took photographs of the body: “The female was on her back, face up. The legs were spread apart.” There were “scratches, marks, on the body and debris, leaves and sticks and stuff like that in the hair of the black female.”5 The weeds had been flattened in the area. He saw several sticks on the ground that had blood on them, and matches, and a cigarette butt from a Newport brand cigarette. He saw a piece of plywood on the ground. To test the plywood he used a field kit, with a type of paper that shows a “pink reaction for the presence of blood.” The test came out positive. On the opposite side of the bean field, he found three cans of Schlitz Malt Liquor, the “tall-type of beer cans,” and a plastic holder for the six-pack they came in.6 As night approached, law enforcement wrapped the body in a white sheet, placed it in a body bag, and transported it to the medical examiner’s office in Chapel Hill, North Carolina, to conduct an autopsy. The SBI agent watched as the medical examiner removed “the inner part of the throat area.” The agent then saw two things that were not visible at the crime scene. He “noticed first there was a stick protruding through . . . two different locations through the neck.” Next, the pathologist “made an incision . . . and there was her panties, a pair of panties.”7 The pathologist “had to pull the panties out and the stick was connected to the panties.” The forensics work continued. The beer cans were fingerprinted, and the analyst sent the prints to the SBI laboratory in Raleigh, North Carolina, along with the cigarette butt, matches, and sticks from the scene. A rape kit was prepared, and the samples were also sent to the SBI lab.8 The police began to talk to everyone in town to learn more about what had happened. Police interviewed a local seventeenyear-old three times and gave him a polygraph. He denied knowing
20
|
End of Its Rope
anything about the murder, and police ultimately concluded that he was being truthful.9 At 9:10 p.m. the police picked up McCollum and took him to the station. They fingerprinted him and talked about unrelated things for about an hour. Then the police asked him point blank: did he murder the girl?
The Interrogations
Henry McCollum was in the police chief’s office with the door shut for hours. When a suspect is in custody, the police must give the well-known set of warnings that the Supreme Court required in Miranda v. Arizona, informing the person of their constitutional rights under the Fifth and Sixth Amendments to remain silent, to request a lawyer, and the like. The police observed that rule. As an officer recalled at trial, McCollum was read each of his rights, and he put his initials next to each on the provided form. He also signed a form stating that “[n]o pressure or coercion of any kind” was used against him. This was all quite typical. Suspects rarely invoke their Miranda rights, even innocent suspects. Nor is it clear that juveniles fully understand what those rights mean. At this point McCollum was not under arrest, and if the police had conveyed to him that he was free to stop talking and leave, he would have done just that. Instead, for over four hours three officers interrogated McCollum. During the interrogation, he was given three soft drinks and “went to the restroom twice.” The office from the state crime lab recalled McCollum being composed the entire time.10 Finally, the police took a statement from him, though the crime lab officer “actually did the writing.” Why him? He wasn’t a detective. But he was intimately familiar with the crime scene.11 Nothing was recorded during the entire conversation. Instead, the police typed up the statement for McCollum to sign.
Inevitability of Innocence
|
21
The minute the statement was signed, McCollum “started out the door of the police department.” When asked why, he said, “That officer there told me I could leave.” The officer had told him three different times that if he cooperated he could leave. But now that he had confessed, he “was not free to leave then.” He was placed under arrest.12 Meanwhile, the police asked Leon Brown, McCollum’s half brother, to come to the station too, which he did, along with his mother and sister. Brown was a juvenile—just fifteen years old. The officers put Brown in the adjacent room, where they normally conducted Breathalyzer tests; the department was too small to have a dedicated room for conducting interviews. At trial, the officer read the statement that he had taken that night from Brown. “Leon states this past Saturday night, while his sister Geraldine and her boyfriend, Lewis, were out . . . Darrell and Chris Brown came walking down the street in front of his house, as he walked out onto the street and met them.” Next, “Darrell said, ‘We’re going to get [the victim] and rape her.’ Then he said, ‘We’re going to kill her after we rape her.’ Leon said, ‘I ain’t going. I’m going home, Man.’ Then the other person spoke and said, ‘We’re with Darrell, ain’t we?’ ”13 According to the police-recorded confession, Brown demonstrated to the police how the victim fought back when the panties were put down her mouth, and how she was breathing when she died.14 The officers typed up a confession statement for Brown to sign. The officer recalled at trial how Brown had said, “I don’t read too good.” The officer said he “[r]ead each line. As I went through I stopped. I stopped at least 20 times and paused and asked him if that was correct, if that was right.” Leon Brown “signed each page and signed the end of the statement.” The officers never asked why Brown was in the seventh grade, despite being fifteen years old. They supposedly never learned that he was in special classes for
6
|
End of Its Rope
sentencing people to death during the key years of the death penalty decline. I decided to take on the project of hand-collecting that information—from prison records, from death penalty appeals, and by contacting death penalty lawyers around the county. I was not sure what I would find. No single explanation for the death penalty decline seemed plausible.
An Innocence Effect?
Two brothers, Leon Brown and Henry McCollum, spent decades on death row in North Carolina before DNA tests freed them in 2014. Commenting on how the very delays that caused the brothers’ cases to linger in the courts for decades saved the lives of the innocent men, U.S. Supreme Court Justice Stephen Breyer asked the other justices to consider whether the American death penalty was still constitutional. Justice Breyer wondered whether death penalty cases were more error prone, or whether it was that only in death penalty cases did anyone actually look carefully at the facts, because of the life-and-death stakes.4 In Chapter 2, I will describe why wrongful convictions are persistent and inevitable in death penalty cases. The reasons are many, but for now consider just this: twenty individuals have so far been exonerated from death row based on DNA evidence, and many more based on other types of evidence. In each of these cases, the incriminating evidence seemed powerful at the time of trial. I obtained the original transcripts of the death penalty trials of convicts later exonerated by DNA testing. Let me underscore that: DNA testing allows us to know for a certainty that these twenty convicted individuals were innocent. What do their trials tell us? Ten of the twenty exonerees who had been sentenced to death had falsely confessed. Four of those who confessed were intellectually disabled persons who we might expect were highly suggestible and vulnerable to police coercion. At another ten
Inevitability of Innocence
|
23
vices records. The defense must investigate the types of complex forensics often collected in murder cases. The costs are far higher for prosecutors, too. In the high-profile Scott Peterson case, in Modesto, California, the prosecutor’s office spent over 20,000 hours preparing, with thirty-three employees working on the case, including five lawyers and seven investigators.18 In federal courts, prosecution costs are over two-thirds higher than defense costs; after all, the prosecution must put on all the evidence of guilt, including any forensic or medical evidence, crime scene evidence, and evidence from the detectives about their investigation. Then again, unlike the defense, the prosecution has substantial help. State attorney general offices have death penalty specialists who can consult on cases and who handle appeals and habeas. They have the resources of the police and the state crime laboratory. Medical examiners and mental health experts await their call. A defense lawyer appointed by the judge, like the ones in McCollum and Brown’s case, must largely work in the dark, without the records from all those police investigators, and if the judge provides the funds, must put a team of experts and investigators together from scratch. Today, most criminal cases are plea-bargained. A prosecutor has a choice whether to go forward to a trial or not. Back in the 1980s, though, it was required in North Carolina that a prosecutor seek the death penalty when there was evidence of at least one aggravating circumstance (and there were many in this case).19 Nor was life without parole an option. Not until 1994 would North Carolina pass a law that made life without parole available as an alternative to the death penalty in a capital murder case. With mandatory death charging, death sentences were being mass-produced in the 1980s and 1990s in North Carolina. This was also true across the country, and mostly within a Southern “death belt.” Figure 2.1 illustrates how death sentences have been completely dominated by the Southern states.
24
|
End of Its Rope
350
Capital Sentences
300 250 200 150 100 50 0 1980
1985
1990
1995
2000
2005
2010
2015
Year West
Midwest
South
Northeast
Figure 2.1 Capital sentencing by region, 1979–2016. Source: Data collected by author.
Even small counties like Robeson County, North Carolina, held death penalty trials routinely. From 1977 to present, twenty-one people were sentenced to death just in Robeson County. Over the years, most of those death sentences were reversed in the courts, and just two people were executed. Still more surprising is why the incentives to seek so many flawed death sentences were put in place to begin with.
No Longer Cruel and Unusual
By the early 1970s the death penalty in the United States seemed to be waning, perhaps disappearing. Executions had dropped from over 150 per year in the 1930s to about seventy per year in the 1950s and fewer than fifty per year in the 1960s.20 By the early 1970s, no executions were occurring. Death sentences had also declined, from about 140 per year in the 1930s and 1940s to about
Inevitability of Innocence
|
25
100 per year in the 1960s. And of those, only one in four resulted in an execution; most were commuted or pardoned, and many others were reversed on appeal or habeas.21 Six states abolished the death penalty, and others narrowed it sharply.22 The U.S. Department of Justice opposed the death penalty. Many leading national groups, religious organizations, and newspapers announced their opposition to the death penalty, and opinion polls showed that most of the country opposed it.23 And yet ten years later, by the early 1980s, when Brown and McCollum were prosecuted, the death penalty was in full swing in North Carolina and other key states. What changed? Enter the Supreme Court. The court struck down the death penalty in Furman v. Georgia in 1972, holding that the Eighth Amendment of the Constitution forbade the death penalty as “cruel and unusual punishment,” with the justices divided in their reasoning.24 Justice William Brennan emphasized that the death penalty was imposed in an arbitrary manner in a “trivial number of cases in which it is legally available.”25 Justice Thurgood Marshall emphasized that the “burden of capital punishment falls upon the poor, the ignorant, and the under privileged members of society.”26 However, the three other concurring justices believed that the death penalty was unconstitutional only because the death penalty laws at the time were arbitrary and gave largely unfettered discretion to jurors to decide whether or not to impose the death penalty.27 As Justice Potter Stewart put it, the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” because the death penalty was “so wantonly and freakishly imposed.”28
Reacting to the Supreme Court In reaction to the Supreme Court’s decision, North Carolina did not get rid of the death penalty. Instead, the state tried to put its
26
|
End of Its Rope
thumb in the Supreme Court’s eye, and its legislature passed a statute making the death penalty mandatory for first-degree murder. North Carolina’s death row grew and grew. By the mid1970s, at 120 inmates it was the largest death row in the country.29 The Supreme Court held in 1976 that this mandatory death penalty law was unconstitutional.30 But in Gregg v. Georgia the court reversed course and said a state can impose the death penalty so long as a law, such as Georgia’s, provided guidance to the jurors in deciding whether the death penalty was appropriate.31 Following Georgia’s lead, as most other death penalty states did, in 1977 North Carolina passed a new death penalty statute that tried to comply. North Carolina was not out of the woods yet, though. In 1979, the state had to change its statute when the Supreme Court held that the death penalty could not be imposed for rape, but only for murder.32 And in 1990 the Supreme Court struck down a North Carolina rule that every one of the twelve jurors had to agree that a mitigating factor was present.33 Meanwhile, public support for the death penalty began an ascent, with polls showing 75 percent or more of adults supporting the death penalty through the mid-1990s. This change accompanied a record increase in violent crimes. High-profile murders drew sustained media attention. Presidential candidates, starting with Richard Nixon, made law and order a central theme.34 When the death penalty was brought back in full form in the late 1970s, out from under the cloud of the U.S. Supreme Court’s ruling in Furman, the Lumberton, North Carolina, prosecutor continued his personal death penalty “blitz.”
The Trial Begins
Selecting a jury in a death penalty case is very different than in any other type of criminal case. The jury must be “death qualified.” The
10
|
End of Its Rope
miscarriages of justice drops off precipitously with LWOP. Here, then, is one urgently needed reform: the death penalty, LWOP, and “virtual life” must all be replaced with a system in which rehabilitation in the outside world is always a possibility.
It Takes a Team
Another possibility is that the underappreciated work of defense lawyers has made it harder for prosecutors to win death sentences. On the ground, in the states that provide minimally adequate resources, defense lawyers have done more with less and radically improved how they litigate death cases. A stark example is Virginia. The number of capital sentences in Virginia first began to drop right after the legislature created four regional Capital Defender offices. The offices have staff specially qualified to investigate and litigate death penalty cases. In Chapter 5, I describe what I learned by reading all the Virginia death penalty trials from the past de cade. The offices adopted that “big firm, New York” approach, and they started to win case after case, usually by avoiding a trial, but also by winning most trials when they occurred. Over the years, the Supreme Court has increasingly emphasized the importance of adequate defense counsel, but for decades the courts routinely allowed people to be executed despite egregiously bad lawyers—even lawyers who fell asleep during a capital trial.10 Other states, like Florida, have done little to provide adequate resources for capital defense, and those states have not experienced such sharp declines in death sentences. The death penalty persists in the places that deny the defense the ability to put up a fair fight. One can only wonder about all of the non–death penalty cases in which hapless lawyers for poor defendants remain totally outgunned. Moreover, death penalty defense teams can cost less than the private lawyers that judges appoint. The teams heavily rely
28
|
End of Its Rope
anything about the Schlitz Bull Malt Liquor beer or a plastic holder for beer cans?” he responded, “No, sir. I had never been to the crime scene.”40 Another officer in the interrogation room knew everything about the crime scene, though: the agent from the State Bureau of Investigation. He was there, one of the officers stated, to “either confirm or deny the truth as it came out,” since he was so knowledgeable about the crime scene.41 The SBI agent was also the one who wrote down McCollum’s statement, while the other officers supposedly asked the questions. Before the jury could hear about the confessions, the judge addressed the defense argument that the confession statements were coerced, involuntary, and in violation of the Fifth Amendment of the U.S. Constitution. The judge began by noting that each of the defendants “voluntarily went to the police station” to be questioned, that each was given and signed “a written waiver of rights form,” and that “the answers of the defendant and each of them as given to the respective officers were not incoherent and were sensible.” The judge emphasized: “[N]either officer made any threat or show of violence and made no act which suggested violence.”42 None of this was surprising. Judges rarely rule that a jury cannot hear about a confession statement. The U.S. Supreme Court’s test for whether someone has been coerced in violation of the right against self-incrimination under the Fifth Amendment looks to the “totality of the circumstances.”43 Even in cases like this one, in which police interrogated vulnerable individuals, both young and intellectually disabled, judges rarely grant relief. After all, if this judge barred the confession statements, the prosecution would not have any kind of a case, and a murder might go unpunished. Once a police reads the suspect the famous Miranda
Inevitability of Innocence
|
29
warnings and the suspect waives their rights and speaks to the police, like almost all people do, it is very difficult to challenge a confession in the courts, even if the confession is false.44
Confessions and the Death Penalty
It was not at all unusual that this death penalty case revolved around confessions. They frequently prove quite important in death penalty cases and death-eligible cases. Why? In murder cases there may be no eyewitnesses. After all, McCollum and Brown supposedly said that the victim was killed to prevent her from reporting the rape to the police. There may not be any smokinggun forensic evidence, and this was especially so in the days before DNA tests. The only way to prove that the murderer did it may be to get a confession. Police are trained to do just that. Put differently, they interrogate to get a confession, not to test the truthfulness of the suspect’s story. While police may not conduct lengthy interrogations in routine criminal cases, they will leave no stone unturned in a murder investigation. For that reason, studies of death penalty cases have long found that they are dominated by confessions. A recent study of the Connecticut death penalty by law professor and economist John J. Donohue found that 59 percent of the death-eligible murders since 1973 involved confession statements made to the authorities, and in addition, 43 percent involved incriminating statements to third parties.45 The classic study of the Georgia death penalty led by professor David C. Baldus found that 29 percent of cases in a sample of 1,066 murder and voluntarymanslaughter cases involved incriminating statements by the defendant or a co-perpetrator.46 I found that half of the twenty DNA exonerations of persons who had been sentenced to death
30
|
End of Its Rope
nationwide involved false confessions.47 Police may use particularly coercive interrogation tactics in death penalty investigations.48 In 2003, Governor George Ryan of Illinois granted clemency to all 163 people on death row in the state, including complete pardons for people on death row who had confessed and alleged that their confessions were due to outright police torture.49 In fact, those death penalty cases were only part of an epidemic of tortured confessions coming out of Chicago.50
Taking the Stand
Every criminal defendant has a right to testify in his own defense, though it isn’t always a good idea. Some defendants are not very sympathetic or articulate. However, both Brown and McCollum took the stand at trial. They both denied any knowledge of the detailed facts concerning the crime, from the way the victim was killed, to the location of the crime, to a plank of wood that the victim was found lying on, to the Newport cigarettes smoked at the crime scene, to the six-pack of Bull Malt Liquor Schlitz found at the scene.51 Under a barrage of questioning by the prosecutor, Henry McCollum denied his guilt no less than 226 times.52 He said that the officers “tricked me into signing a statement,” without knowing what was in it, after police said that he could leave if he signed it.53 He said the police were “hollering, cursing, calling me a black nigger, calling me all kind of names.”54 Leon Brown testified that the officers told him, “You’re doing to go to the gas chamber if you don’t start signing your name,” and “You telling me you killed the damned girl and you know it.”55 Brown said he signed every page, being told all the while, “You could be going home if you would go ahead and get this over with.” He explained, “I ain’t knowing what I was doing . . . I couldn’t read it. I couldn’t understand it.”56
An Awakening
|
13
fi
and thirteen doses of drugs that the state was supposed to give just once, Wood died and the judge ended the call.12 Executions remain in total disarray as states botch executions using untested drugs bought from shady sources and employing shoddy, secretive techniques. Indeed, executions have declined even faster than death sentences. In 2016, states carried out only twenty executions. State moratoria on executions, due to the inherent lack of a humane way to conduct executions, explain this only in part. As I describe in Chapter 8, executions are even more geographi cally arbitrary than death sentences; just a handful of counties in the entire country carry them out. Furthermore, executions are even more racially skewed than death sentences. Only a small fraction of the over 8,000 death sentences imposed since the 1970s have resulted in executions; many have been reversed on appeal or commuted to life sentences. Many prisoners languish on death row inde nitely. These days the chances of dying of natural causes or suicide on death row are greater than the chances of being executed.
A Dif fer ent Death
America’s death penalty has been turned on its head, and I explore the end game for the death penalty in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country.13 I am not sure it matters when or whether the U.S. Supreme Court abolishes the death penalty legally. The death penalty will have largely disappeared with a whimper before any such bang, due to the hard work of lawyers and a growing realization, in part driven by declining crime, that
|
32
End of Its Rope
to the suggestion that the police told the boys what to say and coerced them into confessing. There was no way that “the officer just sat down and made up these statements,” he responded with outrage.62 In the absence of DNA evidence, murder cases often come down to a jury’s faith in the procedures and practices of the police. Prosecutors know it is an exploitable faith. McCollum’s and Brown’s defense lawyers had “attempted to put on trial” none other than the “hardworking police officers” who had tried to solve this murder, the prosecutor declared. Those officers had “no reason to tell you anything but the absolute truth.”63 The word verdict, the prosecutor went on to note, “comes from two Latin words, ‘vertis’ and ‘dictari.’ ” When you “slam the two together you get the word ‘verdict’ which just simply means to speak the truth.” In this case, “the verdict that speaks the truth in this case is that these defendants . . . are guilty of a cold-blooded, malicious, vicious sex murder.”64 After hearing instructions on the law from the judge, the jurors retired to deliberate. They deliberated that afternoon, and the same day, at 6:32 p.m., they returned. The foreman announced that by a unanimous verdict they had found Henry McCollum and Leon Brown guilty of first-degree murder and first-degree rape.65 Shortly thereafter, the jury sentenced them to death.
The Justices
“From this day forward, I no longer shall tinker with the machinery of death,” wrote Supreme Court Justice Harry Blackmun in 1994, ten years after the brothers’ trial, famously announcing his newfound conclusion that the American death penalty could never be saved from arbitrariness and error. Justice Blackmun added that “human error is inevitable,” and “our criminal justice system is less than perfect.”66
Inevitability of Innocence
|
33
What about “the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat,” Justice Antonin Scalia raged in response, though McCollum’s case had not quite yet reached the Supreme Court. “How enviable a quiet death by lethal injection compared with that!” He accused Justice Blackmun of imposing his own personal views and politics on the Constitution.67 The North Carolina courts had reversed the brothers’ convictions in 1988 on appeal due to an error in the jury instructions about whether the jury had to find either one of them guilty, or each of them separately guilty. Guilt by association is not constitutional. Nevertheless, after new trials, in 1991, McCollum was again sentenced to death, and Brown was resentenced to life in prison.68 When McCollum’s case did reach the Supreme Court, in 1994, Justice Blackmun insisted that although the crime was “abhorrent,” there was “more to the story.” After all, McCollum had “an IQ between 60 and 69 and the mental age of a 9-year-old. He reads on a second-grade level.” Justice Blackmun wrote, “This factor alone persuades me that the death penalty in his case is unconstitutional.”69 Yet the Supreme Court denied relief. McCollum and Brown both remained in prison.
Exonerated
“Get to know Henry McCollum. He RAPED AND MURDERED AN 11 YEAR OLD CHILD,” screamed the political ads in North Carolina in 2010, attacking a “criminal coddler” candidate who supported a law to examine whether the death penalty was racially discriminatory. If that law passes, McCollum “might be moving out of jail and into your neighborhood sometime soon.”70 The law did pass. The ads may have had some effect, though, because the then majority leader of the general assembly and an
34
|
End of Its Rope
attorney general candidate were both defeated after being the subjects of the flyers.71 Decades later, McCollum’s case was still a poster child case for death penalty supporters in North Carolina. In September 2014, a standing ovation shook the walls of the Robeson County courtroom, with relatives of Henry McCollum and Leon Brown weeping for joy. The judge ordered their convictions reversed. A special guest sat in the room. Judge I. Beverly Lake, Jr., several years after stepping down as chief justice of the Supreme Court of North Carolina was now sitting quietly in the audience rather than on the bench. Before he retired, Judge Lake left a remarkable legacy. He spearheaded the creation of the North Carolina Actual Innocence Inquiry Commission in 2007, the first of its kind in the country, an independent agency whose job it is to investigate potential wrongful convictions. The Center for Death Penalty Litigation, a nonprofit law firm that represents death row prisoners in North Carolina, had been pushing for years to get cigarette butts and other crime scene evidence from the McCollum case tested, but the lawyers had run up against a wall: police had repeatedly insisted that the evidence was all lost. The box had been sitting in storage that whole time. Unlike the Center for Death Penalty Litigation, however, the Innocence Inquiry Commission had the power of the state behind it, and it had responded to frantic letters from McCollum’s sister. The commission’s investigators tracked down the box and conducted DNA tests. The tests cleared both brothers and implicated another man, who lived a block away from the murder scene and had confessed to another rape and murder in the town of Red Springs. Indeed, the commission uncovered that the investigators initially requested that a fingerprint from the Schlitz beer cans be tested to see if it matched that other man; the test was apparently never conducted. Based on the DNA tests, the commission recommended that the court reverse both brothers’ convictions. The two left the
16
|
End of Its Rope
More than the reform of our own criminal justice system hangs in the balance. Most countries around the world have already abolished the death penalty, and because of our adherence to the practice, they no longer look to America for moral leadership in criminal justice. After the fall of the death penalty, we can begin to reclaim our role as a standard-bearer for fairness. At a time when some politicians seek to stoke punitive emotions, it is impor tant to remember how we have all but escaped the self-defeating cycle of punishment in death penalty cases. We did it once and we can do it again. Our supersized mass-incarceration system needs a crash diet—and the end of the rope for the death penalty can give criminal justice renewed life.
|
36
End of Its Rope
we now know lied on the stand. Some defendants, like Nicholas Yarris, had several jailhouse informants testify against them. Eight cases involved eyewitness identifications, including identification from multiple eyewitnesses, all of whom were mistaken about what they had seen. Kirk Bloodsworth was the first to be exonerated, from Maryland’s death row: five eyewitnesses had misidentified him. Fourteen of the cases involved forensic evidence, including a series of cases with unreliable and flawed forensics. Ten cases had microscopic hair-comparison evidence, a type so unreliable that the FBI and crime labs in several states are conducting full audits into decades of testing and testimony based on such evidence. Two more had quite similar fiber comparisons. Two had still more notoriously unreliable bite-mark comparisons, a type of forensics that the scientific community has stated should not be used to identify individuals until meaningful research is done to validate it. Some involved more than one type of unreliable forensics. The crime lab analysts, who typically worked for law enforcement, often described the forensics as though they were “smoking gun” evidence, telltale traces pointing straight to the murderer. After reading each of the transcripts of their trials, I wanted to understand whether these DNA exonerations were atypical death penalty cases or not. Do all death penalty cases rely on such shaky evidence, like coerced confessions, jailhouse informants, and flawed forensics? Or do most death penalty cases involve little question about guilt, but rather questions about whether a guilty murderer is so irredeemable that he deserves to be executed? I began looking close to my home at the death row in Virginia. Virginia has executed the third-most individuals since the 1970s, after Texas and Oklahoma, and has executed more people than any other state, if you include its colonial history. Of the five individuals on death row in Virginia at the time of this writing in
|
Inevitability of Innocence
37
2017, two of the cases involved confessions and two involved informant testimony.72 Most of them also involved contested issues surrounding claims of intellectual disability and mental illness. Today, far fewer death penalty cases go to trial in Virginia than did in the 1980s and 1990s. Only twenty-one death penalty trials occurred from 2004 through 2015. These recent cases did not involve bulletproof evidence. Although in five cases the defendant pleaded guilty to capital murder, followed by a trial on the issue of sentencing, some still involved questions about guilt: seven of the twenty-one cases involved innocence defenses. Two others involved claims of self-defense. One case involved a conviction for murder-for-hire, based on the testimony of the person who stabbed the victim, and who received a plea in exchange for cooperation.73 Fourteen of the recent Virginia cases involved some type of forensic evidence, from ballistics to cell phone records to modern DNA testing. Sometimes the DNA was quite definitive. In one case, for example, a “cold hit” in a DNA databank linked a man to two murders.74 However, less precise forms of forensics were still being delivered with exaggerated certainty at recent capital trials. For example, in one trial, ballistics testimony was presented by a forensic analyst as follows in the closing arguments: “When I say it’s a ballistic match, the round that was found in his apartment, the ballistics that were taken from these men matched to the exclusion of every other weapon on the planet.” The prosecutor added, “No mistake. No room for doubt.”75 This was classic overclaiming by a forensic analyst. That testimony was not scientifically accurate; at best, the analyst could say that the ballistics look similar or “match” in some way, but not that the round absolutely came from a specific gun. In a 2009 report, the National Academy of Sciences explained that “with the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown
|
38
End of Its Rope
to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”76 Eleven of the recent Virginia trials had informants. In some cases, the defendants argued that jail house informants had lied; for example, a lawyer argued that a confession statement was forged by a jailhouse informant.77 Four of the Virginia cases had eyewitnesses. Death penalty cases also continue to heavily rely on unrecorded confessions. Eight of the twenty-one recent Virginia capital trials involved confessions or admissions to law enforcement. Six involved confessions by people held in police custody, and two more involved statements to the police that were self-incriminating but not made in custody. Of the six cases involving custodial confession statements, only two were entirely recorded, and one more was partially recorded. In one case, the detective said he took a short written statement that included a series of details about the crime scene and the murders, but did not audio- or videorecord a statement because “he was not comfortable doing that.”78 The failure to record those interrogations may have resulted in more prolonged litigation about guilt. Despite the fact that high-profile false confessions have come to light in DNA exonerations, most agencies in Virginia still typically do not videotape interrogations.79
Death Charged
“This was the worst experience of my professional life. It still haunts me,” recalled the former first assistant district attorney for McLennan County, Texas. He was recalling the case of Calvin Washington, tried for capital murder in Waco, Texas, in 1987, and exonerated by DNA tests fourteen years later. The prosecutor later commented that the “only part” of the “terrible” trial that he does “not still regret” was the fact that the jury was divided in Wash-
Inevitability of Innocence
|
39
ington’s case, resulting in a life sentence for him and a codefendant. “Imagine how much worse this tragedy could have been” if they had been “sentenced to death or, God forbid, put to death before their innocence could be proven.”80 Douglas Warney was the first to be charged under New York’s new death penalty statute in 1996, and he later recalled that he was “lucky,” in one way, since he avoided the death penalty and instead received twenty-five years to life. Warney served six years in prison before DNA testing exonerated him for a murder he did not commit. He was mentally ill and had falsely confessed, like so many of the exonerees in murder cases, and the entire case revolved around his supposedly detailed confession. The detective was emphatic that he did not “suggest any answers” when speaking to Warner. The detective said Warner told him what the murder weapon was, what the victim was wearing, and what the victim was cooking for dinner. At trial, the prosecutor insisted, “[W]ho could possibly know these things if you hadn’t been inside that house, inside the kitchen?”81 Untold numbers of innocent people, facing the death penalty, do not get sentenced to death, but still serve long sentences for murders they did not commit. My research has uncovered quite a few people who received harsh results in the shadow of the death penalty. In addition to the twenty DNA exonerees who were sentenced to death, another sixteen were charged with the death penalty but received some other sentence at trial. I have also found at least twelve more DNA exonerees who pleaded guilty rather than face the death penalty at a trial. Like the death row exonerees, the exonerees who escaped the death penalty had mostly falsely confessed. Sixteen of the twenty-eight had falsely confessed, and sixteen had informants testify in their cases. Many came within a hair of a death sentence. Larry Ruffin, for example, had a hung jury at trial, which is the only reason he was not sentenced to
40
|
End of Its Rope
death for a murder he did not commit (along with two other innocent people who were also convicted). His exoneration came too late. When DNA tests cleared him thirty years later, he had already died in prison eight years before.82 We may never know how many innocent people were informally threatened with the death penalty and pressured into false confessions or guilty pleas. Some people, like DNA exoneree Chris Ochoa, falsely confessed because detectives threatened them with the death penalty during the interrogation. Ochoa was interrogated for twelve hours and told that he had a choice between death by lethal injection and falsely confessing and implicating his best friend. The detectives showed him photos of death row. They showed him where on his arm the needle with the execution drugs would be inserted. They told him that he would be “fresh meat” for the other prisoners. They also started and stopped the tape recorder, so that they could tell Ochoa details about the crime with the recording off. Ochoa’s friend Richard Danziger was also wrongly convicted; he was beaten in prison and suffered brain damage. All the while, the culprit remained at large; eventually he wrote letters to Texas officials, including then governor George W. Bush, saying that two innocent men were in prison for a murder he’d committed. Only after twelve years were the DNA tests fi nally conducted and Ochoa and Danziger cleared.83 Others similarly pleaded guilty because their lawyers convinced them not to risk the death penalty at trial. Still other innocent people narrowly avoided the death penalty because the crimes occurred when the death penalty was not the law in a given state. Paul Terry and Michael Evans, in Illinois, were sentenced to hundreds of years in prison for rape and murder, but since the murder occurred in 1976 and not 1977, when Illinois brought back the death penalty, they could not receive it; they were exonerated years later by DNA tests. Former New York gov-
20
|
End of Its Rope
anything about the murder, and police ultimately concluded that he was being truthful.9 At 9:10 p.m. the police picked up McCollum and took him to the station. They fingerprinted him and talked about unrelated things for about an hour. Then the police asked him point blank: did he murder the girl?
The Interrogations
Henry McCollum was in the police chief’s office with the door shut for hours. When a suspect is in custody, the police must give the well-known set of warnings that the Supreme Court required in Miranda v. Arizona, informing the person of their constitutional rights under the Fifth and Sixth Amendments to remain silent, to request a lawyer, and the like. The police observed that rule. As an officer recalled at trial, McCollum was read each of his rights, and he put his initials next to each on the provided form. He also signed a form stating that “[n]o pressure or coercion of any kind” was used against him. This was all quite typical. Suspects rarely invoke their Miranda rights, even innocent suspects. Nor is it clear that juveniles fully understand what those rights mean. At this point McCollum was not under arrest, and if the police had conveyed to him that he was free to stop talking and leave, he would have done just that. Instead, for over four hours three officers interrogated McCollum. During the interrogation, he was given three soft drinks and “went to the restroom twice.” The office from the state crime lab recalled McCollum being composed the entire time.10 Finally, the police took a statement from him, though the crime lab officer “actually did the writing.” Why him? He wasn’t a detective. But he was intimately familiar with the crime scene.11 Nothing was recorded during the entire conversation. Instead, the police typed up the statement for McCollum to sign.
42
|
End of Its Rope
suspects from photos. That alone should have been a red flag. Later, a detective showed Vernon a lineup of seven men, one of whom was Jackson. Vernon could not identify anyone. So he was “taken out of the room,” according to an appeals court, where he “told the policemen that he had not said anything at first because he had been afraid.” Now he identified Jackson. But he did not change his mind on his own. Police apparently shouted and threatened to charge him with perjury if he did not identify Jackson. When Jackson was exonerated, Vernon told the judge, “Do you really think as a twelve-year old I could stand up to those detectives screaming in my face?” Obviously, the procedures described in Jackson’s case were brutal, and nothing resembling scientific practices. Why didn’t judges release Jackson years before? The National Academy of Sciences report highlighted how judges should be far more sensitive to research on eyewitness memory. Back when Jackson was convicted, the judges seemed unaware that there was anything wrong with a twelve-year-old identifying three murder suspects when previously he could not. The Supreme Court of Ohio in 1978 said the evidence against Jackson “was not so slight or of so little probative value” that a jury could not convict him. Why? Because there was an eyewitness. Jackson’s lawyer was appointed only four days before his death penalty trial. His lawyer complained that he had “virtually no time . . . to do independent investigation, talk to the prosecution witness, Edward Vernon, or determine a trial strategy.” Yet the judge saw no problem, because, after all, this was a case where “the evidence was highly credible.” The National Academy of Sciences report highlights the need for pretrial investigation of eyewitness evidence, careful inquiry by judges, and allowing expert witnesses to explain the science to the jury. Yet to this day that does not occur, except in a handful of states, like Massachusetts, New Jersey, and
|
Inevitability of Innocence
43
Oregon, that have improved handling of eyewitness evidence in the courtroom.87 Still more troubling, Jackson and the Bridgeman brothers were just three of six death row exonerations nationally in 2014. There were six more death row exonerations in 2015. Death row exonerations are inevitable. Although DNA exonerations are particularly high profile, most death row exonerations, like Jackson’s, do not involve DNA. In addition to the twenty DNA death penalty exonerees, from 1989 to present there have been over one hundred others exonerated from death row based on other types of evidence. The National Registry of Exonerations and the Death Penalty Information Center detail each of those cases. Eight percent of known exonerations occur in cases in which defendants were sentenced to death. The cases are somewhat confession heavy, and about 20 percent included false confessions. A larger number, 28 percent, involved false or misleading forensic evidence. Still more, 70 percent, involved some form of witness perjury or false accusation, and 78 percent involved “official misconduct.” In general, homicide exonerations include 75 percent of all the false confessions in known exoneration cases.88 Are death penalty cases more prone to grave errors? Death penalty cases are more closely scrutinized than any other type of criminal case, so it may be that we simply learn about wrongful convictions in death penalty cases. People on death row remain there for decades. They have every incentive to protest their innocence, and they usually have lawyers working for them, even during habeas corpus proceedings, when there is no constitutional right to a lawyer. We know that there is a “uniquely high rate of exoneration” in death penalty cases, and as law professors Sam Gross and Barbara O’Brien have found, there is about a 4 percent rate of exoneration in death penalty cases.89 In the 1990s there were six exonerations a year from death row.90 The numbers have gone down
44
|
End of Its Rope
since, most likely because there are fewer death sentences these days, although the numbers have spiked again in recent years. Added to the innocence effect, there may be an “error effect”: mounting awareness that death cases languish in the courts for years, on the road toward eventual reversal for serious errors on appeal and postconviction. These exoneration cases are just a small portion of death penalty cases reversed for grave errors. As I describe in Chapter 8, 40 percent of death sentences never result in executions because cases are reversed on appeal or postconviction for a host of reasons, including ineffective assistance of counsel, prosecutorial misconduct, flawed instructions from judges, and a litany of other errors. Some have wondered whether one reason the death penalty is on the decline is wrongful convictions. Juries may be increasingly aware that an innocent person can be sentenced to death, and that many have been sentenced to death. I have studied whether any decline in death sentences is statistically correlated with the states that have the most death row exonerations. Instead, what I have found is that the more death sentences a state has, the more exonerations it has. Exonerations do not seem to be driving the decline in death sentences. Far more troubling, I am instead seeing that exonerations are an unavoidable function of our death penalty system. Error is inevitable, and it occurs at a very high rate.
A Bulletproof Death Penalty?
One state decided to try to change its death penalty statute to avoid the inherent risks of wrongful executions. It was an impossible project. Chastened by Kirk Bloodsworth’s death row exoneration, in 2009 Maryland lawmakers limited the death penalty to just cases where they have DNA or other biological evidence, a videotape of the crime, or a videotaped recording of a confession
Inevitability of Innocence
|
23
vices records. The defense must investigate the types of complex forensics often collected in murder cases. The costs are far higher for prosecutors, too. In the high-profile Scott Peterson case, in Modesto, California, the prosecutor’s office spent over 20,000 hours preparing, with thirty-three employees working on the case, including five lawyers and seven investigators.18 In federal courts, prosecution costs are over two-thirds higher than defense costs; after all, the prosecution must put on all the evidence of guilt, including any forensic or medical evidence, crime scene evidence, and evidence from the detectives about their investigation. Then again, unlike the defense, the prosecution has substantial help. State attorney general offices have death penalty specialists who can consult on cases and who handle appeals and habeas. They have the resources of the police and the state crime laboratory. Medical examiners and mental health experts await their call. A defense lawyer appointed by the judge, like the ones in McCollum and Brown’s case, must largely work in the dark, without the records from all those police investigators, and if the judge provides the funds, must put a team of experts and investigators together from scratch. Today, most criminal cases are plea-bargained. A prosecutor has a choice whether to go forward to a trial or not. Back in the 1980s, though, it was required in North Carolina that a prosecutor seek the death penalty when there was evidence of at least one aggravating circumstance (and there were many in this case).19 Nor was life without parole an option. Not until 1994 would North Carolina pass a law that made life without parole available as an alternative to the death penalty in a capital murder case. With mandatory death charging, death sentences were being mass-produced in the 1980s and 1990s in North Carolina. This was also true across the country, and mostly within a Southern “death belt.” Figure 2.1 illustrates how death sentences have been completely dominated by the Southern states.
|
46
End of Its Rope
defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.”94 Federal district judge Jed Rakoff struck down the federal death penalty, stating, “We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency.” His ruling, however, was later reversed on appeal.95 More recently, in 2015 Justice Stephen Breyer dissented in a death penalty case and was joined by Justice Ruth Bader Ginsburg. He asked whether the current practice of the death penalty has become categorically unconstitutional, citing evidence from exoneration cases. He singled out the case of Henry McCollum, and noted that although there are endemic delays in death penalty cases, it took twenty years after the Supreme Court denied relief to McCollum, with only one justice dissenting, for the new DNA evidence to surface and to prove his innocence.96 The only way to avoid inevitable errors is to invest in getting criminal investigations right, and not just in death penalty cases, but in all cases relying on confessions, eyewitnesses, forensics, informants, and the rest. Our criminal justice system is less than perfect, but even without the death penalty the same challenges remain. We must take measures to protect against wrongful convictions. What measures are those? Coercive interrogation techniques should not be allowed, and confessions must be videotaped in their entirety. Judges should carefully review the reliability of all interrogation evidence. Police should be trained and required to take special care when questioning juveniles or disabled or other vulnerable individuals. Testimony from jailhouse informants should be restricted, and any testimony from informants or other incentivized witnesses should receive careful screening for reliability. Eyewitness evidence
Inevitability of Innocence
|
47
should be used only when eyewitnesses are tested using reliable procedures, most importantly, blind lineups where the officer administering the lineup does not know who the suspect is. The 2014 National Academy of Sciences report described reforms and recommendations to safeguard eyewitness evidence, but many police still use outdated procedures. Forensics must be carefully collected by trained analysts and then analyzed by impartial, in dependent scientists. In a groundbreaking 2009 report, the National Academy of Sciences laid out recommendations to improve the use of forensics, but many of them have not yet been widely adopted. Most criminal cases, even murders, do not have DNA to test. Far more research needs to be done to provide a sound scientific foundation for fingerprint and ballistics and other types of non-DNA forensic comparisons. We also need to know much more about the error rates for all forensic methods and how proficient particular analysts are when they do their work. Each of these types of evidence can be more accurately collected, but change has been slow in coming; when police and crime labs mass process vast numbers of cases, quality suffers when quantity is overwhelming. Providing broad, open-file discovery to the defense can also help to ensure that the truth is not concealed in criminal cases, including plea-bargained cases. Fortunately, more jurisdictions, including the states of North Carolina and Texas, are adopting these improvements, often in response to death row exonerations.
After the Exoneration
“The only way I made it through death row was the power of God,” Henry McCollum said after his release. After they were pardoned, the brothers received $750,000 each for the thirty-one years they spent in prison. Their lawyer asked, “How can you put
48
|
End of Its Rope
a price on your sister’s wedding, or seeing your niece or nephew born, being with your mother when she passes? These are things that are priceless.” McCollum said, “I don’t have no hate in my heart toward them but I don’t like what they did to me and my brother 31 years ago, destroyed my life. We could’ve been somebody.”97 Pardoning McCollum and Brown and using the power of the state to express mercy to them and provide them with some measure of compensation—these were not radical acts, and they were the least the governor and the state could do. A radical act would have been to express mercy toward the brothers three de cades before, when they were sentenced to death and no DNA tests were available, or to express mercy toward the man whom the DNA matched, thirty years later, in the McCollum case. We are all Henry McCollum. It is harder to imagine putting ourselves in the shoes of the guilty murderer. Today, mercy for the actual murderers is exactly what our judges and jurors, even our prosecutors and governors, are carefully considering, and more and more they are declining to impose the death penalty.
Inevitability of Innocence
|
25
100 per year in the 1960s. And of those, only one in four resulted in an execution; most were commuted or pardoned, and many others were reversed on appeal or habeas.21 Six states abolished the death penalty, and others narrowed it sharply.22 The U.S. Department of Justice opposed the death penalty. Many leading national groups, religious organizations, and newspapers announced their opposition to the death penalty, and opinion polls showed that most of the country opposed it.23 And yet ten years later, by the early 1980s, when Brown and McCollum were prosecuted, the death penalty was in full swing in North Carolina and other key states. What changed? Enter the Supreme Court. The court struck down the death penalty in Furman v. Georgia in 1972, holding that the Eighth Amendment of the Constitution forbade the death penalty as “cruel and unusual punishment,” with the justices divided in their reasoning.24 Justice William Brennan emphasized that the death penalty was imposed in an arbitrary manner in a “trivial number of cases in which it is legally available.”25 Justice Thurgood Marshall emphasized that the “burden of capital punishment falls upon the poor, the ignorant, and the under privileged members of society.”26 However, the three other concurring justices believed that the death penalty was unconstitutional only because the death penalty laws at the time were arbitrary and gave largely unfettered discretion to jurors to decide whether or not to impose the death penalty.27 As Justice Potter Stewart put it, the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” because the death penalty was “so wantonly and freakishly imposed.”28
Reacting to the Supreme Court In reaction to the Supreme Court’s decision, North Carolina did not get rid of the death penalty. Instead, the state tried to put its
50
|
End of Its Rope
very happy that this animal, that this monster, will never see the light of day.”2 The guilt verdict was just the beginning, though, since a death penalty trial is really two trials. After the jury finds the defendant guilty of murder, the second trial begins. In the second trial, jurors wrestle with the prosecution’s claim for justice and the defense’s appeal for mercy. The mental health of the convicted defendant often brings into sharp relief the counterclaims of justice and mercy, and mercy increasingly wins out. This trend speaks not only to the decline in death sentences in America, but also to the broader need for criminal justice reform. So many people who are prosecuted have serious mental health problems, but outside of a death penalty case, they lack the same opportunity to make a case for mercy. The jury would have to deliberate not just one but three more times. They would have to decide, first, whether the prosecutor had shown that there was something aggravated about the murder, making it eligible for the death penalty; second, whether any mitigating circumstances outweighed those factors; and third, whether to sentence Holmes to death. At the sentencing phase of the Aurora trial, the prosecutor told the jury, “You are experts in the facts. . . . All the things you know that he did, considered, and planned for this murder. Could that now justify a life sentence?”3 During the sentencing phase, prosecutors focus on evidence like the seriousness of the crime and the defendant’s prior criminal record, or what is called “aggravating” evidence. This mass murder was clearly “aggravated.” In response, the defense lawyers present evidence that might convince the jury to choose life, called “mitigating” evidence, which might include the defendant’s upbringing, childhood abuse, schooling, disability, mental illness, brain trauma, and addiction to alcohol or drugs. On the sixty-fourth day of the trial, the jurors sent a note stating that they had reached a decision. Everyone stood impassively as the
Mercy vs. Justice
|
51
jurors returned. Two courtroom officers watched with arms crossed. The judge asked everyone to be seated and told the foreperson to provide the verdict forms to the bailiff. The judge flipped through each of the forms in the large stack as the tense courtroom waited to hear what the jury had decided. “Will the defendant please stand,” the judge said. He read, “We the jury do not have a unan imous final sentencing verdict . . . and we the jury understand that as a result the court will impose a sentence of life without parole.” The jurors chose a life without parole sentence. Why? The reasons could be traced back to the very beginning of the case, before the trial even officially began. Two top public defenders took on the case. These were not local court-appointed lawyers. These were both chief trial deputies, from Colorado’s state public defender office, which handles all death penalty cases in the state. The district attorney led the trial team for the prosecution. The lawyers used sophisticated methods, first developed in Colorado, to screen each juror before the trial began. Jury selection took place over four months—far longer than the trial itself lasted—and the painstaking process may have been the longest in U.S. history. The lawyers had to winnow down a list of 9,000 prospective jurors to just twelve with twelve alternates. The judge wanted to start broadly, having denied the defense motion to change the venue, so the lawyers had to search for jurors not biased by having watched or read extensive media coverage of one of the worst mass shootings in Colorado history.
Selecting the Jury “If any of you could not or would not apply your reasoned moral judgment in determining the appropriate sentence, please raise your hand,” the judge said in the Holmes case. None of the prospective jurors responded. “If any of you could not or would not
|
52
End of Its Rope
base the verdict on a profoundly moral evaluation of the defendant’s character and crime, please raise your hand.” There was no response. “If your views on the death penalty would prevent or substantially impair the performance of your duties as a juror, please raise your hand.” None raised their hand.4 Sitting on a jury is a remarkable opportunity and a public ser vice, but serving in a death penalty case can be incredibly challenging and even quite traumatic. A Kansas judge recalled a capital trial in which jurors were “exposed to horrific testimony and photographs,” and in which he “saw jurors become nauseous and then emotional to the point of tears.”5 It is never easy to be a lone holdout juror in a criminal case, but the stakes are obviously much higher in a death penalty case. In the jury room, jurors have reported that they felt despair after being bullied into imposing a death sentence they did not feel personally comfortable with. Scholars who have extensively interviewed actual jurors who served in death penalty cases, as part of an ongoing set of studies called the Capital Jury Project, found case after case in which jurors reported that they mistakenly thought the death penalty was mandatory, or they reported how the foreman or others refused to let them vote for life and pressured them into joining the vote for death.6 The need for jurors who are “death qualified” means their selection is also more complicated. Many Americans strongly support the death penalty, but more have their doubts or even outright oppose it.7 If you have substantial doubts about the death penalty, the Supreme Court has long ruled that the prosecution can automatically exclude you from the jury. In the case of Witherspoon v. Illinois, a hanging judge picked a hanging jury. The Illinois trial judge had kicked out people with “conscientious or religious scruples” about the death penalty, saying, “Let’s get these conscientious objectors out of the way, without wasting any
28
|
End of Its Rope
anything about the Schlitz Bull Malt Liquor beer or a plastic holder for beer cans?” he responded, “No, sir. I had never been to the crime scene.”40 Another officer in the interrogation room knew everything about the crime scene, though: the agent from the State Bureau of Investigation. He was there, one of the officers stated, to “either confirm or deny the truth as it came out,” since he was so knowledgeable about the crime scene.41 The SBI agent was also the one who wrote down McCollum’s statement, while the other officers supposedly asked the questions. Before the jury could hear about the confessions, the judge addressed the defense argument that the confession statements were coerced, involuntary, and in violation of the Fifth Amendment of the U.S. Constitution. The judge began by noting that each of the defendants “voluntarily went to the police station” to be questioned, that each was given and signed “a written waiver of rights form,” and that “the answers of the defendant and each of them as given to the respective officers were not incoherent and were sensible.” The judge emphasized: “[N]either officer made any threat or show of violence and made no act which suggested violence.”42 None of this was surprising. Judges rarely rule that a jury cannot hear about a confession statement. The U.S. Supreme Court’s test for whether someone has been coerced in violation of the right against self-incrimination under the Fifth Amendment looks to the “totality of the circumstances.”43 Even in cases like this one, in which police interrogated vulnerable individuals, both young and intellectually disabled, judges rarely grant relief. After all, if this judge barred the confession statements, the prosecution would not have any kind of a case, and a murder might go unpunished. Once a police reads the suspect the famous Miranda
54
|
End of Its Rope
Ask yourself where you might fall on a seven-point scale. A “one” will never vote for the death penalty and is vocally opposed to it. If you are a “one” you will be excluded for cause by the judge. A two or a three believes in the death penalty but does not have strong reasons to be for it, and, depending on the person, can feel compassion for a criminal. If you are a four or a five, you comfortably support the death penalty and think it is a “good thing” to have. You are still open to considering “both sides” in a case. You are open to hearing arguments that a particular murderer might not deserve the ultimate punishment, and you are less prone to being bullied by the most ardent death penalty supporters on the jury. If you are a six, you are a natural “head nodder” whenever the prosecutor talks. You think that the main problem with the death penalty is that we do not impose it often enough. If you are a seven, you will automatically sentence any convicted murderer to death, no matter what. You will be excluded by the judge just like a “one.”12 This method evolved a decade ago through trial and error as David Wymore, a longtime public defender in Colorado, decided he needed a way to deal with a terrible problem: that some jurors mistakenly think they are required to impose the death penalty if the murderer is found guilty. Wymore worked on dozens of death penalty cases. His colleagues called him the “epitome of no stone unturned,” and he passed on his “dogged determination” to a “generation of public defenders.”13 Wymore believed that there should be more of a science to jury selection in death penalty cases. The Colorado Method that Wymore and his colleagues developed, and which is now a key element in death penalty training across the country, reminds jurors what should be obvious but too often had not been in the past: that every juror has a vote and must think for herself about whether to impose the death penalty or exercise mercy. They must respect each other’s votes and cannot
|
Mercy vs. Justice
55
force others to vote for death. While there can be disputes about the degree to which lawyers can ask jurors about hypothetical murder cases, these statements are so obvious that judges now themselves use the language. This is what the judge did at length in the Holmes case to take pains to ensure that the jurors understood their job.
The Aurora Trial
“Can words be spoken to you in a passionate way that would justify a life sentence?” The judge sat still. The defense listened respectfully. The jurors selected had sat through a harrowing trial for almost three months. They had seen graphic images portraying death, pain, and suffering that none should have to endure. They had to make the choice the judge set out for them. The prosecutor began his closing arguments at the final penalty phase by anticipating that the defense would call for mercy. “If there were tears, if there were pleading,” would that make it appropriate? “Could someone argue to you mercy, mercy, that mercy is about the giver, not the receiver?”14 With anger and outrage edging into his voice, the prosecutor then asked, “Could they play upon your conscience and your guilt to make a life sentence appropriate for what he has done?” The “time for emotion, that time for tears, that time for passion, that was yesterday.” “This is about justice,” he continued, now facing the jury; it was time for justice and not mercy. The courtroom was otherwise still. The prosecutor told the jurors not to think of “revenge” since this is “not the Arapahoe County eye for an eye center,” but a “justice center.” Speaking in slow and measured tones, the prosecutor highlighted how Holmes himself had showed no mercy. The theater
56
|
End of Its Rope
shooting was carefully planned, with use of tear gas to cause audience confusion, special purchases of firearms and steel “penetrator” ammunition, and plotting out where the exits were and which were locked. Holmes “picked the time, place and manner of their deaths.” Holmes booby-trapped his apartment, so when police later searched his apartment, they had to remove more than twenty homemade explosives. Walking closer to the jury, the prosecutor spoke about the victims. Much of the prosecutor’s closing argument was spent showing the jury photos, again, of the shooting scene and replaying the 911 call. He said that they were all now “experts in a way in mental health.” The prosecutor called Holmes “[s]ane, sane, sane.” Stepping back from the jurors, he emphasized how Holmes “made sure . . . that one person and one person alone would be guaranteed to survive, and that was him.” This was a moral decision, but one about “moral culpability” for the crimes. “And for James Eagan Holmes, justice is death. Death.” In summer 2012, James Holmes abruptly changed his hair to “an orangey-red. . . . It was kind of wild,” recalled his landlord. Something changed. Holmes dropped out of school, quit his work, applied for unemployment, and “sought counseling from the student mental health center.” When police searched Holmes’s apartment, they found medication for treating depression, panic disorders, and anxiety. During the trial, James’s parents sat the entire time and watched without expression, but privately they prayed, “Please don’t commit suicide.”15 “The measure of our soul is in how we treat people who are sick and who are damaged,” the defense attorney pleaded at sentencing, when it was her turn to respond. She was speaking calmly and slowly, much like the prosecutor had, and she stood, like the prosecutor had, right in front of the jury box, facing the jurors directly. The courtroom was again completely quiet. With mental health evidence at the center of the case, the lawyer asked, “How
|
Inevitability of Innocence
31
Intellectual Disability
Today, it is unconstitutional to sentence an intellectually disabled person to death. In 1984, there was no rule against it. At Brown’s trial, a psychologist from a nearby mental health center was called to testify. He had examined Brown for an hour and a half. He concluded that the results fell “within the mild range of mental retardation as far as overall intellectual findings is concerned.”57 (McCollum’s lawyer did not call any experts.) But the prosecutor said that Brown’s “speech was clear, coherent and easily understood,” which the psychologist agreed with.58 The psychologist concluded that Brown’s “recent memory was good,” and he could understand his rights and his situation “on a concrete level.”59 A report from the psychologist, produced specifically for the court, noted that Brown “did deny any participation in the crimes for which he is charged,” and added that his “lack of maturity prevents him from making responsible decisions and also increases his ability to be a willing participant in any type of negative behavior.”60 (The tendency to use a person’s disability against him would motivate the U.S. Supreme Court twenty years later to ban the death penalty for intellectually disabled persons.) The prosecutor told the jury to ignore the evidence of disability: “Now, are you going to excuse Brown because somebody . . . comes over here from Bladen County and tells you he scored 58 on an I.Q. test when we know he scored at least five points higher than that the previous times? It’s up to you, ladies and gentlemen of the jury.”61
The Jury Verdict
“Now, come on folks. They must think you were born yesterday to swallow something like that,” said the prosecutor in response
58
|
End of Its Rope
mitigation.” So now, the defense lawyer said, looking right at each of the jurors, the “focus becomes about you.” She told them this was one of the most important decisions they would ever make, and they would have to live with it for the rest of their lives. Nor can they “come back later and say I’ve given this more thought and I’ve changed my mind.” The jurors had to ask, “What do you do? What is in your heart, and your soul, and your mind?” The defense noted that each of the jurors must understand each other’s personal decisions, and if a juror chooses life, the juror must insist that the foreman and the others respect that decision. The judge had said that the jurors could consider mercy. The defense lawyer dwelled on mercy, for a person who was “sick and damaged,” not because “he deserves it” but because it is “bestowed.” The prosecutor was exactly right about what the defense would argue. “Mercy says more about you than it says about him. What you do here says more about you, if you choose to exercise mercy, not about him.” The defense lawyer emphasized in conclusion that “[j]ustice without mercy is raw vengeance. Mercy is what makes us civilized,” and “this is a moral decision.” The jury selection was crucial until the very end. Initially, two jurors were “on the fence,” and one juror would not budge in opposition to a death sentence, citing Holmes’s mental illness. Three jurors ultimately voted for life. One of them later explained to a journalist that she was able to empathize even with a mass murderer: “I wanted to be the kind of juror I would want if it was me.” She said she still broke down and cried when she thought about the victims, and that it was so hard to walk to the jury box to deliver the verdict that it was “like a car was parked” on her chest, but given Holmes’ mental illness, death “wasn’t an option.”16 The cost of the trial, by the way, was in the millions. The prosecutors said they spent about $1.4 million, not including the salaries of the lawyers and staff who worked on the case. The sheriff spent
Mercy vs. Justice
|
59
$1.6 million on detaining Holmes, transporting him back and forth to court, and handling courtroom security during the lengthy trial. The total cost may have been over $7 million, not including the costs of the defense.17 Of course, the prosecutors had the resources of police departments and crime labs and grant funding to handle complex cases. Public defenders lack all that manpower and funding. Yet through a sustained appeal to mercy, in an intensely lengthy and complex case, the defense achieved a partial victory. Meanwhile, there have been only two death sentences in Colorado in the past decade. The Colorado Method may be part of the reason why, and it works because it conveys why each juror must be capable of making an individual moral decision. The prosecutors could have avoided a trial. Early on, the defense said that Holmes would accept a plea for life without parole. One of the victim’s brothers tweeted after the trial, “This trial should have never happened. Defense offered a plea to life in prison, but political ambition trumped reason.”18 Now perhaps the prosecutors did not sufficiently appreciate how the mental health evidence would affect jurors. But in a state with the death penalty, it is not hard to understand why the prosecutor would seek the death penalty for such a horrifying murder. The mother of one of the victims, responding to the verdict, asked, “Why do you even have a death penalty if you’re never willing to use it?” Or putting it differently, if there are genuine questions for jurors in even the most serious mass shootings imaginable, then one wonders what if anything the death penalty should be used for.
Wake County, North Carolina
The jury deliberated for three days before reaching a decision in the case of Samuel Cooper, on trial in 2010 in Wake County, North Carolina, for killing five people in a series of robberies. It
60
|
End of Its Rope
was nowhere near as complex as the Aurora case, but it was the first trial in North Carolina history in which a person was tried for so many homicides all at the same time. Cooper had confessed to all five murders. The jury had already decided that the defendant did it. Yet in the Cooper case, like in the Aurora, Colorado, case, after a sentencing trial, the jury chose a sentence of life without parole. The prosecutor apologized to the victims for the result, saying, “I just want to tell them I’m sorry.”19 The defense had put on extensive mitigation evidence. They had described how Cooper had suffered years of “sadistic and ritualized” abuse by his father since the age of three months and through his teens. When Cooper was sixteen, the police and social services told him to “be a man” and try to do his best to protect the rest of his family from his father’s abuse: “We aren’t going to help you Sammy, but you have to protect everyone else in your family.” The defense argued that he stopped crying or feeling pain by the time he was a teenager; the abuse “literally broke his mind,” making him unable to emotionally register violence. A forensic psychiatrist described the effects of posttraumatic stress disorder on Cooper.20 The defense said, “This is not the abuse excuse,” and it is “not an excuse at all.” But “it is a story about what happens to a child who grows up knowing nothing from his parents but fear and violence.” They said, “Mom taught him fear. Dad taught him violence.” The prosecutor responded, “Was it bad? Yes. I’m not trying to say it wasn’t.” But, “[T]o the extent they want to sell it to you, I’d ask you to be very cautious about that.”21 The defense countered that the very inhumanity of the murders showed why life was the right option. “In choosing life, you in no way diminish the humanity of these five very well-loved men. In choosing compassion, you do not forgive Sammy for these sorrowful deaths.” The jurors chose compassion.
34
|
End of Its Rope
attorney general candidate were both defeated after being the subjects of the flyers.71 Decades later, McCollum’s case was still a poster child case for death penalty supporters in North Carolina. In September 2014, a standing ovation shook the walls of the Robeson County courtroom, with relatives of Henry McCollum and Leon Brown weeping for joy. The judge ordered their convictions reversed. A special guest sat in the room. Judge I. Beverly Lake, Jr., several years after stepping down as chief justice of the Supreme Court of North Carolina was now sitting quietly in the audience rather than on the bench. Before he retired, Judge Lake left a remarkable legacy. He spearheaded the creation of the North Carolina Actual Innocence Inquiry Commission in 2007, the first of its kind in the country, an independent agency whose job it is to investigate potential wrongful convictions. The Center for Death Penalty Litigation, a nonprofit law firm that represents death row prisoners in North Carolina, had been pushing for years to get cigarette butts and other crime scene evidence from the McCollum case tested, but the lawyers had run up against a wall: police had repeatedly insisted that the evidence was all lost. The box had been sitting in storage that whole time. Unlike the Center for Death Penalty Litigation, however, the Innocence Inquiry Commission had the power of the state behind it, and it had responded to frantic letters from McCollum’s sister. The commission’s investigators tracked down the box and conducted DNA tests. The tests cleared both brothers and implicated another man, who lived a block away from the murder scene and had confessed to another rape and murder in the town of Red Springs. Indeed, the commission uncovered that the investigators initially requested that a fingerprint from the Schlitz beer cans be tested to see if it matched that other man; the test was apparently never conducted. Based on the DNA tests, the commission recommended that the court reverse both brothers’ convictions. The two left the
62
|
End of Its Rope
coaches, friends, and Sister Helen Prejean, portrayed in the movie Dead Man Walking, who said she had visited Tsarnaev and that he felt remorse. However, the prosecutors also called large numbers of witnesses, including victims and relatives of the three people killed and 260 injured at the Marathon, as well as relatives of the police officer whom the brothers had killed later. Nor was there any evidence of mental illness or disability. Using jury verdict forms, the jurors tallied each of their “votes” on which mitigating factors they found relevant. They did not have to agree on each of the factors. We know something about what the jurors were thinking based on these forms. All the jurors agreed that Tsarnaev was only nineteen years old and had no history of violent behavior. He had family members, teachers, and friends who cared for him, and he had a father disabled by mental illness and brain damage. The jurors mostly did not believe that Tsarnaev had expressed “sorrow or remorse,” or that he was unlikely to commit violence again even while serving a life sentence in federal custody. Nor did most of them believe that he had acted under the influence of his older brother.24 It was only after the jury reached its verdict, when Tsarnaev was standing before the judge only, that he spoke about what he had done: “I am sorry for the lives that I’ve taken, for the suffering that I’ve caused you, for damage that I’ve done. Irreparable damage.” One local prosecutor commented, “His lack of remorse sealed his fate.”25
Juveniles, the Intellectually Disabled, and the Death Penalty
At Leon Brown and Henry McCollum’s trial, the defense lawyers tried to emphasize the youth of the two boys as mitigating factors for the jury to consider. McCollum’s lawyer emphasized that he
Mercy vs. Justice
|
63
“has no significant history of prior criminal activity.” He was nineteen years old. Leon Brown was just fifteen.26 The last time that a person who was under sixteen when committing a capital offense had been executed in the United States was in 1948. The jury was not moved by those facts. Nor did the defense have access to top experts who could describe the intellectual disabilities of the boys. Today, juveniles like Leon Brown cannot be sentenced to death or to life without parole.27 The U.S. Supreme Court ruled just a few years after Brown was convicted, in Thompson v. Oklahoma, that juveniles under sixteen years old may not be sentenced to death.28 The court then ruled in Roper v. Simmons, in 2005, that juveniles under eighteen may not be sentenced to death.29 Those Supreme Court rulings cannot convincingly explain the decline in the death penalty. When Roper v. Simmons was decided, the number of death sentences imposed each year had already begun to sharply decline. By the time of the court’s ruling, there were hardly any juveniles still being sentenced to death anywhere in the country. Today, Henry McCollum and Leon Brown might not be eligible for the death penalty for a second reason: intellectual disability. In 2002 the U.S. Supreme Court decided in Atkins v. Virginia that intellectually disabled individuals may not be executed.30 Jurors might have assumed that such disabled people acted reprehensively, incorrectly sentencing them to death when it was their disability that influenced their actions as well as their lack of remorse afterward. In Atkins, the Supreme Court emphasized how such individuals have “disabilities in areas of reasoning, judgment, and control of their impulses” so that they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” After all, the purpose of the death penalty was, broadly speaking, “retribution and deterrence of capital crimes by prospective offenders.”31 As with juveniles, individuals not fully
64
|
End of Its Rope
in control of their behavior, by definition, cannot be rationally deterred. The Supreme Court also noted how “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”32 Innocent people like McCollum and Brown who are intellectually disabled may also be far more likely to comply with authority, falsely confess, and face difficulty meaningfully assisting their attorneys. The court said, “Mentally retarded defendants in the aggregate face a special risk of wrongful execution.”33 Some thought that the Supreme Court’s ruling forbidding the execution of the intellectually disabled might drive death sentences down. The dissenters in Atkins cited estimates that as many as 10 percent of death row inmates were intellectually disabled.34 Yet it is not likely that the ruling resulted in a 10 percent drop in death sentences. Most states by that time forbade the death penalty for the intellectually disabled. North Carolina passed such a law in 2001.35 By 2002 almost every state barred executing intellectually disabled people; the Supreme Court noted that only five states were still trying to execute the disabled, and the court ruled the way it did precisely because the practice had become “truly unusual.”36 Moreover, some states have resisted the court’s ruling in Atkins—and, to be fair, the court itself punted on what constitutes intellectual disability and for many years said that states could define it for themselves. As a result, challenges are often still brought under Atkins, in which inmates argue that they are intellectually disabled and the state argues that they are not. Some states, like Florida, imposed arbitrary IQ-score cutoffs in an effort to execute intellectually disabled individuals; the Supreme Court rejected such efforts in its 2014 ruling in Hall v. Florida.37 In its 2016 ruling in Moore v. Texas, the court similarly emphasized that judges cannot make up tests for who is intellectually disabled.38
|
Inevitability of Innocence
37
2017, two of the cases involved confessions and two involved informant testimony.72 Most of them also involved contested issues surrounding claims of intellectual disability and mental illness. Today, far fewer death penalty cases go to trial in Virginia than did in the 1980s and 1990s. Only twenty-one death penalty trials occurred from 2004 through 2015. These recent cases did not involve bulletproof evidence. Although in five cases the defendant pleaded guilty to capital murder, followed by a trial on the issue of sentencing, some still involved questions about guilt: seven of the twenty-one cases involved innocence defenses. Two others involved claims of self-defense. One case involved a conviction for murder-for-hire, based on the testimony of the person who stabbed the victim, and who received a plea in exchange for cooperation.73 Fourteen of the recent Virginia cases involved some type of forensic evidence, from ballistics to cell phone records to modern DNA testing. Sometimes the DNA was quite definitive. In one case, for example, a “cold hit” in a DNA databank linked a man to two murders.74 However, less precise forms of forensics were still being delivered with exaggerated certainty at recent capital trials. For example, in one trial, ballistics testimony was presented by a forensic analyst as follows in the closing arguments: “When I say it’s a ballistic match, the round that was found in his apartment, the ballistics that were taken from these men matched to the exclusion of every other weapon on the planet.” The prosecutor added, “No mistake. No room for doubt.”75 This was classic overclaiming by a forensic analyst. That testimony was not scientifically accurate; at best, the analyst could say that the ballistics look similar or “match” in some way, but not that the round absolutely came from a specific gun. In a 2009 report, the National Academy of Sciences explained that “with the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown
66
|
End of Its Rope
medical diagnoses seriously. In 2007, in Panetti v. Quarterman, the Supreme Court held that not only does the Constitution forbid executing the insane, but an actual “psychotic disorder” and suffering “gross delusions” should bar execution.43 Yet Scott Panetti, a schizophrenic, remains on death row as of this writing. Panetti’s was a textbook case of insanity. He had been institutionalized repeatedly before the murder of his in-laws in Fredericksburg, Texas. In 1992, he brutally shot his in-laws with a hunting rifle, right in front of his estranged wife and his daughter. He told police that a character named “Sarge,” one of his four or five personalities, who he would regularly hallucinate about, made him do it. At a separate initial trial on the issue of whether he was competent, he was medicated with massive doses of antipsychotic drugs. The first jury hung; after a surprise change of venue a second jury found him competent to be criminally tried. At his death penalty trial in 1995, he was somehow allowed to represent himself—without taking his antipsychotic medication, while wearing a purple cowboy suit, and requesting the opportunity to examine witnesses such as John F. Kennedy, Pope John Paul II, and Jesus Christ. His standby lawyer called his trial performance “bizarre,” “scary,” and “trance-like.”44 The one sensible thing Panetti did at trial was raise the insanity defense. When his habeas petition reached federal court, the judge initially rejected his claims out of hand. Facing an execution date, he filed again. This time the state court stepped in and appointed a psychiatrist and psychologist, but ultimately it conducted no hearing and found him competent. The federal judge let Panetti hire and present his own experts. The experts concluded Panetti believed that the death penalty was a satanic plot, with the state “in league with the forces of evil” and trying to “prevent him from preaching the Gospel.” The judge found that he lacked a “rational understanding” of the reason for his execution but still ruled that he could
Mercy vs. Justice
|
67
be executed. The judge noted that the forgiving (and not at all medically informed) standard the appeals court was using required only that Panetti have some “factual awareness” of the reason he was to be executed. Unsurprisingly, the appeals court agreed. In 2007, the Supreme Court reversed, but that was not the end of the story. With Panetti facing a new execution date, about which the state initially told him (but not his lawyers), the judge held new hearings. This time the judge, who refused to give the defense more funds for experts to evaluate Panetti, concluded that Panetti was competent. In 2013, the appeals court again agreed that Panetti was competent to be executed, this time for the reason that he had a “rational understanding” of why he was to be executed and had “thought about the death penalty and its moral and political implications.” After all, the state’s expert thought that Panetti had no mental illness at all and was just trying to “imitate” schizophrenia. Panetti also happens to think that “Bluetooth technology” is being used to conduct surveillance on him through his teeth. This time, the Supreme Court refused to step in; as of this writing, the appeals court continues to review the matter. One begins to wonder who is more delusional: the death row inmate or the judicial system. Things are slowly changing in Texas, though. In early 2016, prosecutors agreed that a Brazos County death row inmate was incompetent to be executed, when for years he had been experiencing “paranoid and grandiose delusions” and had accused Magic Johnson of impersonating him.45 One would think that severe mental illness would bar execution for the same reasons that the Supreme Court has said states cannot execute juveniles or the intellectually disabled. However, the Supreme Court has never required as much. The problem is a pressing one. Reports have described large numbers of mentally ill persons on death row. Many may have serious mental and emotional disorders due to PTSD, including from combat. As of 2015,
68
|
End of Its Rope
approximately 10 percent of individuals on death row were veterans.46 In response, some states are now considering broader legislation to prevent execution of the severely mentally ill. Lawmakers in Ohio and other states have considered barring the death penalty for those who have a clinical diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder, or delusional disorder.47 Former Ohio Attorney General Jim Petro spoke in favor of the Ohio bill, noting that he now opposes the death penalty, in part because severely mentally ill people may confess to murders they did not commit, and even if they are clearly guilty, they cannot be “the worst of the worst.” He recalled that as attorney general, he executed “at least three persons with some level of mental illness,” including a man with “paranoid delusions,” a man with depression, and another with “major depression with psychotic features”—and all three “waived their rights at some point and volunteered for execution.”48
Sentencing McCollum and Brown
The sentencing of Henry McCollum and Leon Brown is a perfect example of typical defense lawyering from the heyday of the death penalty—no real case for mercy was made and no significant evidence about intellectual disability was presented—while the prosecutor cried for harsh justice. Not only do we now know that the evidence of their guilt was outright false, but their defense lawyers handled the trial poorly, even without the benefit of the DNA tests that thirty years later proved the brothers’ innocence. At their sentencing trial, the self-styled America’s Deadliest Prosecutor spared no emotion in his arguments to the jury:
Think about the fear, the fear, ladies and gentlemen of the jury. “I want to go home.” Couldn’t go home. . . . And then
40
|
End of Its Rope
death for a murder he did not commit (along with two other innocent people who were also convicted). His exoneration came too late. When DNA tests cleared him thirty years later, he had already died in prison eight years before.82 We may never know how many innocent people were informally threatened with the death penalty and pressured into false confessions or guilty pleas. Some people, like DNA exoneree Chris Ochoa, falsely confessed because detectives threatened them with the death penalty during the interrogation. Ochoa was interrogated for twelve hours and told that he had a choice between death by lethal injection and falsely confessing and implicating his best friend. The detectives showed him photos of death row. They showed him where on his arm the needle with the execution drugs would be inserted. They told him that he would be “fresh meat” for the other prisoners. They also started and stopped the tape recorder, so that they could tell Ochoa details about the crime with the recording off. Ochoa’s friend Richard Danziger was also wrongly convicted; he was beaten in prison and suffered brain damage. All the while, the culprit remained at large; eventually he wrote letters to Texas officials, including then governor George W. Bush, saying that two innocent men were in prison for a murder he’d committed. Only after twelve years were the DNA tests fi nally conducted and Ochoa and Danziger cleared.83 Others similarly pleaded guilty because their lawyers convinced them not to risk the death penalty at trial. Still other innocent people narrowly avoided the death penalty because the crimes occurred when the death penalty was not the law in a given state. Paul Terry and Michael Evans, in Illinois, were sentenced to hundreds of years in prison for rape and murder, but since the murder occurred in 1976 and not 1977, when Illinois brought back the death penalty, they could not receive it; they were exonerated years later by DNA tests. Former New York gov-
70
|
End of Its Rope
phase; now the defense must seek to humanize the person who did it. The U.S. Supreme Court requires that the jury be given instructions to explain how to make this grave life-and-death decision. Under the law of North Carolina at the time, jurors would be given guidelines on the two choices they had for sentencing: life imprisonment or the death penalty. The jurors would conduct a balancing act. First, they would be asked whether one of a list of eleven “aggravating circumstances” was present. If they found just one of the factors present, they could sentence the half brothers to death. At this particular trial, the first factor that prosecutors had to prove asked the jury the following question: “Was the capital felony committed for the purpose of avoiding a lawful arrest?” As the prosecutor put it to the jury, this was “A very simple question, and the answer, of course, is, ‘Yes.’ ” The victim was killed to prevent her from going to “tell the cops,” or to prevent or avoid lawful arrest, which was an aggravating factor.51 Second, the prosecutors had to prove that the defendants were engaging in or aiding a rape. The jury had already found the brothers guilty of rape. The third aggravating factor was that the murder must be “especially heinous, atrocious or cruel.”52 What did that mean? The judge explained to the jury, “So, heinous means extremely wicked or shockingly evil, and atrocious means outrageously wicked and vile, and cruel means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of others.” Whatever that all meant, this particular murder would have to be more so than other murders. The prosecutor made it much simpler for the jury. He defined “heinous, atrocious, or cruel” as a murder that was “conscienceless.” He told the jurors to focus on what these defendants were like in the courtroom. “Defiant, aggressive, ready to attack. That is Buddy McCollum.”53 “Listen to me. They are dangerous young men, and dangerous young men grow up to be dangerous old men, and they are dan-
Mercy vs. Justice
|
71
gerous to society and they are dangerous to young girls.”54 The prosecutor asked, “Have you seen the first tear of remorse from either one of these defendants sitting at the next table?”55 The “good within” the brothers, the defense lawyers emphasized, should weigh in the minds of the jurors, and to counter the aggravating circumstances that the prosecution raised, the defense could introduce mitigating circumstances. There is no set list of topics the defense can bring up. As the U.S. Supreme Court has put it, a defense lawyer can put before the jury “any aspect of [the defendant’s] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”56 There are “virtually no limits” placed on the evidence a defendant may introduce “concerning his own circumstances.”57 But, at this stage, as the prosecutor in the McCollum case made sure to point out, “for the first time in this trial the burden is on the defense.”58 Today, defense lawyers would be expected to do far more to shoulder that burden. A series of Supreme Court decisions since the late 1990s have made clear that defense lawyers have an obligation to investigate mitigation, including the defendant’s background, and including by consulting experts on subjects such as intellectual disability and mental illness.59 What investigation did these lawyers do? Not much, apparently. Both McCollum and Brown were intellectually disabled. The jury heard almost nothing about it. There was no parade of highly credentialed experts like at the Aurora trial. Brown’s lawyer, in a very brief statement, said, “[W]hat purpose is it going to serve to put that retarded young boy in the gas chamber? What purpose is it going to serve?”60 Henry McCollum put his case best himself: “I’m sorry about the death but I didn’t kill her.”61 McCollum’s lawyer pleaded for his client’s life for just minutes; his closing arguments were only a few pages long in the reporter’s transcription,
72
|
End of Its Rope
perhaps not much longer than the moment of silence the prosecutor held. The lawyer did give an extended reading from the Bible to show that some passages support life imprisonment as an alternative to capital punishment: “I recall the time in which, when Cain killed his brother Abel and God punished him. His punishment at that time was to be banished away.” He could have said more about the role of mercy in the New Testament. Still, he spent more time on exegesis than he did on describing Mc Collum’s background or his lack of any prior significant criminal record. The lawyer concluded with this tepid statement: “You have before you today a choice of life and death. I urge you to choose life. You have listened patiently. Thank you.”62 The prosecutor countered, “[I]f you don’t know your Good Book, you might get thrown off the track by something like that.” But “tell him to read you, first of all, the commandment which says, ‘Thou shalt not kill,’ and then tell him to drop down just a few verses, where it says, ‘He that smiteth a man so that he die shall surely be put to death.’ ” The prosecutor added, “Today you wear invisible black robes. Today is judgment day. . . . I argue to you, I implore you, that the only appropriate punishment for both of these defendants in this case is death.”63 The judge then instructed the jury that if they found aggravating circumstances “sufficiently substantial” as compared to any mitigating circumstances, it was their duty to recommend a sentence of death. If they had reasonable doubt on any of those factors, then they should choose life. The jurors retired to deliberate at 5:17 p.m. At 8:05 p.m. they told the judge that they had reached a verdict as to one of the two defendants. The judge suggested that they return in the morning. They returned at 10:00 a.m., and at 10:37 the foreman reported unanimous recommendations that Leon Brown and Henry McCollum both be sentenced to death. The judge asked the defendants to stand. “Let the defen-
|
Inevitability of Innocence
43
Oregon, that have improved handling of eyewitness evidence in the courtroom.87 Still more troubling, Jackson and the Bridgeman brothers were just three of six death row exonerations nationally in 2014. There were six more death row exonerations in 2015. Death row exonerations are inevitable. Although DNA exonerations are particularly high profile, most death row exonerations, like Jackson’s, do not involve DNA. In addition to the twenty DNA death penalty exonerees, from 1989 to present there have been over one hundred others exonerated from death row based on other types of evidence. The National Registry of Exonerations and the Death Penalty Information Center detail each of those cases. Eight percent of known exonerations occur in cases in which defendants were sentenced to death. The cases are somewhat confession heavy, and about 20 percent included false confessions. A larger number, 28 percent, involved false or misleading forensic evidence. Still more, 70 percent, involved some form of witness perjury or false accusation, and 78 percent involved “official misconduct.” In general, homicide exonerations include 75 percent of all the false confessions in known exoneration cases.88 Are death penalty cases more prone to grave errors? Death penalty cases are more closely scrutinized than any other type of criminal case, so it may be that we simply learn about wrongful convictions in death penalty cases. People on death row remain there for decades. They have every incentive to protest their innocence, and they usually have lawyers working for them, even during habeas corpus proceedings, when there is no constitutional right to a lawyer. We know that there is a “uniquely high rate of exoneration” in death penalty cases, and as law professors Sam Gross and Barbara O’Brien have found, there is about a 4 percent rate of exoneration in death penalty cases.89 In the 1990s there were six exonerations a year from death row.90 The numbers have gone down
|
74
End of Its Rope
physical danger? Nope. I’m the kind of person: don’t call my bluff.” He added, as to the second murder, “Do I feel remorse for it? No.”66 After trial, his attorneys made efforts to raise the issue of mental illness. Nevertheless, Gleason was executed in 2013.67 For many clients, consulting with someone like Rideau can help provide a more realistic perspective on their options. Lawyers cannot work on death penalty cases without getting to know their clients and intensively researching their backgrounds. In the past, local lawyers might have “thrown in the towel” and given up on a client who was inconsolable or unable to communicate. Now there are experts on how to break through to an accused murderer, even one who wants to die.
Rethinking Mercy and Mental Health
We are now coming to grips with the fact that many of the thousands of people whom we have condemned to death were not models of mental health. That makes the death penalty inherently difficult to impose, but it is just the beginning of the national crisis we face in making sure that we are not cruelly criminalizing and warehousing people who cannot control themselves due to mental illness or mental disabilities. In the 1950s and 1960s, lawmakers shuttered public mental health hospitals that operated with inhumane conditions, but the result was that mentally ill people lacked housing, and many went to prison instead, where they receive very little treatment. Sheriff Tom Dart has worked to reform treatment of mental illness in the vast Cook County, Illinois, jail, noting that although “our society had determined that the state-run mental hospitals were abhorrent . . . I just find the irony so thick that the same society finds it OK to put the same people in jails and prisons.”68 Countless prisoners suffer from mental illness, from depression to bipolar disorder to schizophrenia. Federal studies
|
Mercy vs. Justice
75
suggest that as many as one-third of state prisoners and still more jailed individuals have been told they have a mental health disorder, and about 9 percent reported undergoing mental health treatment overnight at a hospital or other facility before their incarceration. Absent a diagnosis they may not receive any treatment.69 The Treatment Advocacy Center estimates that there are 356,000 people with mental illness behind bars.70 Some jails have still more pervasive problems: 40 percent of the inmates at New York City’s Rikers Island facility have mental illness or mental health problems.71 In Minnesota about 60 percent of those in jail and 25 percent of those in prisons have mental illness.72 The largest psychiatric facility in the state of Florida is the Miami-Dade jail. Local judge Steve Liefman pushed to create a special program to replace jail time with treatment for low-level defendants with serious mental illness. The county police began to use a Crisis Intervention Team (CIT) to identify people with mental illness upon arrest. For people in the diversion program, recidivism has decreased from 72 percent to less than 20 percent.73 In Cook County, which runs Illinois’s largest psychiatric facility, the sheriff’s deputy director of mental health policy screens for mental illness but calls the job “staggering”: practically “every other person I’m interviewing [is] mentally ill on any given day.”74 Unfortunately, what these reforms are accomplishing, and what Sheriff Dart thinks of as “the bare minimum,” is much more than many jails do. Faced with disturbed inmates, prison officials may place them in solitary confinement to protect other inmates, potentially making their condition far more severe. Or mentally disabled prisoners may be subjected to excessive force from prison guards, even resulting in deaths. Still others face neglect and disregard of their medical needs. Human Rights Watch, reporting on these conditions, calls them simply “callous and cruel.”75 Many state-run mental institutions were closed decades ago, with prisons
76
|
End of Its Rope
taking their place, but prisons lack adequate ability to diagnose or treat mental conditions. If we cannot even take care to avoid executing the disabled and the psychotic, how well do we treat prisoners facing lesser sentences? Death penalty cases like the Aurora trial provide a clarion call for decriminalizing mental illness. Most criminal defendants do not receive the careful mental health screenings now routine in well-handled death penalty cases. Death penalty cases show what a difference it makes if the defense can get quality experts who can comprehensively examine the mental health of a criminal defendant. All criminal cases require early intervention to do mental health screenings. Teams of lawyers and experts are not required to treat mental health effectively. Simple mental health screenings by police, like those conducted in Miami, might prevent, for example, unnecessary use of force against mentally ill people, or false confessions by youngsters like McCollum and Brown. To be sure, there is a real national shortage of mental health professionals.76 It takes more doctors to evaluate a person if there is a “battle of the experts,” like in a death penalty case, with experts on both sides. Another way to save resources is to supplement mental health screenings with mental health courts, like in Miami. These courts are designed not to punish but to provide an alternative to jail time if people keep up with their treatment. Many criminal judges see the same people repeatedly being arrested and punished rather than getting the medical treatment they need. Mental health courts can help to end that revolving door. It is important to be sure that such programs are not coercive and truly provide care to the mentally ill, but judges are learning how to run them effectively and fairly. The approach has been used for addicts as well, in drug courts that emphasize treatment over punishment. Alternative courts have spread rapidly. Programs for juveniles and minor drug
|
46
End of Its Rope
defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.”94 Federal district judge Jed Rakoff struck down the federal death penalty, stating, “We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency.” His ruling, however, was later reversed on appeal.95 More recently, in 2015 Justice Stephen Breyer dissented in a death penalty case and was joined by Justice Ruth Bader Ginsburg. He asked whether the current practice of the death penalty has become categorically unconstitutional, citing evidence from exoneration cases. He singled out the case of Henry McCollum, and noted that although there are endemic delays in death penalty cases, it took twenty years after the Supreme Court denied relief to McCollum, with only one justice dissenting, for the new DNA evidence to surface and to prove his innocence.96 The only way to avoid inevitable errors is to invest in getting criminal investigations right, and not just in death penalty cases, but in all cases relying on confessions, eyewitnesses, forensics, informants, and the rest. Our criminal justice system is less than perfect, but even without the death penalty the same challenges remain. We must take measures to protect against wrongful convictions. What measures are those? Coercive interrogation techniques should not be allowed, and confessions must be videotaped in their entirety. Judges should carefully review the reliability of all interrogation evidence. Police should be trained and required to take special care when questioning juveniles or disabled or other vulnerable individuals. Testimony from jailhouse informants should be restricted, and any testimony from informants or other incentivized witnesses should receive careful screening for reliability. Eyewitness evidence
|
78
End of Its Rope
ill individuals detained pretrial, including because they cannot afford bail. These efforts are only as good as the surrounding social safety net. Merely telling a mentally ill person, an addict, or a victim of abuse who commits violent acts to get treatment or face jail time is not enough. We need to commit far more resources to provide counseling, housing, health care, and mental health care. Sociologist Bruce Western puts it well: “In the past, we saw violence as an assault of the strong on the weak, and we punished it. Now we need to heal the frailty from which it springs.”80 Changing the orientation of courts so that they focus on rehabilitation is a big step. Improving the safety net so that violence does not beget vio lence in the first instance is even more important. Death penalty cases highlight how important it is to carefully investigate mental health issues in criminal cases. However, death penalty cases also make vivid the more fundamental problem that the criminal justice system should not be our first resort for treating the mentally ill. Instead, we need to replace criminal justice with social services.
4 THE GREAT AMERICAN DEATH PENALTY DECLINE
The sudden decline in the American death penalty is a social trend that speaks volumes about the present and future of our entire criminal justice system. Death sentences have declined by more than two-thirds since 2000, reaching the lowest levels seen in America since the early 1970s. Prosecutors obtained just thirty-one new death sentences in 2016, a remarkable decline from the mid-1990s, when prosecutors obtained over three hundred death sentences per year. And no one predicted that this decline would happen, much less so deeply and rapidly. Figure 4.1 shows the stark decline in the numbers of people sentenced to death each year in the United States. It is worth pausing over the graph to contemplate what it captures. The decline is no fluke. It does not reflect a short-term event like a moratorium in a key state. Although twenty states have abolished the death penalty, most that have done so in recent years, like Connecticut, Maryland, and New York, never imposed many death sentences. Instead, the decline has been felt across each of the death penalty states, with states like California, Florida, and Texas that have long dominated America’s death penalty landscape all experiencing this remarkable decline. Even Texas is fading fast: it imposed three death sentences in 2015 and four in 2016 (see Figure 4.2).
80
|
End of Its Rope
350 300 250 200 150 100 50 0 1995
2000
2005
2010
2015
Figure 4.1 Death sentences in the United States, 1991–2016. Sources: Bureau of Justice Statistics, U.S. Dept. of Justice; data collected by Author.
400 Capital Sentences
350 300 250 200 150 100 50 0 1980
1985
1990
1995
2000
2005
2010
2015
Year All others
Florida
Texas
California
Figure 4.2 Capital sentencing by top states, 1979–2016. Source: Data collected by author.
The Great American Death Penalty Decline
|
81
In addition to the biggest death penalty states, the midlevel states like Georgia, North Carolina, Oklahoma, and Virginia also experienced steady declines in death sentences. In 2015, North Carolina had no death sentences and only four capital trials. In 2016, North Carolina had just one death sentence, as did Oklahoma. Georgia had no death sentences in 2015 or 2016. Virginia has not had a single death sentence since 2011. The death penalty decline has occurred all across the southern Death Belt. Many dif ferent states began to experience the decline in 1999. The obvious question to ask is why? What is causing the death penalty decline? Before we can frame an answer, we must grapple with the explanations that have been put forward.
Before the Great Decline
Many seeking an answer to what could be causing this great decline turn first to a different question: why did death sentences go up in the 1970s and 1980s? By the late 1960s, people were saying that the death penalty was finished in the United States. There were fewer and fewer death sentences each year. Then in 1972 the Supreme Court struck down the death penalty as unconstitutional in its Furman v. Georgia ruling. Suddenly the trend rapidly reversed course. At least in hindsight, many thought the rise in death sentences made sense. Public support for the death penalty had been steadily falling since the 1940s, but by the early 1970s the death penalty came “back with a vengeance.”1 Backing for the death penalty remained in flux, with proposals to eliminate the federal death penalty attracting real support. Governors in Arkansas and Pennsylvania halted the death penalty, and the California Supreme Court abolished it.2 Yet many state lawmakers passed new death penalty laws in reaction to the Supreme Court’s ruling in Furman v. Georgia. At the same time, the United States was experiencing
|
82
End of Its Rope
a sharp and historic rise in crime, including in homicides, ushering in a “tough on crime” era in American politics. Richard Nixon ran a “law and order” campaign for the presidency in 1968 and appointed new conservative justices to the Supreme Court. The United States had a murder rate two to four times higher than that of most Western countries. As professors Franklin Zimring and Gordon Hawkins describe, the ubiquity of guns in the United States means that far more violent crimes turn lethal in this country.3 At the same time as this rise in crime and homicides, death sentences reached record levels. Many interpreters drew a causal inference: more murders produced more defendants to potentially receive the death penalty. The murder-rate explanation for the rise in death sentences, however, has real problems. For example, several states that imposed the most death sentences, like Texas and Virginia, had some of the lowest murder rates. At the county level the picture made even less sense, since very similar counties with similar murder rates varied wildly in the number of death sentences they imposed. Even by the mid-1960s, as murder rates were soaring in America, there were fewer and fewer death sentences, in part because the death penalty was declining in popularity. Looking abroad, Eu ropean countries all experienced similar spikes in violent crime during the same time period, the 1960s through the early 1990s, and those countries did not ramp up imprisonment. (They did not have the death penalty.) Yet beginning in the mid-1990s their crime rates declined, too.4
Race and the Death Penalty The death penalty has long served as an instrument for the white majority to exercise power over blacks and minorities, particularly in the South. In slave states before the Civil War, impris-
The Great American Death Penalty Decline
|
83
onment could not be used to terrorize people who were already captives; “the only punishments left were the death penalty, flogging, and other brutal physical treatment,” as legendary death penalty lawyer Stephen Bright puts it.5 Many states had laws specifying that minor crimes would be punishable by death if committed by slaves, but only by a slap on the wrist if committed by a white person. After the Civil War, lynching spread across the South. Some of the earliest Supreme Court death penalty rulings considered verdicts at mob-controlled trials of black defendants in the South.6 For many decades, death sentences were imposed disproportionately on black defendants, typically in cases with white victims and involving a rape and not a murder. Of the people executed for rape from 1930 to 1965, almost 90 percent were black. Over half of those executed in general had been black. When the Supreme Court struck down the death penalty in 1972, following a legal campaign waged by the NAACP Legal Defense and Educational Fund, Inc., these data figured in the justices’ rulings.7 However, when the Supreme Court reversed course and found new death penalty laws constitutional in 1976, the patterns of race discrimination persisted but in a different form.8 When Warren McCleskey, a black defendant charged with killing a white police officer in Georgia, challenged his death sentence at a trial with eleven white jurors and one black juror, he presented to the courts something new: the most sophisticated study ever conducted on the role of race in the use of the death penalty. Law professor and criminologist David Baldus led a comprehensive study looking at hundreds of factors present in every murder case in Georgia. What separated the 128 death sentences from 1973 to 1979 in Georgia from the over 2,000 murder cases that never received a death sentence? In a word: race. Specifically, the researchers found that a defendant was 4.3 times more likely, on average, to receive a death sentence if the victim was white
84
|
End of Its Rope
than if the victim was black. The researchers controlled for hundreds of factors, including how aggravated the murder was.9 You could call this a “white lives matter more” effect—cases with white murder victims received death sentences far more often than those with black murder victims. Yet in McCleskey v. Kemp, the Supreme Court said that while this landmark study “indicates a discrepancy that appears to correlate with race,” there was no constitutional problem. These statistics did not show a pattern that was sufficiently “stark” evidence of intent to discriminate. If the Justices accepted this claim of racial bias, others might challenge “other types” of penalties, and this could throw “into serious question the principles that underlie our entire criminal justice system.”10 Justice William Brennan famously retorted in dissent that the Justices betrayed a fear of “too much justice.”11 In the years since, David Baldus and many other researchers have done study after study in nearly every death penalty state, all reaching the same troubling findings: the race of the victim defines who gets sentenced to death. The U.S. Senate asked the General Accounting Office to review the literature; they found race effects in 80 percent of the studies. In a more recent review, over 90 percent of cases had effects based on the race of the victim, and an American Bar Association assessment of death sentences in major death penalty states found racial disparities in every case.12 North Carolina passed the Racial Justice Act in 2006 to study the role of race in death sentencing. After researchers began to analyze the data and found race a “significant factor” in death sentences, legislators followed the same “see no evil” approach of the Supreme Court: in 2013 they repealed the act.13 A disturbing remedy for the problem identified by these studies could be to charge more black defendants with the death penalty. Homicide rates are much higher for young black men than for any
|
52
End of Its Rope
base the verdict on a profoundly moral evaluation of the defendant’s character and crime, please raise your hand.” There was no response. “If your views on the death penalty would prevent or substantially impair the performance of your duties as a juror, please raise your hand.” None raised their hand.4 Sitting on a jury is a remarkable opportunity and a public ser vice, but serving in a death penalty case can be incredibly challenging and even quite traumatic. A Kansas judge recalled a capital trial in which jurors were “exposed to horrific testimony and photographs,” and in which he “saw jurors become nauseous and then emotional to the point of tears.”5 It is never easy to be a lone holdout juror in a criminal case, but the stakes are obviously much higher in a death penalty case. In the jury room, jurors have reported that they felt despair after being bullied into imposing a death sentence they did not feel personally comfortable with. Scholars who have extensively interviewed actual jurors who served in death penalty cases, as part of an ongoing set of studies called the Capital Jury Project, found case after case in which jurors reported that they mistakenly thought the death penalty was mandatory, or they reported how the foreman or others refused to let them vote for life and pressured them into joining the vote for death.6 The need for jurors who are “death qualified” means their selection is also more complicated. Many Americans strongly support the death penalty, but more have their doubts or even outright oppose it.7 If you have substantial doubts about the death penalty, the Supreme Court has long ruled that the prosecution can automatically exclude you from the jury. In the case of Witherspoon v. Illinois, a hanging judge picked a hanging jury. The Illinois trial judge had kicked out people with “conscientious or religious scruples” about the death penalty, saying, “Let’s get these conscientious objectors out of the way, without wasting any
86
|
End of Its Rope
black persons’ faces corresponded with an increased likelihood that people would sentence the person to death.17 Few lawmakers or prosecutors or judges have done anything to study—much less respond to—these entrenched problems with race discrimination at every stage, from the early decisions to charge someone with the death penalty, to jury selection, to trial. I will show in Chapter 6 how race-of-victim patterns persist to this day in county-level death sentencing, and I will describe in Chapter 8 how racial disparities are even greater among the relatively few death-sentenced inmates who are executed. The rise in death sentencing may have only magnified underlying problems with race discrimination.
The Great American Crime Decline
Even if the evidence doesn’t support the belief that the rise in crime in the 1970s, 1980s, and 1990s explains the period’s rise in death penalty cases, perhaps the more recent drop in murders can explain the drop in death sentences. Or, put differently, did the Great American Crime Decline, as law professor Franklin Zimring has called it, set the stage for the Great American Death Penalty Decline that followed?18 The circumstantial evidence is promising. Beginning in the mid1990s, crime fell across a wide range of demographics and geographic areas, both urban and rural. The decline was also across all types of crimes, from homicides to property crimes, and it occurred both in cities where new crime-fighting strategies received great public attention and in other cities where they did not. The best available data show a stunning decline in homicides in the early 1990s and continuing for more than two decades (Figure 4.3 illustrates these data). There are occasional spikes—for example, in 2001 due to the 9 / 11 attacks—and there was a rise
|
The Great American Death Penalty Decline
87
12 10 8 6 4 2 0 1980
1985
1990
1995
2000
2005
2010
2015
Figure 4.3 U.S. homicide rate per 100,000 people, 1980–2015. Source: Bureau of Justice Statistics, U.S. Dept. of Justice.
in 2006–2007. There was a spike again in 2015, with more murders in some large cities but not others. However, the long-term trend is consistent. Murders declined from almost 25,000 in 1991 to 16,000 in 2004 and under 13,000 by 2010.19 Crime in general is continuing to steadily fall. The steepest decline in murders occurred in the mid- to late 1990s. What is notable, and sobering, is the fact that no one predicted that murders or crime more broadly would decline in the 1990s. Instead, experts thought that even more crime was on the way. New laws were passed to target the coming waves of “superpredators” who did not materialize. So why is crime declining? Scholars have suggested many theories, including the increased imprisonment rate and the greater numbers of police officers on the streets by the late 1990s. Relatedly, some have argued that adoption of harsher sentences, such as three-strikes laws, might account for more imprisonment but
88
|
End of Its Rope
might have also deterred crime. Others theorize that factors outside of criminal justice may have reduced crime, for example, the age structure of the population (crime is mostly committed by younger people), the legalization of abortion, the waning of the crack epidemic, or the banning of lead in paint and gas.20 Most plausibly, the decline in crime is a larger social phenomenon in the United States and in other Western countries—the result of urban and suburban stability, a rise in living standards, and the spread of middle class values. Psychologist Steven Pinker has argued that violence is declining across the world, for reasons mostly having to do with modern values and practices. Indeed, the very same human rights ideals eroding the use of the death penalty in many countries may also be causing a decline in vio lence.21 In contrast, harsh punishments may be a symptom of the type of unstable, cruel, violent society that we must work to put behind us. The decline in murders clearly plays some role in the American death penalty decline. The decline in death sentences began in the late 1990s, just after murders began to drop. Yet the decline in murders cannot be the only explanation—and for that reason even if murder rates rise in the future, death sentences may still remain in a state of decline. There were never many death sentences per murder, and today there are fewer than three death sentences per thousand murders. Given that there are now over 15,000 murders a year and only a few dozen death sentences a year, any relationship between murders and death sentences is not very clear. While murders have declined modestly since 2000 (by about 10 percent), annual death sentences have fallen by 90 percent since their peak in the 1990s. Consider the fact that different states experiencing different drops in murders have all experienced a common decline in death sentences. Take Texas and North Carolina, which have both ex-
The Great American Death Penalty Decline
|
89
perienced remarkable declines in death sentencing over the last fifteen years. In Texas, murders fell dramatically in the 1990s, accompanied by a steep decline in death sentences. By contrast, in states like North Carolina, the numbers of murders have remained fairly stable since the 1990s, but North Carolina has also experienced a steep decline in death sentences. Any relationship between murders and death sentences at the state level is highly inconsistent. At the county level, however, as I describe in more detail in Chapter 6, there is a connection between murder rates and death sentences. It is even stronger if one looks at the delayed effect of murder rates on death sentences. However, I will explore how other factors also powerfully explain the differences in countylevel death sentencing. Still more troubling, the effect of murder rates on death sentences is most pronounced in a manner that is racially biased: it is the counties with more white victims of hom icide that impose more death sentences. Since about 2008 there have been so few death sentences that it is harder to observe any connection between murder rates and death sentences. There is a growing disconnect between the two. The death penalty decline may now have a life of its own, separate and apart from the decline in murders. What is driving it?
Public Opinion
One explanation could be that the general crime decline and the decline in murders catalyzed a broader change in public opinion. The crime and murder drop could have pushed people past a tipping point; as people became less fearful about crime, they became less inclined to seek harsh punishments for offenders. Prosecutors, jurors, judges, and the public may all feel less punitive when an atmosphere of anxiety about crime starts to clear. Perhaps after several years of crime decline, by the end of the 1990s,
56
|
End of Its Rope
shooting was carefully planned, with use of tear gas to cause audience confusion, special purchases of firearms and steel “penetrator” ammunition, and plotting out where the exits were and which were locked. Holmes “picked the time, place and manner of their deaths.” Holmes booby-trapped his apartment, so when police later searched his apartment, they had to remove more than twenty homemade explosives. Walking closer to the jury, the prosecutor spoke about the victims. Much of the prosecutor’s closing argument was spent showing the jury photos, again, of the shooting scene and replaying the 911 call. He said that they were all now “experts in a way in mental health.” The prosecutor called Holmes “[s]ane, sane, sane.” Stepping back from the jurors, he emphasized how Holmes “made sure . . . that one person and one person alone would be guaranteed to survive, and that was him.” This was a moral decision, but one about “moral culpability” for the crimes. “And for James Eagan Holmes, justice is death. Death.” In summer 2012, James Holmes abruptly changed his hair to “an orangey-red. . . . It was kind of wild,” recalled his landlord. Something changed. Holmes dropped out of school, quit his work, applied for unemployment, and “sought counseling from the student mental health center.” When police searched Holmes’s apartment, they found medication for treating depression, panic disorders, and anxiety. During the trial, James’s parents sat the entire time and watched without expression, but privately they prayed, “Please don’t commit suicide.”15 “The measure of our soul is in how we treat people who are sick and who are damaged,” the defense attorney pleaded at sentencing, when it was her turn to respond. She was speaking calmly and slowly, much like the prosecutor had, and she stood, like the prosecutor had, right in front of the jury box, facing the jurors directly. The courtroom was again completely quiet. With mental health evidence at the center of the case, the lawyer asked, “How
The Great American Death Penalty Decline
|
91
but do not normally believe that it could happen in the case that they decided. Has any change in public opinion been in response to the drop in violent crime or murders? People responding to the polls have actually emphasized other concerns. Most striking, many Americans have responded to polls by saying the death penalty is unfair because “sometimes an innocent person is executed,” with others concerned that it is unfair because it is “applied differently from county to county and state to state.”27 People express strong concerns about wrongful convictions: 11 percent cited that concern in 1991, 25 percent did in 2003, and 17 percent did in 2014. There is also a racial divide in public opinion. White Americans and older Americans are more likely to support the death penalty, as are Republicans—but those differences have narrowed over the past decade.28 The changes in public opinion may not translate directly into what happens in death penalty cases, but there may be some kind of a tipping-point story that can be told. At some juncture, public opinion may finally start to creep into decisions by prosecutors and judges and jurors in ways that are hard to measure. There is some evidence that today more jurors in death penalty cases are open to the possibility that life without parole is appropriate.29 If that is true, changes in public opinion may give defense lawyers more room to try to select those jurors and appeal to them, as they did in the Aurora case. Perhaps public opinion is also affecting prosecutors, who are typically elected and may be less gung ho about the death penalty if voters are not as set on it. Today, prosecutors have won elections in formerly staunch death penalty counties while openly opposing the death penalty. Public opinion may also be affecting judges, who are elected in many death penalty states. Certainly, absence does not make the heart fonder: with fewer executions and death sentences, people may increasingly
92
|
End of Its Rope
forget why they were ever so concerned that some murderers be sentenced to death.
Does the Death Penalty Deter Murder?
Things did not look so rosy in the mid-1970s, when the United States and much of the Western world experienced an explosion in violent crime. At a momentous time in the history of the American death penalty, just after the Supreme Court had found it unconstitutional in 1972, economics professor Isaac Ehrlich prominently claimed that every execution deters eight murders. When the Court brought the death penalty back in 1977, the Justices cited Ehrlich’s study as evidence that the death penalty deters. Other economists have repeated Ehrlich’s studies using similar designs. Those scholars have testified in Congress, claiming that “almost all modern studies” have found “a significant deterrent effect of capital punishment.”30 The death penalty itself deters murders, they argued, and more death sentences and executions explain why murders have gone down. The notion that the death penalty deters murders has a powerful appeal even if it is flawed. Shouldn’t murderers think twice before risking the death penalty? As law professor and economist John Donohue recounts, an economics professor once told him at a workshop, “Come on, we know the death penalty deters. If you had the death penalty for illegal parking, no one would do it.”31 Of course the death penalty would provide a deterrent for illegal parking, but the proper question is one of marginal deterrence: would the death penalty provide measurably more deterrence than life without parole or, for illegal parking, a really expensive ticket? Back in 1924 the legendary trial lawyer Clarence Darrow called the notion that the death penalty deters crime nothing more than an “ancient superstition.”32 There are plenty of good reasons for
The Great American Death Penalty Decline
|
93
a person considering murder to think twice, even without facing the death penalty. One reason is life without parole, now available in every death penalty state. Murderers, though, may not have any idea what the death penalty law is—these days it is not easy to keep track of whether executions are happening or in which states. A murderer may not be thinking rationally at all but instead may be acting in the heat of passion or be severely mentally ill or disabled. The professor who ignited the deterrence debate, Ehrlich, happened to do his work just after the late 1960s, when death sentences had dropped rapidly but crime was on the rise. Yet death sentences had been dropping steadily for decades since the 1930s without any rise in crime, as scholars pointed out. A report by the National Research Council, the research arm of the National Academies of Sciences, the leading scientific organization in the country, concluded in 1978 that there was “no useful evidence on the deterrent effect of capital punishment.”33 A thorough debunking by law and economics professors John Donohue and Justin Wolfers showed how making minor changes in the models that those studies used would spit out wildly different results from the equations the deterrence camp was using—like every execution leads to between twenty-nine and forty-two more murders. Thus, “[O]ne has little reason to prefer the conclusion that the death penalty will save lives to the conclusion that scores will die as a result of each execution.”34 A 2012 review by the National Research Council agreed, expressing disappointment that thirty years of deterrence studies had produced no informative evidence at all.35 Today, the death penalty deterrence story makes even less sense. In the past decade and a half murders went down, but death sentences have gone down even faster. Moreover, murder rates went down not just in states that have the death penalty, but also in states that entirely abolished the death penalty. And the same
Mercy vs. Justice
|
59
$1.6 million on detaining Holmes, transporting him back and forth to court, and handling courtroom security during the lengthy trial. The total cost may have been over $7 million, not including the costs of the defense.17 Of course, the prosecutors had the resources of police departments and crime labs and grant funding to handle complex cases. Public defenders lack all that manpower and funding. Yet through a sustained appeal to mercy, in an intensely lengthy and complex case, the defense achieved a partial victory. Meanwhile, there have been only two death sentences in Colorado in the past decade. The Colorado Method may be part of the reason why, and it works because it conveys why each juror must be capable of making an individual moral decision. The prosecutors could have avoided a trial. Early on, the defense said that Holmes would accept a plea for life without parole. One of the victim’s brothers tweeted after the trial, “This trial should have never happened. Defense offered a plea to life in prison, but political ambition trumped reason.”18 Now perhaps the prosecutors did not sufficiently appreciate how the mental health evidence would affect jurors. But in a state with the death penalty, it is not hard to understand why the prosecutor would seek the death penalty for such a horrifying murder. The mother of one of the victims, responding to the verdict, asked, “Why do you even have a death penalty if you’re never willing to use it?” Or putting it differently, if there are genuine questions for jurors in even the most serious mass shootings imaginable, then one wonders what if anything the death penalty should be used for.
Wake County, North Carolina
The jury deliberated for three days before reaching a decision in the case of Samuel Cooper, on trial in 2010 in Wake County, North Carolina, for killing five people in a series of robberies. It
The Great American Death Penalty Decline
|
95
penalty deterrence studies but also the murder-rate explanation for the decline in death sentences. Fewer and fewer murders mean fewer and fewer murders eligible for the death penalty. Yet deatheligible murders may be declining somewhat more slowly than murders in general. Meanwhile, death sentences are declining much faster than murders in general. At most, professors David McCord and Talia Harmon estimate that less than half of the decline in death sentences could be accounted for by the decrease in murders.39 Statistical analysis presented in Chapter 6 confirms that the decrease in murders is an important factor, but also that something else, beyond the national decline in murders, must also explain the sudden death penalty decline. Perhaps changes in the law at the state or national level can help explain the decline in death sentences. One possibility that many lawyers and commentators mention is that the death penalty has gradually come to be replaced with sentences of life without the possibility of parole, or LWOP.
Life Means Life
“Now you have a choice. Before, you didn’t,” the Dallas County District Attorney put it.40 Life without parole is new to the United States, and offering it as an option seems like a change that must explain the drop in death sentences. Before the 1970s there were no true “life” sentences for crimes, since lawmakers adopted the view that all prisoners should be redeemable. Thus, in practice, a “life” sentence usually meant that after ten or fifteen years parole was at least a possibility. For federal prisoners, until Congress abolished parole in the 1980s, parole reviews were conducted after fifteen years. In Louisiana, a prisoner serving life would be released after about ten years in prison, with good behavior. Only seven states had LWOP before 1972.
|
96
End of Its Rope
Today, however, “life means life.” LWOP took on steam during the same time that the death penalty began its steady rise. When the Supreme Court declared the death penalty unconstitutional in Furman v. Georgia, the same backlash that brought the death penalty back to life led to a surge in states adopting LWOP. Some states, like Illinois and Louisiana, did so in direct response to Furman. Others, acting in the 1980s, did so in response to a new skepticism at the possibility of rehabilitation and to a rise in “tough on crime” attitudes generally. By 1990 thirty-three states and the District of Columbia had adopted LWOP. By 2012 all the remaining states had done so except Alaska (which has prisoners serving very long sentences, but they are not called life without parole). Six states, like the federal system, entirely eliminated parole, and not just for prisoners serving life. Many lawyers whom I talked to about what could be causing the death penalty decline pointed to the adoption of LWOP statutes. The LWOP explanation certainly made sense to me. We know that jurors are very concerned about future dangerousness: is there a chance that this murderer will walk the streets again? Jurors should be all the more focused on future dangerousness in states like Texas and Virginia, where the judge instructs them to consider it. When jurors were concerned that “life” did not really mean “life,” they were understandably more willing to sentence a person to death.41 Today, a jury has far more reason to believe that “life” really means “life without parole.”42 And for their part, prosecutors might not bother to seek the death penalty as often if they can more cheaply get a deal where the defendant agrees to an LWOP sentence. “When you start passing throw-away-the-key bills, you’re effectively eliminating the death penalty,” argued longtime Harris County (which includes Houston) district attorney Johnny Holmes, Jr., who had long opposed life without parole. On the
The Great American Death Penalty Decline
|
97
other side of the debate, some death penalty opponents have hailed LWOP statutes. If LWOP is available, prosecutors can’t tell a jury, “If you do not sentence this man to death, he will be back on the street.” The National Coalition against the Death Penalty called life without parole “a sensible alternative to capital punishment.” Kathleen Sebelius, then an anti–death penalty governor in Kansas, signed LWOP legislation in 2004, calling it an option that is both “cheaper in the long run” and a useful alternative for “people who should never walk the streets again.”43 LWOP laws would afford all the benefits of the death penalty but without the executions. Death penalty opponents had good reasons to think that LWOP would discourage jurors from imposing death sentences. After all, public opinion polls have long suggested that people support the death penalty far less when LWOP is an alternative. Studies of capital jurors across a range of states suggest that jurors are far more likely to impose a life sentence over a death sentence if they think that a defendant will serve an actual life sentence. Even the most hard-core defenders of the death penalty find LWOP persuasive.44 Texas governor Rick Perry holds the record for overseeing more executions than any other American governor during his eight years in office: 279. He was no death penalty reformer. He wrote, “If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas.” But Perry eventually came around and supported a life without parole measure, saying that it “could improve the criminal justice system” by giving jurors “a new option to protect the public with the certainty a convicted killer will never roam the streets again.”45 Why would Rick Perry do that? It is highly doubtful that he bent to pressure from death penalty opponents. When Texas adopted life without parole in 2005, the Dallas Morning News explained, “Death penalty reformers,
62
|
End of Its Rope
coaches, friends, and Sister Helen Prejean, portrayed in the movie Dead Man Walking, who said she had visited Tsarnaev and that he felt remorse. However, the prosecutors also called large numbers of witnesses, including victims and relatives of the three people killed and 260 injured at the Marathon, as well as relatives of the police officer whom the brothers had killed later. Nor was there any evidence of mental illness or disability. Using jury verdict forms, the jurors tallied each of their “votes” on which mitigating factors they found relevant. They did not have to agree on each of the factors. We know something about what the jurors were thinking based on these forms. All the jurors agreed that Tsarnaev was only nineteen years old and had no history of violent behavior. He had family members, teachers, and friends who cared for him, and he had a father disabled by mental illness and brain damage. The jurors mostly did not believe that Tsarnaev had expressed “sorrow or remorse,” or that he was unlikely to commit violence again even while serving a life sentence in federal custody. Nor did most of them believe that he had acted under the influence of his older brother.24 It was only after the jury reached its verdict, when Tsarnaev was standing before the judge only, that he spoke about what he had done: “I am sorry for the lives that I’ve taken, for the suffering that I’ve caused you, for damage that I’ve done. Irreparable damage.” One local prosecutor commented, “His lack of remorse sealed his fate.”25
Juveniles, the Intellectually Disabled, and the Death Penalty
At Leon Brown and Henry McCollum’s trial, the defense lawyers tried to emphasize the youth of the two boys as mitigating factors for the jury to consider. McCollum’s lawyer emphasized that he
|
The Great American Death Penalty Decline
99
2000s, when death sentences were already dropping, continued to see their death sentences drop, unaffected by the adoption of LWOP. Texas is a remarkable case in point. Texas adopted LWOP late in the game, in 2005, but once that happened the state did not experience any new drop in death sentences. In fact, death sentences had already experienced the bulk of their decline in Texas before 2005. When LWOP took effect, Texas continued to experience the same gradual decline in death sentences, as if nothing had changed. States like California and Pennsylvania have had LWOP for decades, but they, too, saw a steady decline in death sentences during the same time period—that is, after 2000, when other death penalty states also experienced the decline. In contrast, the states that adopted LWOP during the 1990s saw a sharp rise in death sentences after life without parole was adopted. In Virginia, death sentences went up for almost an entire decade after LWOP was adopted in 1995, reaching record numbers. The numbers of death sentences did not start to fall in Virginia until 2004, long after LWOP had taken hold. Other states adopted LWOP early on but still experienced a surge in death sentences in the 1980s and 1990s. California adopted LWOP in 1979, when it brought back the death penalty, and it has imposed over 900 death sentences in the years since. There was not much debate at the time about including LWOP, but during the debates, Governor Jerry Brown, who personally opposed the death penalty, had proposed LWOP as an alternative and had even suggested giving up the ability to commute the sentences of prisoners who received LWOP in an effort to argue that the death penalty would then be unnecessary.48 In Missouri, LWOP was introduced in 1984; it levied only twenty-four death sentences between 1979 and 1984 but 173 death sentences in the years since. Another study that focused on executions and not
100
|
End of Its Rope
death sentences also found that adoption of LWOP is a “relatively minor factor” in the drop in executions, which also makes sense.49 This calls into question death penalty opponents’ belief that embracing LWOP is a way to undercut the death penalty. The consequences might in fact be far more pernicious. While LWOP is not strongly associated with the decline in death sentences, the application of LWOP laws has led to tens of thousands more people being locked up for life than could ever have been sentenced to death. When Kansas approved LWOP, only a handful of legislators objected, and only one noted that LWOP takes away hope of rehabilitation: “I think the state should work towards rehabilitation,” the holdout senator explained.50 The push to broaden LWOP may have been a devil’s pact that did not greatly affect the death penalty, but it created a massive “life row” in this country, full of thousands of people who could never have been sentenced to death and who now have no hope of rehabilitation or release.
An Innocence Effect
Is there an “innocence effect”? Some, like prominent abolitionist Richard Dieter have argued that “probably the most significant cause” for the death penalty decline must be “the innocence issue,” particularly due to the emergence of DNA testing and DNA exonerations.51 That theory made a lot of sense to me. I have studied DNA exonerations for years, and these wrongful-conviction cases forever changed how I perceive the criminal justice system. Exoneration cases like those of Henry McCollum are incredibly disturbing, and they have received a great deal of public attention in the national and local media. DNA exonerations began to pick up steam by the late 1990s, right around the time that death sentences began to decline. Some states clearly abolished the death penalty because of concerns about wrongful convictions—such
The Great American Death Penalty Decline
|
101
as the state of Illinois, where in 2003 the governor commuted the sentences of the entire group of 167 individuals on death row following the exonerations of thirteen death row inmates. Yet I was surprised to learn, when looking at the data on death row exonerations, that there is not any association between death row exonerations and any change, over the years that followed such exonerations, in the numbers of death sentences in a state. To be sure, any innocence effect may be more diffuse and hard to pin down. In general, and not just in any one state, people may be far more aware that wrongful convictions can happen, even in death penalty cases. This may be impacting the decisions of prosecutors and of jurors. But take Florida, the state that has had the most death row exonerations: there is no discernable impact of those forty-plus exonerations on Florida death sentencing. The larger pattern that I have observed is more chilling: the states with the most death sentences have the most death row exonerations. Wrongful convictions may not be reducing death sentences, but wrongful convictions may be a fixed product of death sentences. The inevitability that innocent people will face execution if we have the death penalty could not be more sobering.
State Abolition
Another possible explanation for the decline in death sentences is that more states have abolished the death penalty. As of early 2017, nineteen states no longer have the death penalty, and of those, eight have abolished the death penalty since 2000. Each year, legislation to abolish the death penalty has been introduced in a range of states, and more states may abolish the death penalty in the future. (To be sure, Nebraska voters voted in fall 2016 to restore the death penalty, repealing legislation that had abolished it.) However, abolition cannot explain the death penalty
Mercy vs. Justice
|
65
Instead, sound medical practice must inform the life-or-death decision of whether an individual is intellectually disabled or can be sentenced to death.
Mental Illness and the Death Penalty
Huge numbers of mentally ill individuals sit on our death rows. Many are executed. A recent study found that one in ten death row inmates is a veteran, many with service-related posttraumatic stress disorder.39 In 2015, half of the twenty-eight people executed in the United States were mentally disabled, had brain injuries, or had severe mental illness. They included Warren Hill, executed in Georgia despite an IQ of seventy and the testimony of doctors hired by the state who concluded that he was intellectually disabled; Cecil Clayton, executed in Missouri although he had lost 20 percent of his prefrontal cortex in a sawmill accident; and Robert Charles Ladd, executed in Texas despite an IQ of sixtyseven.40 Why is this still happening? For hundreds of years, executing the insane has been branded as “savage and inhuman.” Sir Edward Coke wrote that under the common law of England, “[B]y intendment of Law the execution of the offender is for example, . . . but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extreme inhumanity and cruelty, and can be no example to others.”41 In 1986 Justice Thurgood Marshall wrote, in Ford v. Wainwright, that “the execution of an insane person simply offends humanity.”42 Outright insanity should be easier to show than disability, but even insanity can be contested in the courts. An outright insane person cannot be executed, to be sure, but if an inmate has some understanding that their actions are the reason why they will be executed, courts let the execution happen. Only psychosis might bar execution, and many death penalty states do not take
The Great American Death Penalty Decline
|
103
penalty’s decline. Decades of the Supreme Court Justices’ “slow dancing with death,” as law professor James Liebman has aptly and morbidly put it, did not restrain the death penalty from reaching new heights in the 1990s. One set of legal changes occurred right at the time that death sentences were declining, providing a chance to assess whether judges’ rulings can trigger such a decline. For many years, in some states, judges could impose the death penalty. Hanging judges, you could call them. In many states judges are elected, and they would even campaign on how pro–death penalty they were. Allowing the judges to impose death sentences came to something of a halt, though, after the Supreme Court’s 2002 ruling in Ring v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge.53 Some states still allowed the judge to overturn the jury recommendation and impose the final sentence. Delaware allowed it but then abolished the death penalty in 2016. Alabama, however, still allows judge “overrides.” They should be declared unconstitutional, and perhaps soon they will. Could the Supreme Court’s ruling in Ring help to explain the death penalty decline? The nationwide death penalty decline began in 1999. The change to jury versus judge sentencing in 2002 did not result in any strong correlation with a decline in death sentences. Any small correlation is not a reliable one, and it chiefly comes from very small states, particularly Delaware, that had high death-sentencing rates despite the paltry numbers of murders committed there. Just about every death penalty state quickly complied with the Supreme Court’s Ring ruling—including Arizona and Nevada, which did not then experience a sharp decline in death sentences. The exception is the largest state with judge sentencing:
104
|
End of Its Rope
Florida, which went right on violating Ring for over a decade. Florida was in a class of its own. The jurors did not have to be unanimous in Florida death sentencing. Death could be imposed by the jury with a seven-to-five vote. Nor did Florida capital jurors have to say why they voted the way they did. Their majority vote (if it was a majority, since three jurors could find one factor and four another factor) was also just a recommendation. What ever the jury said was only “advisory,” since the judge made the final call. The judge could also override the jury. The American Bar Association, in an assessment of the Florida death penalty, singled out this feature of the law as fundamentally flawed. Since their role was so limited, jurors in Florida death cases described how they took the decision “lightly,” “pretty much had [their] minds made up,” and took their “vote in 30 minutes.” Finally, in 2016 the Supreme Court in the case of Hurst v. Florida ruled that Florida’s death-sentencing law violated the Sixth Amendment right to a jury trial.54 The Delaware Supreme Court found its death penalty unconstitutional following the U.S. Supreme Court’s ruling in Hurst.55 Florida may overtake Texas in numbers of death sentences, but much of its death row consists of hundreds of individuals who were sentenced to death under an unconstitutional scheme. Still worse, a Florida Senate analysis of 296 jury votes in capital trials from 2000 to 2012 found that only 20 percent were unanimous. If the jury was given an actual choice and a full vote on whether to sentence to death, we might have seen far fewer death sentences in Florida. Moreover, when Florida legislators passed a new death penalty statute after Hurst, in 2016, the Florida Supreme Court struck it down, because it did not require that the jurors be unan imous in sentencing a person to death. Each juror, the court said, should have a chance to exercise a vote for mercy.56 The Florida Supreme Court separately ruled that judges must go back and
|
The Great American Death Penalty Decline
105
apply Hurst retroactively, reexamining the hundreds of death sentences under the previous unconstitutional scheme.57 As a result, judges may overturn many old Florida death sentences in the years ahead. In current death penalty trials, the Florida Supreme Court also ruled that jurors must be unanimous.58 Nevertheless, these legal changes still do not explain why the death penalty has already declined over the past decade and more. So, the question remains: what explains the decline? The high numbers of death sentences in the 1970s through the 1990s had always mostly come from a small number of counties in a small number of states. The steady decline in murders in our country is clearly part of the explanation, but it does not alone explain the decline in death sentences. People softening their support for the death penalty as crime and murders dropped may have also played a role. Other legal changes like adopting life without parole or switching from judge to jury sentencing do not provide such convincing explanations. As I will describe in Chapter 5, perhaps the most important explanation for the Great American Death Penalty decline has so far been missing: a defense-lawyering effect. Today, lawyers far more often use the same tools that helped the defense win a life sentence in the Aurora theater shooting trial. Today, more people facing the death penalty are defended by offices with investigators and lawyers whose job it is to handle death penalty cases—and they increasingly win mercy. Perhaps it takes a team.
68
|
End of Its Rope
approximately 10 percent of individuals on death row were veterans.46 In response, some states are now considering broader legislation to prevent execution of the severely mentally ill. Lawmakers in Ohio and other states have considered barring the death penalty for those who have a clinical diagnosis of schizophrenia, schizoaffective disorder, bipolar disorder, major depressive disorder, or delusional disorder.47 Former Ohio Attorney General Jim Petro spoke in favor of the Ohio bill, noting that he now opposes the death penalty, in part because severely mentally ill people may confess to murders they did not commit, and even if they are clearly guilty, they cannot be “the worst of the worst.” He recalled that as attorney general, he executed “at least three persons with some level of mental illness,” including a man with “paranoid delusions,” a man with depression, and another with “major depression with psychotic features”—and all three “waived their rights at some point and volunteered for execution.”48
Sentencing McCollum and Brown
The sentencing of Henry McCollum and Leon Brown is a perfect example of typical defense lawyering from the heyday of the death penalty—no real case for mercy was made and no significant evidence about intellectual disability was presented—while the prosecutor cried for harsh justice. Not only do we now know that the evidence of their guilt was outright false, but their defense lawyers handled the trial poorly, even without the benefit of the DNA tests that thirty years later proved the brothers’ innocence. At their sentencing trial, the self-styled America’s Deadliest Prosecutor spared no emotion in his arguments to the jury:
Think about the fear, the fear, ladies and gentlemen of the jury. “I want to go home.” Couldn’t go home. . . . And then
|
The Defense-Lawyering Effect
107
victim. Burdine’s lawyer not only slept at trial; he also performed minimal investigation or preparation beforehand. It showed. The trial was short, with just twelve hours of testimony. The lawyer did not call any witnesses during the sentencing and gave the jurors no reasons to sentence Burdine to life instead of death. The lawyer did not object when the prosecutor made homophobic remarks about Burdine. The jurors deliberated for just seventeen minutes. After the conviction and death sentence, Burdine’s new lawyers argued that the Sixth Amendment to the Constitution, which guarantees a right to the assistance of a lawyer in criminal cases, entitles a defendant to a minimally competent and effective lawyer throughout the proceedings. As they put it, a “warm body is not enough under the Sixth Amendment.” The federal judge who heard the habeas petition in the case understandably thought the conviction should be reversed, since “sleeping counsel is equivalent to no counsel at all.”2 Burdine’s case became high profile when the appeals judges overturned the lower federal court’s reversal and reinstated the death sentence. The state had argued that the defense lawyer’s “intermittent sleeping” did not really harm the client. The three federal judges agreed. In 2001, another panel of federal judges reversed again and ordered a new trial for Burdine. Unlike a “drunk or drugged” lawyer, an “unconscious attorney is in fact no different from an attorney that is physically absent from trial.” Amazingly, several of the appellate judges disagreed, saying the lawyer may have “dozed” but not “slept.” They questioned how “many times he slept,” or how “deeply he slept,” whether nodding or bobbing reached the level of “unconsciousness,” or what precisely was happening in the courtroom while he slept.3 The sleeping-lawyer case attracted state and national attention. Governor of Texas (and then–presidential candidate) George W. Bush was asked about sleeping lawyers in his state’s death penalty
108
|
End of Its Rope
trials. Burdine was not alone. His lawyer sent ten people to death row. Another client, Carl Johnson, was executed in 1995, after appellate judges denied relief.4 George McFarland, still on death row in Texas, had a county-assigned attorney who slept during trial. The trial judge commented, “The Constitution says every one’s entitled to the lawyer of their choice,” but “[t]he Constitution doesn’t say the lawyer has to be awake.” The appeals court thought that perhaps the second lawyer let the lead lawyer sleep “as a strategic move.” As legendary death penalty lawyer Stephen Bright put it, “For poor people facing the death penalty, this is what it means to be represented by ‘the Dream Team.’ ”5 Twenty years after the 1984 trial, Burdine’s ordeal was not over, even after the appeals judges reversed his conviction. The controversy did push Texas lawmakers to adopt a “Fair Defense Act” with improved standards for picking death penalty lawyers. But back in Harris County, the prosecutors prepared to retry the case, and the judge tried to bar the habeas lawyer who had fought the case for twenty years from representing Burdine. After what had happened at his original trial, Burdine refused to accept a lawyer the judge appointed. The judge responded by setting a trial date in three months, which “would have been the fastest capital trial in Harris County history.”6 Outcry resulted again, with the Harris Country Criminal Lawyer’s Association writing an open letter to the judge, saying, “Mr. Burdine’s retrial offers not only a second chance for Mr. Burdine, but also a second chance for this County to demonstrate that we are not asleep on the job, that our courts do take the rights of individual citizens seriously.”7 In response, the judge fi nally gave more time for a new team to investigate. A new lawyer stepped in and worked for over a year to uncover new evidence and eventually to secure a life sentence for Burdine, assembling a group of volunteers in Texas and internationally along the way. Together, they went on to found the Gulf Region Advocacy Center
The Defense-Lawyering Effect
|
109
(GRACE), a project to provide better trial lawyering in Texas and Louisiana. The project, initially a “scrappy little group of volunteers,” as leading abolitionist Sister Helen Prejean put it, has grown into a large office that has handled over fifty death penalty cases and that teaches other lawyers how to handle investigations and trials in death penalty cases.8
Gradual Change in the States
One of the many shocking facts about the death penalty in the United States is that although these cases involve the most serious crimes imaginable, the bulk of them are hardly a model for good lawyering. If anything, the deck has seemed stacked against the defendant. In the 1980s and 1990s, many states imposed cut-rate caps on lawyers’ pay—for a time in Virginia, the effective rate for a defense lawyer was thirteen dollars an hour—trials were usually short, and courts regularly let death sentences stand even when defense lawyers had fallen asleep in court, showed up drunk, referred to their clients with racial slurs, or even admitted they had not prepared for trial.9 I believe that an important and underappreciated part of the great American death penalty decline represents the hard work and innovations of defense lawyers serving clients in the most challenging of criminal cases. While death sentences have declined in every death penalty state, they have declined far more in some states than others. Explanations like life without parole and changes from judge to jury sentencing do not fully explain why some states have almost completely stopped sentencing people to death while others still maintain death sentencing. I find that the answer is straightforward: improved defense lawyering and greater resources produce real differences between state death sentence rates. Defense lawyering in death penalty cases had long been abysmal, and states did very little to ensure that such lawyers met
Mercy vs. Justice
|
71
gerous to society and they are dangerous to young girls.”54 The prosecutor asked, “Have you seen the first tear of remorse from either one of these defendants sitting at the next table?”55 The “good within” the brothers, the defense lawyers emphasized, should weigh in the minds of the jurors, and to counter the aggravating circumstances that the prosecution raised, the defense could introduce mitigating circumstances. There is no set list of topics the defense can bring up. As the U.S. Supreme Court has put it, a defense lawyer can put before the jury “any aspect of [the defendant’s] character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”56 There are “virtually no limits” placed on the evidence a defendant may introduce “concerning his own circumstances.”57 But, at this stage, as the prosecutor in the McCollum case made sure to point out, “for the first time in this trial the burden is on the defense.”58 Today, defense lawyers would be expected to do far more to shoulder that burden. A series of Supreme Court decisions since the late 1990s have made clear that defense lawyers have an obligation to investigate mitigation, including the defendant’s background, and including by consulting experts on subjects such as intellectual disability and mental illness.59 What investigation did these lawyers do? Not much, apparently. Both McCollum and Brown were intellectually disabled. The jury heard almost nothing about it. There was no parade of highly credentialed experts like at the Aurora trial. Brown’s lawyer, in a very brief statement, said, “[W]hat purpose is it going to serve to put that retarded young boy in the gas chamber? What purpose is it going to serve?”60 Henry McCollum put his case best himself: “I’m sorry about the death but I didn’t kill her.”61 McCollum’s lawyer pleaded for his client’s life for just minutes; his closing arguments were only a few pages long in the reporter’s transcription,
The Defense-Lawyering Effect
Capital punishment abolished
Capital representation by state
Limited state-level resources
No state-level capital defense
|
111
Figure 5.2 Capital defense regimes, 2013. Source: Data collected by author.
qualified lawyers in death penalty cases. By 1990 nine states had done so, including major states like California, and a few additional states provided some limited assistance statewide at trial, even if they did not outright provide a lawyer. In recent years, a substantial change in defense lawyering has occurred in many death penalty states, but certainly not all of them. This is tragic for some defendants, but it allows us to answer a question: what is the defense-lawyering effect on death penalty cases? By 2013, almost all death penalty states provided statelevel capital representation at trial, with a few others providing some limited resources, and only a few holdouts, most notably Alabama, Florida, and Nevada, that provide no state-level capital defense. Figure 5.2 displays which states had capital defenders in 2013. The American Bar Association (ABA) has for decades set out guidelines for appointment and performance of defense lawyers in death penalty cases. The ABA has emphasized that
112
|
End of Its Rope
there should be a “responsible agency,” or some organization, to make sure that defense attorneys in a state are adequately trained and supervised. The ABA has done assessments of death penalty states and found that many do not satisfy minimal standards. The ABA found that Alabama, for example, has a “failing” and “patchwork” system for providing lawyers to the indigent in criminal cases generally, with those problems “exacerbated” in death penalty cases.12 What does comparing these states and death sentence prosecutions tell us?13 In brief, it tells us this: the defense-lawyering effect provides a stronger explanation for the death penalty decline than any so far considered. In examining what is associated with the decline in death sentences in particular states, law student Ankur Desai found that having statewide defense resources and assistance is strongly associated with the decline. He found that robust effect even when controlling for the numbers of homicides in different states, and by using a series of statistical models and regressions, such as controlling for “fixed effects” or other factors which might cause a given state to persist in the same death-sentencing patterns over time. Even when the analysis was simplified, simply determining whether a state had a statewide capital defense office or something less than that showed a strong statistical association between the states that had such offices and those that experienced the greatest death penalty decline. The effect of state-level capital trial defense was more than twice as strong as the weak effect associated with adopting life without parole. It was a much more consistent effect across all the states than any effect of the decline in murders. One sees this pattern vividly in states that adopted statewide capital defender offices and then experienced a marked drop in death sentences. To be sure, all the death penalty states have experienced a decline in death sentencing over the past fifteen years,
The Defense-Lawyering Effect
|
113
not just the ones that created statewide capital defenders. But consider Florida and other states that have not adopted strong statewide measures to ensure an adequate defense in death penalty cases.14 We find that such states have not experienced as much of a decline as states like Virginia and North Carolina, which have encouraged adequate defenses and have seen their death sentences drop to zero. States like Florida that continue to rely on courtappointed lawyers and that fund no statewide trial offices also continue to sentence defendants to die. Such states explain the results we found. States with shoddy lawyers for the defense represent what remains of the American death penalty. The defense-lawyering effect jibes with the structure of death penalty trials and with what we know about the importance of making a strong presentation to a jury in a capital case. Relying on locally appointed lawyers, without central standards and resources, can be a recipe for the kind of incompetent lawyering that could send even innocent people to death row. As law professor Scott Sundby has noted, it does not take a “quantum leap” in lawyering to make the difference between a life sentence and a death sentence. The lawyer just needs to persuade one or two jurors to change their vote from death to life. In short, it does not take a “dream team” to turn the tide. It just takes a team, working out of a state-supported office, which saves money by using nonlawyers like social workers and mitigation investigators. These national data are borne out by what I have observed reading recent capital trials carefully in particular death penalty states: solid offices with death penalty lawyers can make a remarkable difference.
The New York Capital Defender Office
“Justice will now be served,” said New York governor George Pataki as he signed a law bringing back the death penalty in 1995. He
114
|
End of Its Rope
used a gold Cross pen and a black ballpoint pen owned by police officers who had been killed in the line of duty. Pataki campaigned by promising to bring back the death penalty, which New York had not had since 1977, and he was good on his word, calling the law “the most effective of its kind in the nation.”15 The law also created a statewide Capital Defender Office with experienced lawyers to train and select trial lawyers to handle the new death penalty cases. New York’s death penalty lasted until 2007, when it was formally abolished and all remaining death sentences were changed to life sentences. Three years earlier the New York Court of Appeals had already struck down the death penalty statute, making it a dead letter. While the governor deplored the failure of the legislature to pass a new death penalty statute, many legislators expressed concerns about DNA exonerations, and polls suggested that voters supported life without parole as an alternative.16 What can we learn by studying the nine years that New York brought back the death penalty? During that time the Capital Defender Office handled almost 900 cases in which prosecutors considered seeking the death penalty. Prosecutors formally sought the death penalty in fifty-eight cases. No defendants were ever executed, and about half pleaded guilty and received life sentences or less. Only nineteen capital cases went to trial. Two pleaded guilty after being found guilty and received life sentences; one was not convicted of first-degree murder and another proceeded as a nondeath penalty case. Of the fifteen cases left, seven received life without parole. The other seven were sentenced to death. That is already a high success rate for the defendants, and on appeal five of the seven sentences were reversed by the New York Court of Appeals.17 The Capital Defender Office initially had over seventy staffers and an annual budget of $14 million. By contrast, the state spent, according to a conservative estimate, $170 million administering the death penalty during those nine years.18
76
|
End of Its Rope
taking their place, but prisons lack adequate ability to diagnose or treat mental conditions. If we cannot even take care to avoid executing the disabled and the psychotic, how well do we treat prisoners facing lesser sentences? Death penalty cases like the Aurora trial provide a clarion call for decriminalizing mental illness. Most criminal defendants do not receive the careful mental health screenings now routine in well-handled death penalty cases. Death penalty cases show what a difference it makes if the defense can get quality experts who can comprehensively examine the mental health of a criminal defendant. All criminal cases require early intervention to do mental health screenings. Teams of lawyers and experts are not required to treat mental health effectively. Simple mental health screenings by police, like those conducted in Miami, might prevent, for example, unnecessary use of force against mentally ill people, or false confessions by youngsters like McCollum and Brown. To be sure, there is a real national shortage of mental health professionals.76 It takes more doctors to evaluate a person if there is a “battle of the experts,” like in a death penalty case, with experts on both sides. Another way to save resources is to supplement mental health screenings with mental health courts, like in Miami. These courts are designed not to punish but to provide an alternative to jail time if people keep up with their treatment. Many criminal judges see the same people repeatedly being arrested and punished rather than getting the medical treatment they need. Mental health courts can help to end that revolving door. It is important to be sure that such programs are not coercive and truly provide care to the mentally ill, but judges are learning how to run them effectively and fairly. The approach has been used for addicts as well, in drug courts that emphasize treatment over punishment. Alternative courts have spread rapidly. Programs for juveniles and minor drug
116
|
End of Its Rope
10 9 8 7 6 5 4 3 2 1
99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16
19
19
98
0
Death Sentences
Life Sentences
Figure 5.3 Outcomes in capital trials in Virginia, 1998–2016. Sources: Virginia Capital Case Clearinghouse, www.vc3.org/; data collected by author.
Despite those procedures, however, the death penalty has sharply declined. In early 2017, there were just five individuals remaining on death row in Virginia, compared to a high in the 1990s of over fifty.20 Figure 5.3 shows how the number of capital trials (at which there was a capital sentencing hearing) has sharply declined in the past ten years. And the proportion of cases involving life sentences has grown. Why is the Virginia death penalty disappearing? In the 1990s, there were as many as thirteen executions in a single year, and Virginia and Texas together led the country in executions.21 Over the past decade the murder rate in Virginia has declined, but only
The Defense-Lawyering Effect
|
117
gradually.22 There are fewer death penalty trials, though, and still more striking is how often prosecutors fail to get the death penalty when they try. More jurors and judges choose life sentences over death sentences. To better understand what has happened, I read a collection of the death penalty trials. I obtained the transcripts of each of the twenty Virginia cases from 2005 to 2015 in which defendants faced the death penalty at sentencing. I also read a collection of older trials.23
The Fastest- Executing State
Long known as the state that carries out executions the fastest, Virginia is a “trial by ambush” state, in which the defense receives very little information about what evidence the prosecutors plan to use at a trial. Virginia death penalty law is also very broad. The death penalty is possible for fifteen different types of offenses, including killing in the commission of abduction, the killing of more than one person, the killing of a law enforcement officer, and a killing for hire.24 Once a defendant has been convicted of capital murder, during the sentencing phase an aggravating factor must be found. In Virginia, there are just two: the vileness of the murder and whether the individual poses a threat of future dangerousness.25 Both are potentially quite vague. The nonexclusive list of mitigating factors that may be considered is longer and includes prior history, age, and mental impairments.26 The jury must then weigh all the evidence together.27 In 1995, Virginia legislators adopted life without parole (LWOP). This legislation might have been expected to drive down death sentences in the state, but it did not—at least not for long. The lawmakers did not design the law to change the death penalty but to broadly abolish parole for all Class One felons.28 Death sentences dropped in 1995, when LWOP took effect.29 One juror, in
|
118
End of Its Rope
choosing life in 1996, commented, “I’m not sure what we would have done if we knew he could get out. I’m glad we had the choice we did.”30 However, the drop was temporary. Death sentences quickly rebounded and reached record levels. Virginia is the fastest and most “efficient” of all death penalty states, deciding appeals in a median time of less than one year after trial.31 The Virginia Supreme Court gives death penalty appeals first priority on its docket.32 Virginia death row inmates spend the fewest years on death row prior to their execution, with an average of just seven years, as compared with a national average of twice that amount.33 The federal courts were also famous for almost never granting relief to Virginia death row inmates. None of the rules on the books changed during the past two de cades. The death penalty in Virginia rose to new heights. Then somehow the bottom dropped out and the Virginia death penalty almost entirely disappeared.
Death Penalty Lawyers in Virginia
If you were a lawyer in Virginia, taking a death penalty case for an indigent person was a losing proposition. Under state law, court-appointed lawyers could only be paid minimal amounts to represent poor defendants in death penalty cases. For some time, the maximum fee was capped at $650, and the effective hourly rate paid to lawyers was just thirteen dollars per hour.34 If a county or a judge wanted to give the lawyer more because of the hours spent in the case, they were forbidden from doing so. Consequently, given that low fee, lawyers had no incentive to do more than work for a few hours on a death penalty case, and it showed. Over time the amount was increased, and by 2000 the average fee was $29,500, which is still astonishingly low given how an entire team is needed to adequately work on a death penalty case.35
The Defense-Lawyering Effect
|
119
Today, the situation has improved, and there is not a firm cap on fees in Virginia. Death penalty lawyers appointed by the court are paid “an amount deemed reasonable by the court,” and up to $200 per hour in court and $150 per hour out of court.36 For decades, notorious cases brought by Virginia death row inmates who had ineffective lawyers reached the appellate courts and even the U.S. Supreme Court.37 Until very recently, these defendants were executed no matter how badly their lawyers handled their cases, with just a few exceptions. Take the case of Terry Williams, convicted of murdering a man in Danville, Virginia. At a very brief sentencing hearing, the prosecutors presented evidence that Williams had committed a string of prior offenses (burglary, robbery, assaults, and arson). A forensic psychiatrist said Williams was not mentally ill, but was at a “borderline level of intellectual functioning.”38 The prosecutors concluded there was strong evidence that Williams had a violent past and would continue to act violently in the future: “He wishes to live. So did his victims. So did his victims. . . . He killed a man; he murdered a man [for] three dollars, as he said, three dollars.” The prosecutor concluded, “What kind of viciousness is it that would take a man’s life for three dollars? It shows you how dangerous this man is.”39 How did the defense respond? The lawyer called Williams’s mother, who testified he was a “nice boy at home,” who “minded me and everything at home,” although “when he was seven or eight years old he just fell off on top of his head.”40 The lawyer also called a minister and friend, who testified that Williams was not a violent person. In closing, the defense lawyer told the jury in a rambling statement:
I will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself. I doubt very seriously that he thought much about
120
|
End of Its Rope
mercy when he was in [the victim’s] bedroom that night with him. . . . Admittedly it is very difficult to get up and ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would.41
After deliberating for just an hour, the jury convicted Williams. Over a decade later the Williams trial would come before the U.S. Supreme Court and change capital trial litigation forever. Only after the appeals ended did new lawyers uncover Williams’s horrific past. His mother, who said he was a “nice boy,” was the last person who should have been relied upon to describe his upbringing. Juvenile records depicted a house where Williams’s parents were sitting on the front porch in a “drunken state,” with their children having “all been drinking bootleg whiskey” themselves, ill-clothed or naked. The report went on: “Several places on the floor where someone had had a bowel movement,” urine in the bedrooms, and difficulty stepping anywhere in the kitchen due to the extent of the trash. The parents were jailed for neglect and the children placed in a foster home before being returned to their parents after a few years. Records described “awful” beating and abuse inflicted on Williams, who was tied to a bedpost, beaten with a belt while naked, and left “in the corner shaking, crying.” Williams was borderline intellectually disabled and had suffered traumatic brain injuries as a child. None of this was presented by the defense at his trial.42 Many people have heard of Gideon v. Wainright, the landmark 1963 case in which the U.S. Supreme Court said that all criminal defendants facing a felony have a Sixth Amendment right to have a lawyer appointed, even if they are too poor to pay for one. However, the ruling did not mean that the lawyer had to be any good. Years later, in 1984, in Strickland v. Washington, the Supreme Court held for the first time that the defense has more than just a
The Defense-Lawyering Effect
|
121
right to counsel, but also the right to a minimally effective lawyer. However, despite the failures of the lawyer in Strickland’s case, a death penalty case, the Court highlighted how “scrutiny of counsel’s performance must be highly deferential,” and even if a lawyer acted unreasonably, any “deficiencies in counsel’s performance must be prejudicial to the defense.”43 For decades, the Court refused to reverse a single death sentence on the ground of poor lawyering, and poor lawyering there was in abundance. No wonder the death penalty continued to climb each year through the 1990s. In Terry Williams’s case, for the first time the Supreme Court said enough was enough and reversed a death sentence based on finding the trial lawyer’s work to have been ineffective and prejudicial. This was all the more remarkable because the case came to the court in 1999, and as a result it was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposed tough new restrictions on federal habeas review. The Supreme Court, in an opinion authored by Justice John Paul Stevens, explained that the defense lawyer had failed to use “available evidence that Williams was ‘borderline mentally retarded,’ ” had failed to obtain prison records recording “Williams’ commendations for helping to crack a prison drug ring and for returning a guard’s missing wallet,” had failed to call prison officials “who described Williams as among the inmates ‘least likely to act in a violent, dangerous or provocative way,’ ” and had failed even to return the phone call of an accountant who visited Williams as part of a prison ministry program. These rec ords were “voluminous,” and no “tactical decision” could justify not introducing them. The court declared that by virtue of the “unprofessional ser vice” of counsel, Williams’s Sixth Amendment rights had been violated. Over the dissent of Chief Justice William Rehnquist, his conviction was reversed.
122
|
End of Its Rope
Creating Statewide Defense Offices
Even after the apparent breakthrough in the Terry Williams case, little changed in Virginia, but then beginning in 2005 the number of capital sentences began to drop. What had changed at that point? In 2002, the Virginia lawmakers authorized creation of four Regional Capital Defender offices, which began taking cases in 2004.44 The lawmakers had thought, correctly, that centering capital defense in offices would save money. They were also concerned about reports regarding shoddy and uneven defense work in death penalty cases. The Virginia Crime Commission found, for example, that public defenders tended to obtain shorter sentences for their clients than court-appointed lawyers. The Crime Commission said, “There’s some cost savings, but really it’s an expertise issue. It’s such a complex area.”45 In 2004, new legislation also required the adoption of indigent defense standards for capital defense lawyers, including certification by the Indigent Defense Commission.46 Legislators were reacting in part to a report prepared for the American Bar Association, which after nine months of intensive study called the system of indigent defense “deeply flawed,” with “substandard practice” “the norm,” and with pay for court-appointed lawyers in Virginia “the lowest in the nation.”47 The four Regional Capital Defender (RCD) offices have attorneys that work on death penalty cases full time and staff specially qualified to represent capital defendants at trial. The offices have resources to investigate death penalty cases, including a focus on mitigation evidence. By all accounts, this has “significantly improved the quality of representation available to Virginia’s indigent defendants in death penalty cases.”48 At least one lawyer from an RCD is normally appointed when the death penalty is charged, but depending on when a capital charge is made, this
|
The Defense-Lawyering Effect
123
may occur well after an arrest.49 Virginia also expanded access to expert evidence in death penalty cases and, in 2015, tightened the standards for qualifying lawyers to defend death penalty cases.50
Life Sentencing in Virginia
The judge seemed genuinely conflicted in the death penalty case of Cary Shane Padgett, stating, “It’s an awesome power . . . depriving a man of his life and liberty. It’s a big deal.” Shifting in his seat, he added, “I can’t undo what’s been done.” The defense lawyer argued, “Look at the arc of the life that Mr. Padgett has led.” “We know he had an issue at a very young age.” “A person who is so damaged that they don’t understand remorse, that doesn’t understand emotion—I would suggest that diminishes moral culpability.” After a moment of silence, he added, “Can it give rise to mercy?” To which he added, “I ask only for the modicum of mercy of a life sentence.” The prosecutor responded, “What mercy did he show? . . . He showed no mercy at all.” Ultimately, the judge decided to grant a life sentence.51 Such arguments at the sentencing phase highlight the difference between skilled death penalty lawyers and less experienced lawyers. I examined every death penalty trial in Virginia between 2005 and 2015, and in eleven of those twenty-one cases, the judge or jury chose life without parole. In about half of the trials, the regional capital defenders handled the cases. From 1996 to 2004, the trials that I examined had very short sentencing trials, averaging less than two days long and with most of the witnesses put on by the prosecutors. In sharp contrast, the sentencing phase at recent Virginia capital trials was usually longer than any guilt phase, averaging more than four days long. The prosecutors were
|
124
End of Its Rope
eclipsed, too, since, on average, the defense called more witnesses than the prosecution. “He’ll die in jail, that’s the bottom line,” said Joshua Andrews’s defense attorney. “We’re going to ask you for mercy. . . . We’re going to ask you to have him spend the rest of his life in a 6-by-8 cell.” The prosecutor responded, “He’s more dangerous, more violent, more cold and calculated than he has ever been in his life.”52 Indeed, the prosecutor declared to the jurors, “You are in all likelihood now looking at the single most dangerous person you ever have or ever will encounter in your life.”53 Yet the regional defender’s office presented evidence through multiple experts (mostly psychiatrists) that Andrews had experienced a “perfect storm.” He had been badly burned as a child, had a mentally ill mother, and as a child had developed ADHD, PTSD, and Tourette’s, among other mental illness problems.54 The jury sentenced him to death, but on appeal his lawyers won a new trial by showing how the trial judge had refused to allow the lawyers to present to the jury some of the most powerful mitigation evidence. Ultimately, Andrews pleaded guilty to receive life without parole.55 Still more cases never reached a trial in Virginia. In a 2014 case in Virginia Beach, the defendant entered a plea to reduced charges after lawyers from the regional capital defender listened to tapes of thousands of hours of jail phone calls. It turned out that jail house informants were making detailed (and recorded) plans with relatives to obtain public information about the murder so they could fabricate evidence against the defendant; they talked about how “the cooperation thing” is “the key to . . . freedom,” and how prosecutors and police “just want convictions.”56 The regional jail was proven to be a “snitch factory.”57 This is precisely the sort of work only an adequately funded defense team can undertake. Had the lawyers not spent countless hours poring over those phone records, undermining the credibility of the jailhouse informants,
The Defense-Lawyering Effect
|
125
the case might have gone to trial and resulted in a death sentence. This, in a single example, is the defense-lawyering effect.
North Carolina
The North Carolina that “America’s Deadliest Prosecutor” knew is no more. In the 1980s and 1990s, North Carolina was one of the leading death penalty states; today it looks much like neighboring Virginia. Starting in around 2000, death sentences began a precipitous decline. Life was always imposed more than death at capital trials in North Carolina, but both sharply declined, as Figure 5.4 shows, and now there are only a handful of death sentences each year. In 2015 there were four capital trials but no death sentences; in 2016 there was just one death sentence. What changed in North Carolina? The changes in North Carolina look much like the changes that occurred in Virginia at the same time. In 2001, similar to
40 35 30 25 20 15 10 5
20
00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16
0
Life Sentences
Death Sentences
Figure 5.4 Capital trials in North Carolina, 2000–2015. Source: North Carolina Center for Death Penalty Litigation and Office of Capital Defender.
|
126
End of Its Rope
what happened in Virginia in the following year, a statewide North Carolina Office of the Capital Defender was created. Rather than creating regional offices that actually handled death penalty trials, the North Carolina law established a qualification process and an approved roster of death penalty lawyers. And unlike in Virginia, trial judges cannot appoint lawyers in death penalty cases; the Office of the Capital Defender decides which lawyers represent a defendant and appoints one “as soon as feasible” after capital murder is charged.58 A defendant will have an expert lawyer at the very first hearing in front of a judge. The central Office of the Capital Defender consults and assists in the investigation and in plea bargaining. If a case is going to trial they send in “cross-examination swat teams” and other experts to assist. There were other changes at about the same time. In 2002, the law was changed to give prosecutors the discretion to decline to bring a case as a death penalty case, even if it was potentially death eligible. Previously, district attorneys were required to proceed as if it was a death penalty case. Also, a new statute prohibited the death penalty prosecution or the execution of the intellectually disabled. It is possible that a de facto moratorium on executions also affected prosecutors’ choices to seek the death penalty. During this time, there were also four death row exonerations. Lawyers at the Office of the Capital Defender tell me that mock jurors began to express more concerns about wrongful convictions. The Racial Justice Act, although repealed in 2013, encouraged examination of racial disparities in death sentencing, which may have affected prosecutors’ actions. Challenges to lethalinjection protocols resulted in new statutory protocols and may also have had some effect in slowing down executions.59 Nevertheless, many other states had lethal-injection challenges and, worse, high-profile botched executions, leading to outright moratoria in executions. So while many factors played a part, the defense-
|
The Defense-Lawyering Effect
127
lawyering effect offers a compelling explanation for the North Carolina decline in death sentences.
Mitigation
How many hundreds of people have been executed because, as Stephen Bright has compellingly argued, they did not commit the worst crimes, but they were unfortunate enough to have the worst lawyers? How many tens of thousands or hundreds of thousands linger behind bars in non–death penalty cases having barely met their lawyers and having received incompetent representation? How many of those were innocent? Or were guilty but deserved a lighter sentence? For years, the American death penalty has operated by allowing subpar lawyers to do little or no work to defend their clients, particularly at the crucial stage where the question before the judge is life or death. Mitigation evidence is not “double-edged.” It should never be deemed “reasonable” for a lawyer to fail to pursue mitigation evidence, although deciding how to properly present such evidence does require real care and precision. The lawyers in Terry Williams’s case had less than two months to prepare for trial, and the second lawyer was appointed one month before trial. They could not be remotely expected to investigate a person’s complete life story, starting with school and prison and family records, all by themselves. Today, it is standard practice to give lawyers the funds to hire separate investigators to assist with that time-consuming work. A mitigation specialist is trained to investigate mental health and clinic records that lawyers may not understand. They “have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., family sexual abuse) that the defendant may have never disclosed.”60 The American Bar Association (ABA) Guidelines, updated in 2003 and again in 2008, and cited by the Supreme Court,
128
|
End of Its Rope
highlighted that from a death penalty case’s inception a defense team is urgently needed.61 There should be at least two lawyers, one lead and one associate. There should be at least one investigator. There should be at least one mitigation specialist, a person with expertise in developing mitigating evidence. And there should be at least one person with training in screening people for mental health disorders or impairments.62 Social workers have skills that lawyers usually lack. Lawyers typically do not have the skills required to assemble a careful life history or mitigation investigation. Indeed, as death penalty lawyer Russell Stetler puts it, few lawyers have had opportunities to see the “mystery” of how “empathy-evoking evidence” can transform jurors.63 Even regular criminal investigators, who often have a law enforcement background, may lack sufficient experience with social services and medical records. Furthermore, it saves money to have these nonlawyer social-work specialists doing the timeconsuming background investigation work, rather than the lawyers. As one federal judge bluntly put it, “The failure to retain such a specialist places the responsibility in the hands of counsel, who is less qualified, more costly, and has less time to gather what is needed.”64 Legislators now have a greater understanding that they have to give the defense the ability to comply with these ABA guidelines—as well as the funding to allow the defense to do its job. Put succinctly, the defense-lawyering effect occurs because teams can make the case for mercy. When the jury hears a real case for mercy, the defense can win.
It Takes a Team
In America, the wealthy can hire a Dream Team with great lawyers, while indigent defendants have bargain-basement lawyers thrust on them by the court. The difference that a team of lawyers can
84
|
End of Its Rope
than if the victim was black. The researchers controlled for hundreds of factors, including how aggravated the murder was.9 You could call this a “white lives matter more” effect—cases with white murder victims received death sentences far more often than those with black murder victims. Yet in McCleskey v. Kemp, the Supreme Court said that while this landmark study “indicates a discrepancy that appears to correlate with race,” there was no constitutional problem. These statistics did not show a pattern that was sufficiently “stark” evidence of intent to discriminate. If the Justices accepted this claim of racial bias, others might challenge “other types” of penalties, and this could throw “into serious question the principles that underlie our entire criminal justice system.”10 Justice William Brennan famously retorted in dissent that the Justices betrayed a fear of “too much justice.”11 In the years since, David Baldus and many other researchers have done study after study in nearly every death penalty state, all reaching the same troubling findings: the race of the victim defines who gets sentenced to death. The U.S. Senate asked the General Accounting Office to review the literature; they found race effects in 80 percent of the studies. In a more recent review, over 90 percent of cases had effects based on the race of the victim, and an American Bar Association assessment of death sentences in major death penalty states found racial disparities in every case.12 North Carolina passed the Racial Justice Act in 2006 to study the role of race in death sentencing. After researchers began to analyze the data and found race a “significant factor” in death sentences, legislators followed the same “see no evil” approach of the Supreme Court: in 2013 they repealed the act.13 A disturbing remedy for the problem identified by these studies could be to charge more black defendants with the death penalty. Homicide rates are much higher for young black men than for any
|
130
End of Its Rope
unsure of whether they would get paid, quit. In a 2007 case, a judge removed capital defenders from a case when they said they were not prepared for lack of funding. In a 2010 case, the lawyers asked the judge to bar the state from seeking the death penalty because the office could not pay their lawyers, expert witnesses, or investigators. In a 2012 death penalty case, a judge called the statewide office “systemically broken.” Only a handful of public defender offices in the entire country use a team-based approach for cases other than death penalty cases. Those offices include the Bronx Defender and Public Defender Services in Washington, D.C., which have investigators on staff. Even for those offices, it is not possible to do a full-scale team defense in every case; they have to prioritize. And those offices are the exceptional ones that have been able to attract nonprofit funding and top lawyers. Slowly, more public defenders may be catching on and finding funding to use these investigative techniques. A truth is slowly taking hold: it should not just be the wealthiest, the most privileged, or the most articulate or sympathetic defendants who obtain mercy. Until the team approach catches on, what does the experience of death row defendants suggest about the vast bulk of criminal cases of all types? There is a nickname for the phenomenon: Meet ’em and plead ’em. In the United States, lawyers negotiate over 95 percent of criminal cases using plea bargains, and some barely meet their clients. In misdemeanor cases there is no right to a lawyer, and none are provided in many jurisdictions. Many public defenders are so underfunded and overwhelmed they simply cannot meet with clients, they have waiting lists, or judges allow prosecutors to negotiate plea deals with people who have not yet met a lawyer. The defense-lawyering effect is real and it is substantial. Teams adequately skilled and funded with investigators and social
The Defense-Lawyering Effect
|
131
workers, and not just lawyers, can harness that effect. This insight has profound implications for reform of the criminal justice system. More legislatures have considered diverting mentally ill people for treatment, releasing low-risk offenders, relaxing sentencing guidelines, and generally allowing more individual considerations to play a role in criminal cases. These developments make it all the more important to give the defense adequate resources, including investigators and social workers.68 Just changing laws cannot undo decades of mass incarceration. Individual people must be given a chance to tell their story—and to do that it takes a team.
6 MURDER INSURANCE
Crane County is in a rural oil-producing part of West Texas. It has just 4,000 residents, almost all of whom live in the county seat, Crane City, where the only post office and courthouse are located. “I’ve always thought Crane was a safe place to live, but we just didn’t know what was happening last night,” said a resident of Crane City in July 2008. In what goes for Crane’s downtown, a man named Gillie Thomas Thurby, Jr., assaulted a woman. Then the Crane police heard he had a knife to a man’s chest across town. When they found that victim, he was fatally wounded. After a search, the police came across Thurby in his red Dodge Intrepid. Thurby rammed into the police cruiser, crossed a highway median, and began a high-speed police chase through neighboring Upton County and then into Pecos County. Thurby abandoned his car in a pasture and took off on foot. The police tracked him down and finally arrested him in a warehouse attic in the small town of Iraan, Texas.1 “This guy wasn’t even a local guy,” said Crane County Judge John Farmer. “He just shows up here.” There had not been a Crane County capital murder case in anyone’s recent memory. Now the small county would have to shoulder a costly trial. “That’s a million dollars we don’t have,” said the judge. Fortunately for Crane County taxpayers, however, they would not have to borrow that
|
The Great American Death Penalty Decline
87
12 10 8 6 4 2 0 1980
1985
1990
1995
2000
2005
2010
2015
Figure 4.3 U.S. homicide rate per 100,000 people, 1980–2015. Source: Bureau of Justice Statistics, U.S. Dept. of Justice.
in 2006–2007. There was a spike again in 2015, with more murders in some large cities but not others. However, the long-term trend is consistent. Murders declined from almost 25,000 in 1991 to 16,000 in 2004 and under 13,000 by 2010.19 Crime in general is continuing to steadily fall. The steepest decline in murders occurred in the mid- to late 1990s. What is notable, and sobering, is the fact that no one predicted that murders or crime more broadly would decline in the 1990s. Instead, experts thought that even more crime was on the way. New laws were passed to target the coming waves of “superpredators” who did not materialize. So why is crime declining? Scholars have suggested many theories, including the increased imprisonment rate and the greater numbers of police officers on the streets by the late 1990s. Relatedly, some have argued that adoption of harsher sentences, such as three-strikes laws, might account for more imprisonment but
|
134
End of Its Rope
1975 and recalls how his first capital trial put him “in over my head.” The client was a man named Clarence Lackey. In that case, mental health was a major issue. The trial judge had refused to award funds for outside experts to evaluate Lackey and instead sent him to Big Spring State Hospital. The judge allowed only $500 for investigation and expert testimony. When Stoffregen asked for more funding for “various experts in the fields of medicine, psychiatry, and psychology,” the judge denied his request for $1,000. Stoffregen managed to hire a psychologist who would have testified that Lackey had organic brain damage. The judge refused to allow the expert to testify. Lackey was sentenced to death, but his case was reversed on appeal because the judge refused to allow the expert. Stoffregen recalled, “[T]he judge rewarded me by assigning me to retry the case.” Lackey was resentenced to death in 1983 and executed in 1997. The case still comes up today, because in 1995 the U.S. Supreme Court for the first time considered—and refused to hear—what lawyers now call “Lackey claims,” or the argument that excessive delays in carrying out an execution can itself be cruel and unusual punishment.5 Stoffregen’s experiences caused him to rethink how death penalty cases were handled in rural Texas—largely by court-appointed lawyers on a case-by-case basis. In 2007, Stoffregen started a new office dedicated to handling the defense in death penalty cases based on the concept of “murder insurance.” The operation is “kind of like a risk pool,” Stoffregen explains. Lubbock’s court administrator knew that the average death penalty case cost $50,000 if pled out, while a full-fledged trial cost from $100,000 to $500,000. Added to that were costs of appeals and postconviction proceedings. Lubbock, with a few neighboring counties, decided to fund an insurance scheme. A regional office, staffed with a few capital defense lawyers, was funded by counties paying annual “premiums” based on population and average capital murder fil-
Murder Insurance
|
135
ings. The formula worked like this: half of the annual “murder insurance” premium would be based on each county’s percentage of population, and the other half would be an estimate of the operating cost based on how many capital cases each county had filed over the past few years. To cover twenty-six capital cases a year in West Texas, it would cost about $1 million a year. The state stepped in to help. The Texas Indigent Defense Commission said it would pay 100 percent of the costs for the first year. Each year the state would pay 20 percent less, so that by year five the counties would pay for the entire office. The new West Texas Regional Public Defender for Capital Cases began taking cases in 2008. The office adopted a different way of doing death penalty litigation: a team approach. Lawyers, investigators, and experts would work together. Before they created the regional office, a judge assigned a local lawyer to a case, who then began looking for a second lawyer to help, after which they would call around to try to find an investigator and experts. Now the team is already in place, so they can start work in a matter of days rather than months. In the regional office, there is no pecking order, “no difference between an attorney and one of our legal assistants,” Stoffregen explains, and they share an office, so they can meet to collaborate. Using more nonlawyers is also far more economical. They investigate mitigation at the same time as the guilt phase. A PhD nonfiction writer works with investigators and mitigation specialists to help document defendants’ stories in a compelling way. A volunteer from the Texas Tech Theater Department videotapes the lawyer’s work and helps them apply concepts from communications research. As of this writing in 2017, only five of the office’s cases had gone to trial. Other counties clamored to join. “We simply thought it was the prudent thing to do,” Deaf Smith County Judge Tom Simons said about the decision to join. The cost savings were irresistible. No one had to send murder insurance salesmen around rural Texas.
|
136
End of Its Rope
Word spread around the state, and the office started fielding calls from more and more counties seeking to participate. The Texas Indigent Defense Commission helped the office to expand southwest, then southeast, and then northeast. The office soon doubled to include twice as many counties, reaching 158 of Texas’s 240 counties. By 2010, all counties with a population of less than 300,000 were eligible to join, while the fourteen largest counties in Texas were not.6 “This is exceptional and represents an unparalleled level of cooperation among local governments,” said the executive director of the Task Force on Indigent Defense. Today, the still-growing office, now called the Texas Regional Public Defender for Capital Cases Office (RPDO), has eight satellite offices around the state.7 Though some Texas judges still “refuse to appoint us,” since some “judges want lawyers they know,” the reasons to use the office are compelling. The average annual cost of membership for Texas counties with a population below 50,000 is just $5,124 per year. A single capital case would cost $73,571 on average. And a capital trial costs an estimate $280,734 on average. By comparison, average costs billed by private lawyers in capital cases in Texas range from $1.2 to $2.3 million, according to one estimate.8 Of course, these are just the defense costs. Prosecutors and the courts themselves also face enormous costs if death penalty cases go to trial. The office has an excellent track record. Only one in twenty-six of the office’s cases through mid-2013 resulted in a death sentence.9 In general in Texas, defense lawyers do not usually win at trial. A 2012 study of Texas death penalty cases found that 99 percent of capital trials result in a conviction, and 80 percent result in a death sentence.10 Stoffregen’s office succeeds by keeping most of its cases out of court. Almost three-quarters of the office’s cases were pled, compared to “just 21 percent” of cases that the office does not handle. That means courts and prosecutors save costs.
The Great American Death Penalty Decline
|
89
perienced remarkable declines in death sentencing over the last fifteen years. In Texas, murders fell dramatically in the 1990s, accompanied by a steep decline in death sentences. By contrast, in states like North Carolina, the numbers of murders have remained fairly stable since the 1990s, but North Carolina has also experienced a steep decline in death sentences. Any relationship between murders and death sentences at the state level is highly inconsistent. At the county level, however, as I describe in more detail in Chapter 6, there is a connection between murder rates and death sentences. It is even stronger if one looks at the delayed effect of murder rates on death sentences. However, I will explore how other factors also powerfully explain the differences in countylevel death sentencing. Still more troubling, the effect of murder rates on death sentences is most pronounced in a manner that is racially biased: it is the counties with more white victims of hom icide that impose more death sentences. Since about 2008 there have been so few death sentences that it is harder to observe any connection between murder rates and death sentences. There is a growing disconnect between the two. The death penalty decline may now have a life of its own, separate and apart from the decline in murders. What is driving it?
Public Opinion
One explanation could be that the general crime decline and the decline in murders catalyzed a broader change in public opinion. The crime and murder drop could have pushed people past a tipping point; as people became less fearful about crime, they became less inclined to seek harsh punishments for offenders. Prosecutors, jurors, judges, and the public may all feel less punitive when an atmosphere of anxiety about crime starts to clear. Perhaps after several years of crime decline, by the end of the 1990s,
138
|
End of Its Rope
cases.11 Even in the largest counties in Texas, the ones that cannot take part in the murder insurance scheme, the numbers of death sentences have sharply dropped. And this is true across the country: the death penalty is increasingly concentrated in a small group of counties, mostly larger and wealthier ones that can afford to seek the death penalty. Even in those stalwart counties, the death penalty is on the decline. This chapter explains why.
The Splintering of the Death Penalty
In the 1990s, several hundred people were sentenced to death each year in the United States. In 2015, there were just fifty-one new death sentences, and in 2016 there were just thirty-one. The rapid drop in death sentences is even more stunning at the local level. Even within the biggest death penalty states, death sentences mostly come from a shrinking group of individual counties. As Figure 6.1 illustrates, death sentences come from a shrinking group of individual counties, for example, Riverside County, Cal-
Figure 6.1 Word cloud of death sentences by county, 1996–2015. Source: Data collected by author.
|
Murder Insurance
139
ifornia, and Duval County, Florida. Only sixteen counties sentenced an average of one person to death each year from 2010 to 2015. Even the counties like Harris County, Texas, that used to lead the country in death sentences have experienced drops—in fact, it is in those counties that the decline has been the steepest. With counties such as Harris County—deemed by one judge to be “the buckle” in Texas’s “death belt”—slowing down their machinery of death, California counties such as Los Angeles, Riverside, and Orange assumed greater prominence.12 In 2015, more than one-quarter of the death sentences imposed in the country came from California. Yet the State of California has not carried out an execution in a decade, and it is unlikely to do so in the near future. There are over 3,000 counties in the United States. Some states, for example, Texas, have many counties (254), while others, like Delaware (three), have just a few. And some states, like Virginia, include cities that are incorporated separately from surrounding counties. Each of those counties or other local jurisdictions has local criminal courts, where, day in and day out, prosecutors and defense lawyers negotiate and litigate criminal cases, and judges and juries convict defendants. Out of those 3,000-plus counties, very few were ever death penalty–seeking jurisdictions. Today, what remains of the American death penalty is concentrated in just a few dozen scattered counties that are typically larger, wealthier, and politically conservative. Over the last twenty years, the pace of change has been remarkable. In the past twenty years, almost 800 counties imposed death sentences. Just in the five years from 1996 to 2000, 536 different counties imposed death sentences. That dropped to 367 counties from 2001 to 2005, to 304 from 2006 to 2010, and just 203 counties from 2011 to 2015. In 2015, only thirty-eight counties sentenced people to death, and only nine counties sentenced more
140
|
End of Its Rope
200
150
100
50
0 1995
2000
2005
2010
2015
Figure 6.2 Number of counties with death sentences, 1991–2016. Source: Data collected by author.
than one person to death. In 2016, only twenty-seven counties sentenced people to death, and just one county, Los Angeles County, sentenced more than one person to death. Figure 6.2 visually captures this dramatic decline. The picture looked completely different in the 1970s, 1980s, and early 1990s, when the death penalty was on the rise. Over 5,000 death sentences were handed down from 1973 through 1995. Professors James Liebman, Valerie West, Jeffrey Fagan, and a team of their colleagues examined that time period in detail in landmark studies.13 They found that the vast bulk of counties did not sentence anyone to death, but death-sentencing counties were far more widely dispersed, so that even rural counties regularly imposed death sentences. In the two decades since the end of the time period that they studied, not only have fewer counties imposed death sentences, but death sentencing has been increasingly concentrated in a shrinking group of counties. Having handcollected twenty-five years of death-sentencing data and informa-
|
Murder Insurance
141
tion about which counties sentenced which people to death, I sought to study what explains this changing geography of the death penalty, and Alexander Jakubow and I analyzed the patterns statistically. First, we saw that rural counties have almost entirely dropped out of death sentencing. We found that population density was strongly associated with death sentencing across a series of statistical models. The increased cost of the death penalty, particularly in an era when the person facing the death penalty increasingly has an adequate defense, may explain why small counties have stopped engaging in the practice. Second, murder rates play a role in death sentencing. We studied just the counties in states that have (or at the time had) the death penalty. Using a range of different models, and examining detailed data on murder rates from the Centers for Disease Control and Prevention (CDC) and the Federal Bureau of Investigation (FBI), we found a statistical connection between county-level murder rates and death sentencing. The decline in murders may have impacted death sentencing at the county level. Third, counties with large black populations engage in far more death sentencing. Many studies have found that death sentences in the modern era have disproportionately occurred in cases in which the victim is white. We found that an increase in rates of homicides with black victims are not significantly associated with an increase in death sentencing, while rates of homicides with white victims are significantly associated with death sentencing. Thus, counties do not simply respond rationally to murder rates. Instead, patterns of racial bias affect how they respond to murders. Fourth, we found that entrenched practices or inertia, measured by the prior number or average numbers of death sentences in a county, strongly explains which counties still seek death sentences.
142
|
End of Its Rope
The “muscle memory” of counties powerfully affects death sentencing. In summary, we found: (1) heightened geographic concentration of death sentences in densely populated counties; (2) death sentencing based in part on murder rates; but also (3) capital sentencing that reflected racially biased demographics and victimization; and (4) path-dependent practices in death-sentencing counties. These four central findings do not paint a pretty statistical portrait of death sentencing today. Population Density
The death penalty map has completely changed, and today death sentences continue to be levied in only a few outlier counties. Not only have death sentences sharply declined at the state level, but even within the biggest death penalty states, fewer and fewer counties still impose death sentences. We found a consistent and strong statistical correlation between population density and death sentencing during the time period from 1990 to 2015. The average population of death-sentencing counties in the 1990s was about 470,000 people, while by 2004–2014, it averaged about 800,000 people. The population density of deathsentencing counties averaged 650 people per square mile in the 1990s, while by 2004–2014 it averaged over 800. The average population, based on 2010 census figures, of the counties imposing death sentences in 2015 was over one million people. Figure 6.3 illustrates this trend. Take Virginia, a state where in the 1980s and 1990s, dozens of small counties regularly imposed death sentences. These included places that few people will have heard of who have not spent time in rural Virginia: Accomack County, the City of Appomattox, Chesterfield County, Culpeper County, and Pittsylvania County. In the decade from 2005 to 2016, only seven counties imposed
94
|
End of Its Rope
happened in other countries, like Canada: crime went up in the late 1960s and continued to go up, but then fell rapidly in the 1990s. Yet in Canada the death penalty was abolished in the 1960s. As scholars like Frank Zimring and John Donohue have pointed out, the aggressive use of the American death penalty cannot explain why Canada had a very similar drop in crime. Indeed, Canada imprisoned fewer people and hired fewer police in the 1990s while still experiencing the drop in crime. The problem goes still deeper. The dramatic decline in murders came a decade before death sentences suddenly dropped. In other words, the cart came before the horse. Consider also that most murders are not eligible for the death penalty. Only the “worst of the worst” can be sentenced to death. States define who is death eligible in different ways, and in some states the definitions are so broad that most murderers could potentially be charged with the death penalty. One study found that over 90 percent of Colorado murderers could be death eligible.36 The famous study led by David Baldus of Georgia death sentences found that 86 percent were death eligible.37 Professors Jeffrey Fagan, Franklin Zimring, and Amanda Geller studied the “market share” of the death penalty and found that about 25 percent of killings in the United States were death penalty eligible. But they found that the drop in murders was concentrated in the types of murders that were not death eligible.38 They also found that legal trends, most importantly a state’s decision to end the death penalty, did not affect the rate of death-eligible killings. So, for example, the abolition of the death penalty in New York had no effect on the rates of deatheligible killings committed there. Conversely, nor did the rise in executions in Texas, particularly in the late 1990s, when Texas was executing almost three people per month. “Invisible,” the authors call any deterrence effect of the death penalty. This calls into question not only the controversial death
The Great American Death Penalty Decline
|
95
penalty deterrence studies but also the murder-rate explanation for the decline in death sentences. Fewer and fewer murders mean fewer and fewer murders eligible for the death penalty. Yet deatheligible murders may be declining somewhat more slowly than murders in general. Meanwhile, death sentences are declining much faster than murders in general. At most, professors David McCord and Talia Harmon estimate that less than half of the decline in death sentences could be accounted for by the decrease in murders.39 Statistical analysis presented in Chapter 6 confirms that the decrease in murders is an important factor, but also that something else, beyond the national decline in murders, must also explain the sudden death penalty decline. Perhaps changes in the law at the state or national level can help explain the decline in death sentences. One possibility that many lawyers and commentators mention is that the death penalty has gradually come to be replaced with sentences of life without the possibility of parole, or LWOP.
Life Means Life
“Now you have a choice. Before, you didn’t,” the Dallas County District Attorney put it.40 Life without parole is new to the United States, and offering it as an option seems like a change that must explain the drop in death sentences. Before the 1970s there were no true “life” sentences for crimes, since lawmakers adopted the view that all prisoners should be redeemable. Thus, in practice, a “life” sentence usually meant that after ten or fifteen years parole was at least a possibility. For federal prisoners, until Congress abolished parole in the 1980s, parole reviews were conducted after fifteen years. In Louisiana, a prisoner serving life would be released after about ten years in prison, with good behavior. Only seven states had LWOP before 1972.
Murder Insurance
|
145
$40,000
$30,000
$20,000
$10,000
$0 1995
2000
2005
2010
Figure 6.7 Average income of counties with death sentences, 1990–2014. Source: Data collected by author.
those people had their death sentences reversed in the courts. Three people from Robeson County remain on death row, but all were sentenced in the 1990s. One Robeson County inmate was executed in 2003, and another died of natural causes in 2004. The last person to be sentenced to death in Robeson County was sentenced in 1997. What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger, wealthier, and more densely populous counties. But even those outlier deathsentencing counties are experiencing a rapid decline. Indeed, the largest declines have been experienced in the counties that sentence the most people to death. Why is that? Murder Rates
One reason is that large counties have experienced larger declines in murder rates. Our statistical analysis supported the conventional wisdom that there should be more death sentencing in more violent areas. Examining detailed data on murder from the
146
|
End of Its Rope
10,000 9,000 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000 0 1990
1995
2000 Death Sentences
2005
2010 Homicides
Figure 6.8 Total homicides and death sentences in counties with death sentences, 1990–2014. Source: Data collected by author.
CDC and the FBI, we found a connection between death sentencing and murder rates, in addition to population density and demographics. We observed this connection within counties, but also when comparing counties within states. Since it can take some time for a case to proceed to trial and a sentence to be imposed, we lagged the data. When we did this, we observed a larger connection between murder rates and death sentencing. Declining murder rates may have helped to push death sentencing over a tipping point. The relationship between murders and death sentencing is complex, though. Figure 6.8 illustrates how much total numbers of murders fell in those counties. The steady decline in death sentences looks slight by comparison (you can barely detect the downward trend), since there are so few death sentences as compared with murders. As murder rates dropped beginning in the 1990s, death sentences also fell—but death sentences declined more steeply, from over 300
|
Murder Insurance
147
a year to just thirty-one in 2016. The strength and significance of these findings erodes in recent years, starting in 2008. The effect of murder rates may have become much less relevant in the last decade or so. Or it may also be that the numbers of death sentences are now so small that it is hard to observe the relevant connections. The next set of findings introduces even more complexities and concerns regarding the relationship between murders and death sentences. Race Discrimination
The third major factor observed in our statistical analysis of county death sentencing was a pattern of racial bias. At the state level, race discrimination in death sentences has long dominated death sentencing, as study after study has found. These troubling patterns are also pronounced at the local level.14 We found a strong correlation between the black population in a county and the number of death sentences in a county. This racial pattern holds up across a range of statistical models. In addition, while we found that murder rates matter, they also matter in a troubling way: there is a race-of-victim effect similar to that observed in many studies of death sentencing. Most murders are within-race in this country. About half of the victims of murder are white and half are black, but, for example, in 2013, only about 400 of 3,000 murders involving white victims involved black offenders.15 The counties that have more white victims of murder sentence substantially more people to death on average. In contrast, the counties that have more black victims of murder do not have more death sentences; the effect of the black homi cide rate was statistically insignificant in all the models we tested. We observed a strong white-lives-mattering-more effect where death sentencing is concerned. Particular counties stand out in their biased patterns of death sentencing as to the race of defendants. Take Riverside County,
100
|
End of Its Rope
death sentences also found that adoption of LWOP is a “relatively minor factor” in the drop in executions, which also makes sense.49 This calls into question death penalty opponents’ belief that embracing LWOP is a way to undercut the death penalty. The consequences might in fact be far more pernicious. While LWOP is not strongly associated with the decline in death sentences, the application of LWOP laws has led to tens of thousands more people being locked up for life than could ever have been sentenced to death. When Kansas approved LWOP, only a handful of legislators objected, and only one noted that LWOP takes away hope of rehabilitation: “I think the state should work towards rehabilitation,” the holdout senator explained.50 The push to broaden LWOP may have been a devil’s pact that did not greatly affect the death penalty, but it created a massive “life row” in this country, full of thousands of people who could never have been sentenced to death and who now have no hope of rehabilitation or release.
An Innocence Effect
Is there an “innocence effect”? Some, like prominent abolitionist Richard Dieter have argued that “probably the most significant cause” for the death penalty decline must be “the innocence issue,” particularly due to the emergence of DNA testing and DNA exonerations.51 That theory made a lot of sense to me. I have studied DNA exonerations for years, and these wrongful-conviction cases forever changed how I perceive the criminal justice system. Exoneration cases like those of Henry McCollum are incredibly disturbing, and they have received a great deal of public attention in the national and local media. DNA exonerations began to pick up steam by the late 1990s, right around the time that death sentences began to decline. Some states clearly abolished the death penalty because of concerns about wrongful convictions—such
Murder Insurance
|
149
2016. Its longtime prosecutor, who once declared that the parish should try to “kill more people,” left office. It is just not sustainable for a handful of outlier counties to keep an entire state (or country’s) execution machinery going. Muscle Memory
Even among the large counties that still impose death sentences, which do and which do not is largely a function of the preferences of a few gung ho prosecutors. A large body of research has documented the powerful role that the preferences and proclivities of prosecutors play in death sentencing in a wide range of death penalty states.20 When we studied inertia among counties, we found very strong connections between the numbers of death sentences in the prior year and in the years before and the likelihood that a county would sentence someone to death.21 It is quite troubling that inertia is such a powerful force that explains who gets sentenced to death. Law professor Lee Kovarsky calls this “muscle memory.” The attitudes and politics of prosecutors largely decide who lives and who dies. Prosecutors get used to seeking the death penalty, they build a team of lawyers to take death cases to trial, and they keep doing it reflexively. There are over 2,300 prosecutors in the United States, some of whom have been very aggressive in seeking the death penalty.22 It is not just the prosecutors acting alone, though, who build a death-sentencing machine. Amenable judges, inadequate defense lawyers, patterns of bias, and friendly jurors make it possible for prosecutors to keep flexing their muscles. In general, our criminal justice decision making happens at the local level. That said, most states give prosecutors enormous discretion over whether or not to file criminal charges, and they give prosecutors carte blanche authority to seek the death penalty. The record for death sentences
150
|
End of Its Rope
in a single year goes to Philadelphia County, which sentenced twenty people to death in 1983 (followed by Harris County, Texas, which sentenced seventeen people to death in 1978, fifteen people each in 1983 and 1996, and sixteen in 1994). The flip side of the inertia effect is that once counties stop seeking death sentences, they tend to keep it that way. In recent years, notoriously pro–death penalty prosecutors have retired or have been defeated in elections. “Cowboy Bob” Macy, the district attorney in Oklahoma County, secured fifty-four death sentences and twenty executions while holding office from 1980 to 2001. Along the way, judges called out Macy’s “persistent misconduct,” three people were exonerated from death row, and almost half of the capital cases were scrutinized due to flawed forensic testimony. Macy retired in 2001, and from 2010 to 2016 the county produced just three death sentences.23 The people who are still sentenced to death face aggressive, bigmuscled prosecutors but are represented by weak, resource-starved defense lawyers. Take Duval County, Florida, one of the sixteen counties that produced more than five total death sentences from 2010 to 2015. A detailed report by Harvard Law School’s Fair Punishment Project found that the sentencing phase at those trials lasted on average just one day. The defense typically put on only a few hours of mitigation evidence, a far cry from the comprehensive evidence that a good defense team presents. Public defenders are elected in that county. The public defender who held office during that time frame, until he was defeated in fall 2016, had promised to be “less confrontational” with police and promptly fired the experienced death penalty lawyers in the office. In past cases, the defense in Duval utterly failed to put on evidence of organic brain damage and disability, leading to reversed death sentences. Nine of the sixteen top death-sentencing counties had the same average defense sentence case of just one day.24 Thus, the defense-lawyering effect is
Murder Insurance
|
151
also pronounced at the county level. Perhaps it takes an outside shock, like turnover of the lead prosecutor or better defense lawyering, to break the path-dependent cycle of death sentencing.
Mercy in the Land of the Texas Terminator
For a case study in muscle memory, consider the example of Johnny B. Holmes, Jr., the “Texas Terminator.” Holmes, who led Harris County’s prosecutor’s office from 1979 to 2000, earned that moniker by leading the nation in death sentences and executions. “I say without apology that if you murder someone here, the state of Texas is going to kill you,” he said.25 In twenty years, from 1996 through 2015, Harris County, which includes the city of Houston, sentenced 112 people to death. Houston also leads the country in executions, with 125 since 1976. Houston did not have many more murders than Dallas, Texas, but it had over twice as many death sentences. Holmes easily won election four times, and he ran unopposed in 1996. He once commented, “I’m not shot in the [expletive] with compassion.”26 While budgetary concerns may afflict the hundreds of small counties in Texas, the district attorney’s office in Houston has hundreds of lawyers and the resources to bring many death penalty cases.27 Indeed, the Terminator oversaw the expansion of the office, doubling the numbers of prosecutors and increasing its budget. A prosecutor who worked under Holmes commented, “He ran the DA’s office like Patton ran the Third Army.” The Terminator campaigned by promising that he would seek the death penalty as often as he could. Another former prosecutor commented that for Holmes, the death penalty “was just a good way to get the SOBs off the street.”28 Muscle memory can fade. After the Texas Terminator’s retirement in 2001, death sentences gradually dropped. Holmes’s
The Great American Death Penalty Decline
|
103
penalty’s decline. Decades of the Supreme Court Justices’ “slow dancing with death,” as law professor James Liebman has aptly and morbidly put it, did not restrain the death penalty from reaching new heights in the 1990s. One set of legal changes occurred right at the time that death sentences were declining, providing a chance to assess whether judges’ rulings can trigger such a decline. For many years, in some states, judges could impose the death penalty. Hanging judges, you could call them. In many states judges are elected, and they would even campaign on how pro–death penalty they were. Allowing the judges to impose death sentences came to something of a halt, though, after the Supreme Court’s 2002 ruling in Ring v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating factors making the case eligible for the death penalty found by a jury and not a trial judge.53 Some states still allowed the judge to overturn the jury recommendation and impose the final sentence. Delaware allowed it but then abolished the death penalty in 2016. Alabama, however, still allows judge “overrides.” They should be declared unconstitutional, and perhaps soon they will. Could the Supreme Court’s ruling in Ring help to explain the death penalty decline? The nationwide death penalty decline began in 1999. The change to jury versus judge sentencing in 2002 did not result in any strong correlation with a decline in death sentences. Any small correlation is not a reliable one, and it chiefly comes from very small states, particularly Delaware, that had high death-sentencing rates despite the paltry numbers of murders committed there. Just about every death penalty state quickly complied with the Supreme Court’s Ring ruling—including Arizona and Nevada, which did not then experience a sharp decline in death sentences. The exception is the largest state with judge sentencing:
|
Murder Insurance
153
tion drove the death penalty for decades. Large counties like Harris County are all that is left of the death penalty, but even in the last bastions of the death penalty, the muscle memory has faded.
Overload
Consider what happens when a lone prosecutor embarks on a surge campaign to seek death sentences. The result in Maricopa County, Arizona, was a full-fledged “capital case crisis” that threatened to swamp the local courts. Maricopa County, which includes the city of Phoenix, is a major populous urban county like Harris County and Los Angeles. In the last ten years, Maricopa County rose to new prominence in the death penalty; since 2010 it has been the second-highest county nationally in death sentences. Maricopa County has imposed ninety-two death sentences in the past twenty years. The surge began in earnest under the county prosecutor from 2004 to 2010 (who unsuccessfully ran for state attorney general and then was disbarred in 2012). That prosecutor was known for aggressively pursuing the death penalty, doubling the number of times that the office sought the death penalty. The result was a crisis. A local judge complained, “We had more death-penalty cases on our plate than any jurisdiction in the nation, . . . we didn’t have enough prosecutors, judges, or qualified defense attorneys to keep things moving along at a rate that anyone could define as satisfactory.”32 Cases did not have lawyers assigned to them. There were not enough mitigation specialists to handle the cases. While some defense lawyers presented weeks-long, careful mitigation cases at trial, on average they presented only two and a half days of evidence. That’s because there were a large number of cases handled by a few lawyers who routinely took a heavy load of capital cases
154
|
End of Its Rope
and presented almost no mitigation evidence at trial.33 The courts had to create special rules to handle the out-of-control caseload. Along the way, Maricopa prosecutors were found to engage in misconduct.34 Meanwhile, from 2010 to 2015, 57 percent of defendants in death penalty cases in Maricopa were black. During this time, the Maricopa County sheriff faced Department of Justice scrutiny for “the worst pattern of racial profiling” they had seen.35 The crisis abated by 2011 as more judges were assigned to actively manage death penalty trials, and as the new county attorney reviewed all the pending death penalty cases and decided to dismiss or settle about one-fifth of them.36 In 2016, both the incumbent county attorney, who prevailed, and the challenger campaigned by saying they would seek the death penalty less often.37 The county machinery of death, once overloaded, has now slowed down.
Philadelphia
Now consider the case of Philadelphia. “When it comes to the death penalty, I am passionate. I truly believe it is manifestly correct,” said Philadelphia District Attorney Lynne Abraham, a longtime prosecutor nicknamed the “Queen of Death” and the “Deadliest DA.”38 Philadelphia imposed forty-three death sentences from 1996 through 2015, or 20 percent of the 143 death sentences across all Pennsylvania. To be sure, only three people have been executed in Pennsylvania since the 1970s, and all three were “volunteers,” or inmates who dropped their appeals to hasten their executions. Nevertheless, the City of Brotherly Love was routinely seeking and winning death penalty cases. Even as Philadelphia prosecutors aggressively sought the death penalty, the local judges defanged the defense. Pennsylvania has had no statewide system of indigent defense. The Defender Asso-
|
Murder Insurance
155
ciation of Philadelphia, a nonprofit public defender office, has staff, including investigators and social workers, that can assist with capital cases. However, judges only assign public defenders in every fifth murder case.39 The fees were traditionally low. The Court of Common Pleas judge adopted a rule in 1997 that in a death penalty case the lead lawyer would get $1,333 as a flat rate for trial preparation if the case pled out, and $2,000 if the case went to trial. At trial, the lawyer would get paid $200 for the first day and $400 a day for additional days.40 With lawyers getting paid mostly for work during a trial, the rule discouraged much in the way of preparation for trial, including the kind of serious investigation that can result in a negotiated plea once prosecutors learn about the defendant’s background and mitigation evidence. Lawyers estimated that the rate could come out to two dollars per hour given the work they had to do. Why 80 percent of the murder cases should be assigned to private lawyers is unclear, but the trend did yield a telling insight. The cases were randomly assigned, making for a perfect experiment. In a study undertaken by the RAND Corporation titled “How Much Difference Does the Lawyer Make?,” we learned the answer: public defenders working in an office were a lot better.41 Public defenders reduced the chance of a murder conviction by 19 percent, the chance of a life sentence by 62 percent, and reduced prison sentences by 24 percent. In 2012, after the RAND study came out, the rate scheme was changed to provide $10,000 for pretrial work in death penalty cases. There were no death sentences in Philadelphia from 2013 through 2015, and just one in 2016.
The Cost In the past, many believed that imposing the death penalty would cost less than the cost of imprisoning a person for life.42 It was
5 THE DEFENSE- LAWYERING EFFECT
The courtroom clerk dropped a book and “made a sharp noise.” This startled the defense lawyer. According to the juror, who was ten or so feet away, the lawyer “kind of like jarred up and turned his head.” The lawyer’s eyes were red. He wiped them and looked startled. The juror recalled, “I thought he was asleep. I couldn’t believe it, you know.”1 This did not happen just once. The lawyer would repeatedly “nod off or . . . catch himself dozing,” sometimes for several minutes, recalled the jury foreperson. Another juror said that the defense lawyer fell asleep five to ten times. The judge’s head clerk remembered how the lawyer “would drift off. . . . He was asleep.” By the middle of the trial, the lawyer grew even more tired. The lawyer “was asleep for long periods of time during the questioning of witnesses.” The clerk recalled, “I had seen him before. I knew that he had this problem.” In this notorious death penalty trial in Houston, Texas, in 1984, the lawyer whom the judge appointed to represent Calvin Jerold Burdine slept through a substantial portion of the trial. Burdine did not dispute that he was present when his ex-lover was murdered, or that it was his idea to rob the man, but he argued that his codefendant was the one who actually beat and stabbed the
Murder Insurance
|
157
prosecution spent $1.4 million in the Aurora theater shooting trial, and the sheriff spent even more on courthouse security and transport. In Florida, budget cuts in the wake of the financial crisis placed prosecutors in a position where they were “strained to the breaking point. . . . Instead of seeking the death penalty, maybe we’ll seek something else.”46 Not only are the trials more expensive, but appeals and habeas in death penalty cases can take decades to litigate; the average is fifteen years. Of the more than 8,000 death sentences imposed since the 1970s, the vast majority never result in an execution, and according to federal data 40 percent had sentences or convictions overturned in the courts or through clemency.47 Some of those reversed cases then result in a second or third trial. Those costs fall hardest on strapped local governments in states that do not provide adequate funds for capital cases. For example, Texas spent $12 million on indigent defense for the entire state in 2004, which was less than New York state spent just on its Capital Defender office. The vast majority of the funding for indigent defense in Texas comes from counties—which explains why so many are now purchasing “murder insurance.”48 Study after study has documented the costs of typical death penalty cases and the costs of keeping up an entire deathsentencing system, which are even greater. It is often not possible to get complete information about total court, defense, and law enforcement costs, but based on what we know, as taxpayers we should be concerned. A Washington state study found an average of over $3 million in costs for cases where the death penalty was sought.49 In King County, Washington, it cost almost $5 million both to prosecute and to defend two death penalty cases, and thirty-six prosecutors had to be let go due to the resulting budget cuts.50 A New Jersey study found that taxpayers paid a “quarter of a billion dollars on a capital punishment system that
158
|
End of Its Rope
has executed no one.”51 A New Jersey police chief, echoing the views of police chiefs around the country, commented, “Give a law enforcement professional like me that $250 million, and I’ll show you how to reduce crime. The death penalty isn’t anywhere on my list.”52 Those mounting costs may explain why rural counties have almost entirely stopped death sentencing, and why, over the past two decades, death sentencing has retreated to a handful of large, densely populated counties that can still afford it. The largest numbers of people remain on death row in California, where there have been no executions in over a decade. Although voters in fall 2016 enacted a referendum designed to hasten executions, it is still being reviewed by the courts, and the possibility of an execution in California remains remote. The main death-sentencing counties in California—Los Angeles, Riverside, San Bernardino, Alameda, Orange, Contra Costa, San Diego, Sacramento, Tulare, and Ventura counties—are spread all around the state. Yet the state spent over $4 billion on the death penalty since 1978, taking into account the costs of trials, appeals, habeas corpus, and death row incarceration. Just “the additional cost of confining an inmate to death row, as compared to the maximum security prisons . . . is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.” That is a lot of money to be spent on just thirteen executions. A report estimated that it would cost $9 billion to retain the California death penalty through 2030.53 Consider also the opportunity costs: the lost benefits of all those prosecutors, defense lawyers, appeals lawyers, and judges spending their time working on other criminal cases rather than dedicating thousands of hours to death penalty cases. Consider another statistic. In Indiana, it costs about $500,000 to pursue the death penalty as compared to under $45,000 to seek
Murder Insurance
|
159
life in prison without parole.54 Life without parole is cheap where the death penalty is expensive. Many “smart on crime” politicians have called for an end to the death penalty, and states like New York, New Jersey, and New Mexico all cited cost concerns when abolishing the death penalty.55 Those states each replaced the death penalty with life without parole. Like water rushing to lower ground, prosecutors have moved from death to life-withoutparole sentences.
The Federal Death Penalty
The federal system is the only death penalty system in the United States that does not rely on decisions by locally elected prosecutors. In federal court, federal defender offices coordinate death penalty cases. Those offices have led the way in thinking about how to select juries, use mitigation evidence, work with clients, retain experts, and reach out to victims. Until 1988, the federal death penalty was limited to treason and a few other infrequent offenses. Then Congress enacted the “drug kingpin” statute, and in the mid-1990s, in response to the first World Trade Center bombing and then the Oklahoma City federal building bombing, the federal death penalty was expanded to include just about any type of homicide. This was precisely when the death penalty was reaching new heights in Death Belt states. In addition, federal prosecutors can seek the death penalty in states that do not themselves have it, for example in the Boston Marathon trial, held in Massachusetts, a state that had abolished the death penalty over thirty years earlier. We have seen very few federal executions, however, and one reason is that although each federal prosecutor’s office has some degree of autonomy, there is centralized decision making and review in federal cases, as well as a strong federal defense bar.
108
|
End of Its Rope
trials. Burdine was not alone. His lawyer sent ten people to death row. Another client, Carl Johnson, was executed in 1995, after appellate judges denied relief.4 George McFarland, still on death row in Texas, had a county-assigned attorney who slept during trial. The trial judge commented, “The Constitution says every one’s entitled to the lawyer of their choice,” but “[t]he Constitution doesn’t say the lawyer has to be awake.” The appeals court thought that perhaps the second lawyer let the lead lawyer sleep “as a strategic move.” As legendary death penalty lawyer Stephen Bright put it, “For poor people facing the death penalty, this is what it means to be represented by ‘the Dream Team.’ ”5 Twenty years after the 1984 trial, Burdine’s ordeal was not over, even after the appeals judges reversed his conviction. The controversy did push Texas lawmakers to adopt a “Fair Defense Act” with improved standards for picking death penalty lawyers. But back in Harris County, the prosecutors prepared to retry the case, and the judge tried to bar the habeas lawyer who had fought the case for twenty years from representing Burdine. After what had happened at his original trial, Burdine refused to accept a lawyer the judge appointed. The judge responded by setting a trial date in three months, which “would have been the fastest capital trial in Harris County history.”6 Outcry resulted again, with the Harris Country Criminal Lawyer’s Association writing an open letter to the judge, saying, “Mr. Burdine’s retrial offers not only a second chance for Mr. Burdine, but also a second chance for this County to demonstrate that we are not asleep on the job, that our courts do take the rights of individual citizens seriously.”7 In response, the judge fi nally gave more time for a new team to investigate. A new lawyer stepped in and worked for over a year to uncover new evidence and eventually to secure a life sentence for Burdine, assembling a group of volunteers in Texas and internationally along the way. Together, they went on to found the Gulf Region Advocacy Center
|
Murder Insurance
161
defendants who received the least expensive representation were more than twice as likely to be sentenced to death.60 Even if the federal death penalty continues to be used in highprofile terrorism cases like the Timothy McVeigh case, the Washington, D.C., Beltway Sniper case, and the Tsarnaev case, such cases are uncommon. Even if federal officials try to make death charging a priority, they will likely end up with hardly any sentences or executions to show for it.
A Dirty Secret
“Prosecutors must reveal the dirty little secret they too often share only among themselves: The death penalty actually hinders the fight against crime,” Manhattan district attorney Robert M. Morgenthau wrote in a moving piece published in the New York Times in 1995, as New York state prepared to bring back its death penalty. His dirty secret was that he never sought the death penalty. Morgenthau wrote, “The penalty exacts a terrible price in dollars, lives, and human decency. Rather than tamping down the flames of violence, it fuels them. . . . I urge all of our lawmakers, in the strongest possible terms, not to reinstate the death penalty in New York.”61 Once it became the law, when he did not seek the death penalty for the killer of a New York City police officer, Morgenthau did not provide an explanation, since “to do so can only be misleading and will create unnecessary trial and appellate issues in death penalty cases.” Morgenthau never sought the death penalty after New York brought it back in 1995, despite criticism by then-mayor Rudolph Giuliani and then-governor George Pataki.62 This did not affect his stature and popularity; he would be reelected time and again. In 2004, Morgenthau testified in strong support of ending capital punishment in New York state.
162
|
End of Its Rope
Running for reelection successfully again in 2005, he called his opponent “wrong on the death penalty.”63 We should not forget that countless prominent prosecutors have opposed the death penalty, even if they did not do so as openly as Morgenthau. Few prosecutors have ever sought death sentences in the United States. Moreover, there are other aggressive prosecutors around the country who couldn’t be faulted for not trying. Harry Connick. Sr., in New Orleans Parish, was famous for seeking the death penalty whenever possible, but his office mostly failed to convince juries to impose the death penalty, even during the 1990s. The prosecutors who frequently obtained death sentences were always a minority, even in the heyday of the American death penalty. If prosecutors in outlier counties are nearly alone in keeping the sputtering machinery of death running, and if Morgenthau is right that public safety does not benefit from rare and costly death sentences, then the death penalty has no legs left to stand on.
Defragmenting Criminal Justice
The splintering of the death penalty may contribute to its undoing under the U.S. Constitution since it makes the death penalty more and more “unusual” under the Cruel and Unusual Punishments Clause of the Eighth Amendment. This has not escaped the notice of judges and lawyers. In 2014, Supreme Court Justice Stephen Breyer emphasized that the death penalty has “increasingly become unusual,” having “declined rapidly” in the preceding fifteen years. Justice Breyer noted “dramatic declines” within states like Texas and Virginia: “Geography also plays an important role in determining who is sentenced to death. . . . Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sen-
Murder Insurance
|
163
tences imposed nationwide.”64 It is not just that death sentences are rare and concentrated in a few counties. It is the explanation for why a few counties sentence people to death and not the others: due to population density, racial bias, and stubborn path dependency. Lawyers will use data like that I have collected to show how few counties in their states actually impose death sentences, and how arbitrary it is which counties still do. The dispersed geography of the death penalty also provides a larger lesson: we should not let a few prosecutors or counties set extreme punishments that we all pay for in the end. There are many good things about local control and local government. Local prosecutors can be more sensitive to their constituents and their community. The tradition of elected prosecutors in this country aspires to democratic accountability in criminal justice. However, the downside is that justice is highly fragmented in the United States. Neither justice nor mercy should remain entirely local. Consider that during the same time period when the death penalty came raging back in the United States, millions of people entered our prisons at a rate never seen before in our country—or in the world. In the United States, we have one-quarter of the world’s prisoners but only 5 percent of the world’s population. The rise in incarceration began when crime rose in the 1970s, but it continued to accelerate as crime began to fall in the 1990s.65 Many “big government” critics wish mass incarceration would end. We still spend tens of billions of dollars a year for our incarceration binge during the tough-on-crime decades of the 1980s and 1990s. Yet it is not the “big” federal government that has been the driver of mass incarceration, or of the death penalty. The vast bulk of prisoners are in state prisons. It was the states that enacted tough sentencing laws and fueled the prison building that allowed mass incarceration to happen. And as with the death penalty, blame for mass incarceration should be placed not just at the state
164
|
End of Its Rope
but at the local level. Many have blamed mass incarceration on rising crime, tough-on-crime politics, racial politics, new restrictive “throw away the key” and “three strikes” sentencing laws, the drug war, and other factors, and all have played a role. However, the National Academy of Sciences concluded in an important 2014 report that punitive policies, not rising crime, created mass incarceration.66 Take Louisiana, the state with the highest incarceration rate in the country. In 2016, a state auditor reported that significant cost savings could result from not prosecuting nonviolent offenders. Yet the Louisiana District Attorney’s Association objected that prosecutors should be able to use an offender’s “entire record,” including arrests that do not result in convictions. Not just prosecutors, but judges and sheriffs and prison wardens have an interest in keeping Louisiana prison beds filled—even in an era of declining crime.67 Over those objections, though, lawmakers and a smart-on-crime governor passed seven laws designed to improve reentry into society, including a law to “ban the box,” making it easier for former convicts to get jobs. Further measures are planned to use alternatives to incarceration for low-level offenders, addicts, and the mentally ill.68 Or take Mississippi, the neighboring state that also traditionally had very high incarceration rates. After a task force studied what might work best, in 2014, Mississippi took the “smart on crime” path over the “tough on crime” approach taken in the 1980s and 1990s. Prison population has already declined by about 15 percent in Mississippi, and hundreds of millions of dollars in savings are anticipated.69 The modern death penalty illustrates a larger problem with arbitrary punishment. That problem does not come from big government or local government, but rather outlier jurisdictions that have gone too far in handing down excessive sentences that we all ending up having to pay for. Entire states should not have to pay
Murder Insurance
|
165
for a few local prosecutors’ overcharging and overcrowding the state prisons. If counties had to pay to play, they would not do it. In the past, counties did not have to pay for death sentences. They sentenced on the cheap using short trials, and the costs were pushed farther down the road, to the appeals and habeas proceedings that the entire state paid for and that typically resulted in reversals. Now that counties shoulder more of the expense for death penalty cases up front, since trials must be more carefully conducted, the counties that used to be gung ho no longer seek death sentences. The team approach exemplified by Jack Stoffregen’s office in rural Texas suggests another way to save money and get better results. Adequate legal representation requires heavy lifting by nonlawyer social workers and investigators, who, incidentally, are much less expensive than lawyers. It takes a team to provide social services help: to investigate the facts and the social history of each client. Statewide public defender offices can ensure equal and fair access to justice if they are adequately funded. Statewide resources and “strike forces” could be created for mitigation evidence but also for other types of evidence. North Carolina has a public defender to give advice to criminal lawyers around the state on scientific issues beyond the expertise of most criminal lawyers.70 We can also get smart on prosecution. Some states, for example New Jersey, have attorney generals that supervise all prosecutors and law enforcement in the state. These states have not done away with local control of policing and prosecution functions, but they do have mechanisms to make sure that justice is done through a “uniform and efficient enforcement of the criminal law,” as the New Jersey statute puts it, “throughout the State.”71 Law professor John Pfaff has detailed how during the 1990s and early 2000s, even as crime fell, there was a rise in the numbers of prosecutors nationwide, from 20,000 to over 30,000.72 We do not need as many today.
166
|
End of Its Rope
In a “smart on crime” revolution, people are reconsidering criminal justice policies wholesale. State lawmakers have reduced jail and prison populations, often at the recommendation of the same sentencing commissions that in years past pushed harsher sentencing. States have required localities to bear more of the costs of incarceration. Statewide commissions such as indigent defense commissions, innocence commissions, and crime commissions can review and improve the fairness of criminal justice. Slowly and surely, smart-on-crime efforts can undo the punishment binge of the tough-on-crime era. The days when prosecutors in a few counties like Caddo Parish, Louisiana, or Harris County, Texas, could dominate the punishment practices of an entire state may be ending. Will the Supreme Court step in and put an end to the arbitrary role county lines play in the death penalty? Time will tell. Until then, the extreme disparities in death penalty cases will remain an emblem for arbitrariness and bias in criminal law. The lessons from the great death penalty decline should be extended across the board to make local criminal prosecution just.
7 THE OTHER DEATH PENALTY
In criminal justice reform, changes in the law can have truly unanticipated consequences. Life without parole is a case in point. Some fans of adopting life without parole (LWOP) hoped that it would give jurors an option not to sentence persons to death and would reduce death sentencing. Opponents feared that LWOP would harm death sentencing, which they favored. Both the advocates and the opponents of LWOP got something more and something less than they bargained for. As I will show in this chapter, while the evidence is strong that LWOP did little to hasten the demise of death penalty cases, the evidence is overwhelming that its scope has expanded tremendously. Tens of thousands of people who never could or never would have been sentenced to death now get the “other death penalty.” Texas provides a troubling case study for what can happen when death sentences shift to life-without-parole sentences. Texas was late to adopt LWOP. Before 2005, a Texas judge would tell the jury in a capital case that if the jury decided not to impose a death sentence, the defendant would automatically receive a “Hard 40” life sentence, meaning the defendant’s earliest possibility of parole was after forty years of imprisonment.1 This remote chance of parole for certain murderers, however, was frowned on by some. Texas state senator Eddie Lucio, Jr., had
168
|
End of Its Rope
introduced a law for three sessions in a row to replace Hard 40 with LWOP. Senator Lucio said that a “true” life-without-parole sentence would bring “more integrity” to the death penalty pro cess. With an LWOP option, “juries no longer would be forced to vote for a death sentence to ensure that murderers never got out of prison.”2 Supporters of LWOP also noted that there was no evidence that its introduction would decrease the number of death sentences that juries hand down. Opponents of the new law disagreed. They thought it would give “only the illusion of comfort to victims.” Worse, it would “weaken” the death penalty and confuse jurors. That the new law would allow life-without-parole sentences in non–death penalty cases meant it would “distort” the entire system, for the harshest penalties would no longer be reserved for the most serious crime, capital murder.3 Some opponents also feared that adopting LWOP would hamper death sentences. The Harris County District Attorney’s Office aggressively opposed the 2005 law adopting LWOP. The Texas District and County Attorney’s Association, which represented 3,300 state prosecutors, did not take a position on the law, in part because they were not “sure of the effect it will have on the death penalty.” Despite these objections, the third time proved the charm, and Texas lawmakers adopted LWOP in September 2005 for crimes committed after that date. After LWOP was adopted, death sentences continued to decline in Texas, just as they had been doing for years. There was no change in the rate of decline—LWOP had at best a weak effect on death sentencing in Texas. The continuing decline in death sentences in Texas tells only part of the story. What it misses is the stunning rise of LWOP. There were no LWOP sentences for capital murder in 2005, and only a few in 2006, but then there was a sharp spike. In 2007, there were eighteen death sentences and forty-eight life-without-
The Other Death Penalty
|
169
110 100 90 80 70 60 50 40 30 20 10 0 2000
2005
2010
LWOP Sentences
2015
Death Sentences
Figure 7.1 Death and LWOP sentences in Texas, 1996–2016. Source: The Sentencing Project; data collected by author.
parole sentences. In 2012, there were ten death sentences and 105 LWOP sentences. LWOP exploded in Texas in the years following its adoption. Opponents who worried that people not eligible for the death penalty would receive LWOP were right. What they got wrong was how some would end up embracing what they had previously opposed. Consider the fact that in the law’s first few years, the Harris County district attorney sentenced over one hundred people to LWOP, or one-quarter of all those who received it in the entire state of Texas.4 As Figure 7.1 illustrates, the state’s population on “life row” has exploded, while the numbers on death row continue to decline. The rise in LWOP sentences has been stunning. Data on such sentences are notoriously difficult to reliably come by, but Dr. Ashley Nellis of the Sentencing Project shared detailed data
170
|
End of Its Rope
from the Texas Department of Corrections describing who is now sentenced to LWOP in Texas. Texas now has a “life row” vastly larger than its death row ever was, with almost 800 people serving LWOP and about 9,000 people serving a life sentence with parole.5 The Texas life row can include individuals who are not eligible for the death penalty. It initially included juveniles at the time they committed the offense, twenty-eight of whom received LWOP sentences from 2005 to 2013, but Texas then eliminated mandatory life sentences for juveniles in response to Supreme Court decisions, making parole possible after forty years. Texas life row can also include intellectually disabled individuals as well as some individuals who did not commit murder but rather sexual assault against a child. In 2015–2016, LWOP sentences declined in Texas, which hopefully indicates a new direction in handing out such harsh sentences. Other states followed the same pattern, with LWOP surging as death sentences gradually declined. To be sure, most states that enacted LWOP did so before Texas did, and as part of tough-oncrime sentencing measures in the 1980s and 1990s, not as part of any debate about whether to maintain the death penalty. Others adopted LWOP in response to the Supreme Court striking down death-sentencing statutes from 1972 to 1976, seeking to adopt a “whole life” alternative to the death penalty. In other death penalty states, LWOP sentences have similarly increased. In Ohio, prosecutors seek the death penalty far less often; as recently as 2010, they charged capital murder in a hundred cases a year, but it is now down to fewer than twenty cases a year. One Ohio prosecutor, whose office seeks capital murder in a fraction of the cases it used to, and who created a special group to decide which cases are worth pursuing as death penalty cases, commented, “In every case, I have to ask, ‘Are we going to survive this?’ We have to take a case to a judge and jury and then face 25 years of appeals. Is it
The Defense-Lawyering Effect
|
113
not just the ones that created statewide capital defenders. But consider Florida and other states that have not adopted strong statewide measures to ensure an adequate defense in death penalty cases.14 We find that such states have not experienced as much of a decline as states like Virginia and North Carolina, which have encouraged adequate defenses and have seen their death sentences drop to zero. States like Florida that continue to rely on courtappointed lawyers and that fund no statewide trial offices also continue to sentence defendants to die. Such states explain the results we found. States with shoddy lawyers for the defense represent what remains of the American death penalty. The defense-lawyering effect jibes with the structure of death penalty trials and with what we know about the importance of making a strong presentation to a jury in a capital case. Relying on locally appointed lawyers, without central standards and resources, can be a recipe for the kind of incompetent lawyering that could send even innocent people to death row. As law professor Scott Sundby has noted, it does not take a “quantum leap” in lawyering to make the difference between a life sentence and a death sentence. The lawyer just needs to persuade one or two jurors to change their vote from death to life. In short, it does not take a “dream team” to turn the tide. It just takes a team, working out of a state-supported office, which saves money by using nonlawyers like social workers and mitigation investigators. These national data are borne out by what I have observed reading recent capital trials carefully in particular death penalty states: solid offices with death penalty lawyers can make a remarkable difference.
The New York Capital Defender Office
“Justice will now be served,” said New York governor George Pataki as he signed a law bringing back the death penalty in 1995. He
172
|
End of Its Rope
Death penalty abolitionists who pushed for LWOP as an alternative to the death penalty should have been careful of what they wished for. I have already described how adopting LWOP has not played any measurable role in the decline in death sentences. Instead, life sentences have skyrocketed. Today, about one in eleven people serving prison time—over 160,000 prisoners—is serving a life sentence, and over 50,000 prisoners are serving life without parole. Those numbers dwarf those on death row, who number about 3,000 people.8 According to a study by the Sentencing Project, most of these tens of thousands of prisoners who are serving life were convicted of murder. But many of them (over 10,000) were convicted of nonviolent crimes, like property offenses or drug offenses, and many were convicted of sexual assault, robbery, or kidnapping. Nellis, whose research uncovered these numbers, has commented, “Life in prison is a death sentence, without the execution.” Stark geographic disparities exist for life sentencing, as with death sentencing. LWOP is available in every state except Alaska, but more than half of LWOP sentences nationally are concentrated in five states: California, Florida, Louisiana, Michigan, and Pennsylvania.9 Why are life and life-without-parole sentences growing during a time when crime is declining? Governors are much less likely to approve parole for people serving life sentences. California governor Gray Davis said, “If you take someone else’s life, forget it. I see no reason to parole people who have committed an act of murder.” Other states have passed two-strikes or three-strikes laws for repeat offenders, requiring mandatory life-without-parole sentences. California’s three-strikes law has resulted in the state’s having one-quarter of the life-sentenced prisoners in the United States.10 While federal death sentences have declined, life sentences have increased, along with harsher sentencing laws. About 4,500 fed-
|
The Other Death Penalty
173
eral prisoners are serving life without parole, accounting for 2.5 percent of federal prisoners. These sentences are not just in murder cases, but are most common in drug-trafficking cases, and also in firearms, extortion, and racketeering cases. The U.S. Sentencing Commission has explained that many of those cases involved very large quantities of drugs. The Commission also noted that far more of the prisoners sentenced to life imprisonment were minorities. Some serve mandatory life sentences based on mandatory minimum sentences for certain crimes, including for thirdtime federal drug offenses. Far more federal prisoners, about 6,500 of them, have sentences so long that absent a pardon, it guarantees they will spend the rest of their lives in prison. Many of these people were involved in serious criminal organizations, and most had serious criminal records, but most did not themselves commit murders.11 Should we really be sentencing so many thousands of people to life sentences? These lengthy sentences have a disproportionate impact on our prison populations. To reduce mass incarceration, it is important to focus on lengthy prison sentences. After all, one person serving a ten-year sentence occupies the same amount of prison space as ten people serving one-year sentences. Moreover, due to life sentencing and other lengthy sentencing, our prisoners are generally aging. According to the federal Bureau of Justice Statistics, the number of persons fifty-five years or older sentenced to more than one year in prison surged 400 percent between 1993 and 2013, to over 130,000. These elderly prisoners have greatly increased burdens on medical care, and states have only begun to adopt meaningful programs for early release of geriatric patients or “compassionate release” of dying prisoners.12 The U.S. Supreme Court considered whether life without parole is constitutional under the Eighth Amendment or is in fact cruel and unusual punishment. It has struck down automatic
|
174
End of Its Rope
LWOP sentences for juveniles and for persons who were under eighteen years old when they committed the offenses. Such sentences cannot be mandatory. The court added in its 2016 ruling in Montgomery v. Louisiana that a juvenile’s crimes must reflect “permanent incorrigibility,” and that juvenile LWOP should be reserved for only “the rarest offenders.”13 For juveniles, these rulings mean that an LWOP case now looks more like a death penalty case, with an opportunity to present mitigating evidence. Now juveniles will need defense teams with mitigation expertise to handle those cases. In some states, hundreds of new sentencing hearings must be held. Some state courts have already ruled that imposing an LWOP on a juvenile should be rare, and others have extended the same reasoning to sentences that are so long that they are de facto life sentences.14 Death penalty lawyers and nonprofits are increasingly working to teach lawyers how to do mitigation and life history investigations in LWOP cases. Good investigation and lawyering will matter in far more cases, which will provide new opportunities and new challenges. While better lawyering impacts the death penalty, and now it will impact juvenile LWOP, better lawyering cannot readily impact widespread mandatory sentences, which are binding even on judges. Federal judges have chafed at the harshness and inflexibility of mandatory minimums and also at harsh recommendations of the federal sentencing guidelines. A bipartisan coalition of lawmakers has pushed federal legislation to undo mandatory life sentences in drug cases, citing the billions in costs, the racial disparities, and the excessiveness of the sentences.15 Far more should be done to permit lawyers to make the case for their individual client and for judges to exercise flexibility in sentencing. The rise of LWOP suggests that ending the death penalty is a “bubble under the rug” problem. You can tamp down on it, but the bubble just moves farther along—or worse, it grows.
116
|
End of Its Rope
10 9 8 7 6 5 4 3 2 1
99 20 00 20 01 20 02 20 03 20 04 20 05 20 06 20 07 20 08 20 09 20 10 20 11 20 12 20 13 20 14 20 15 20 16
19
19
98
0
Death Sentences
Life Sentences
Figure 5.3 Outcomes in capital trials in Virginia, 1998–2016. Sources: Virginia Capital Case Clearinghouse, www.vc3.org/; data collected by author.
Despite those procedures, however, the death penalty has sharply declined. In early 2017, there were just five individuals remaining on death row in Virginia, compared to a high in the 1990s of over fifty.20 Figure 5.3 shows how the number of capital trials (at which there was a capital sentencing hearing) has sharply declined in the past ten years. And the proportion of cases involving life sentences has grown. Why is the Virginia death penalty disappearing? In the 1990s, there were as many as thirteen executions in a single year, and Virginia and Texas together led the country in executions.21 Over the past decade the murder rate in Virginia has declined, but only
|
176
End of Its Rope
that it is “an established fact within the profession” that such predictions are unreliable, and that “two out of three” such predictions are wrong.17 “Dr. Death,” the gruesome monitor Dr. Grigson earned during his career, always answered “yes” to the question whether a person would be dangerous in the future. He was confident, was tall, looked like a cowboy, and prosecutors loved to call him as a witness. One might think judges would forbid junk science. The U.S. Supreme Court, however, ruling in 1983 in Barefoot v. Estelle, found expert psychiatric testimony on future dangerousness not unconstitutional per se since it was not “almost entirely unreliable.” The court emphasized in Barefoot’s case that it had already approved the Texas death penalty statute, which made future dangerousness a key part of the death-sentencing process. That the court all but invited junk science was fully admitted. Nor was there any doubt that the psychiatric testimony “increased the likelihood” that Barefoot would be sentenced to death. In 1984, Barefoot was executed. His last words included: “I hope that one day we can look back on the evil that we’re doing right now like the witches we burned at the stake.” Dr. Grigson was later expelled from the American Psychiatric Association and the Texas Association of Psychiatric Physicians for testifying to “one hundred percent certainty.” Yet he continued to testify, and he retired in 2003 after testifying in 167 death penalty trials and countless more non–death penalty cases. Dozens of those people, including exoneree Randall Dale Adams, about whom the documentary The Thin Blue Line was made, were later exonerated or had sentences reduced and were released, but never committed acts of violence again.18 Though Dr. Death retired in 2003 and is now deceased, such testimony has not gone away; death penalty laws actually de-
The Other Death Penalty
|
177
manded it by asking whether someone poses a future danger. The very concept of future dangerousness is an odd one when the required alternative to a death sentence is life in prison. There has now been substantial research on what the likelihood is that a prisoner serving a life sentence in a high-security prison will commit future acts of violence. It is very unlikely.19 Nevertheless, Virginia courts, for example, say that jurors must assess whether the person might be dangerous to society as a whole and in the abstract, and not whether they would pose a danger in prison, where the person will in fact spend their life.20 As one Virginia judge told jurors, “Society is everything. Everybody, anywhere, anyplace, anytime.” The defendant in that case argued that no, “prison society” is the relevant society, and risk-assessment research shows that there are low rates of prison inmate violence. The Virginia Supreme Court barred this risk-assessment research since it was statistical and not “individualized” testimony about the inmate.21 In recent years, some judges have been more open to good research on future dangerousness, although they still forbid testimony on the most directly on-point research regarding how prisoners actually behave in prison. In the recent Virginia case of John “Jose” Rogers, the defense expert presented testimony that, based on the assumption that Rogers would be incarcerated for life in a maximum-security prison, the jury should understand there was a “very, very low rate in general” of violence among such inmates, and Rogers’s rate “is going to be significantly lower than that already low rate.”22 Rogers received a life sentence. It is telling that judges allow junk testimony about future dangerousness that pretends to say with certainty whether a partic ular person will commit acts of violence, but they will not allow good research on actual risks of future violence. Moreover, new forms of unsound expert testimony continue to proliferate in death penalty cases. In the Marvin Lee Wilson case, despite powerful
178
|
End of Its Rope
expert evidence of intellectual disability, and despite the Supreme Court’s ruling in Atkins that the intellectually disabled cannot be sentenced to death, Texas went ahead with an execution.23 Finally, in its 2016 ruling in Moore v. Texas, the Supreme Court held that judges must use medically informed tests for whether an individual intellectually disabled. In Moore, the justices rejected the unscientific standard that the federal court of appeals had adopted, one based on stereotypes about how people manifest disability, and which had actually relied on the character Lennie in John Steinbeck’s novella, Of Mice and Men.24 In the more recent Texas case of Duane Edward Buck, the expert notoriously testified that the defendant’s race made him more likely to commit future acts of violence. In his notes, he had written, “Race. Black. Increased probability.” Indeed, that same expert had testified similarly in six other cases in Texas, each of which was reversed, but not Buck’s sentence, because in Buck’s case it was the defense that erroneously put on the junk evidence, and not the prosecution. The Supreme Court initially declined to review Buck’s case in 2011, but in 2017 the justices reversed his conviction.25 The use of flawed expert testimony, even in death penalty cases, should greatly trouble us as LWOP cases multiply and more sentencing decisions rely on concepts of dangerousness. There is good research on risk and recidivism, but judges have not been careful gatekeepers. The standards for expert testimony in criminal sentencing have not been revisited based on the standards that the U.S. Supreme Court adopted in its well-known 1993 decision in Daubert v. Merrell-Dow Pharmaceuticals, which many states also adopted.26 Following the Daubert framework, trial judges must look much more closely at scientific evidence at trial, but judges have not traditionally scrutinized evidence closely in deathsentencing hearings. Death penalty cases highlight how crucial
|
The Other Death Penalty
179
sentencing is and how important it is to rely on sound evidence. Unless judges start to insist on a scientific basis for claims of dangerousness, the next Dr. Death will be Dr. LWOP.
Excess Inventory
As the death penalty dies, it is spawning new dysfunctions, including vast death row populations that will never be executed and that remain in limbo, as well as strategic efforts by prosecutors to use the death penalty to bully defendants into LWOP pleas. Still more troubling, the worst features that once infected death sentences now crop back up in LWOP cases, including poor lawyering and false evidence. A death row can look like a life row in practice. Consider that California has the largest death row population of any state by far. Death row for men is at San Quentin Prison and for women at Central California Women’s Facility in Chowchilla, California. Almost 800 men and women are on death row, according to the California Department of Corrections and Rehabilitation.27 And the death penalty, according to corrections data, is going strong in California. What is so striking about the pattern of death sentences in California is that they have been fairly stable: rising again in the late 2000s although dipping in more recent years (see Figure 7.2). Today, California sentences more people to death than any other state. In 2015, fifteen of fifty-six death sentences nationwide were levied in California. This is particularly surprising when one considers the dramatic decrease in murders in California, where by 2013, murders reached their lowest levels since 1964.28 But California is no Texas. None of those inmates may face execution. There have been only thirteen executions in California since 1978, when the state reinstated the death penalty. There were
180
|
End of Its Rope
45 40 35 30 25 20 15 10 5 0 2000
2005
2010
2015
Figure 7.2 California death sentences per year, 1996–2016. Source: Data collected by author.
only six executions from 2000 to 2006, and there have been no executions at all in California since 2006.29 California effectively has a death penalty moratorium due to the failure to adopt a lethalinjection protocol that complies with state law.30 For years now, California has had no legal way to carry out a death sentence. And yet death sentences continue to be imposed each year. Los Angeles County and three other Southern California counties are the top death penalty counties in the country. Los Angeles, as of 2013, had 228 inmates on California’s death row, making that county alone a bigger death penalty jurisdiction than any other state aside from Florida, and making it almost as big as Texas (which has about 250 inmates on death row as of this writing).31 But the Texas and Florida death rows are continually in flux because executions are carried out each year. Texas has executed over 500 inmates since 1976, compared with California’s thirteen. Harris County, Texas, alone has executed over a hundred prisoners. California death row inmates are inventory. So long as California has a death row, they will likely remain there for the rest
The Other Death Penalty
|
181
of their lives. Appeals and habeas challenges may take more than two decades to be completed in California. In an Orange County trial in 2009, the defendant asked to be sent to death row, since San Quentin has bigger cells and more time for interaction with others than the Pelican Bay maximum security prison, where he was already serving a long sentence in solitary.32 Over four times as many inmates have died on death row in California for causes other than execution, such as natural causes or suicide, than have been executed since 1978.33 A federal judge concluded in 2014, “When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it will actually be carried out. . . . But for too long now, the promise has been an empty one.” The judge concluded that such a system is “dysfunctional,” “arbitrary,” serves no purpose, and is “unconstitutional.”34 The appellate court later reversed.35 Now the California voters have spoken again, and in fall 2016 voters approved a ballot initiative designed to speed up executions. However, the complex measure includes a number of provisions that may not in fact speed cases up, and the backlog of cases remains enormous. As of this writing, the measure has been halted for review by the California Supreme Court, and the possibility of an execution in California remains quite remote.36
Bargaining for Life
The shadow of the death penalty can be effectively used by prosecutors to obtain severe bargains. Some prosecutors defend the death penalty in an era of declining sentences on the following grounds: even when it is not often used, the death penalty is a very useful bargaining chip. Plea bargaining dominates our criminal justice system. Upwards of 95 percent of criminal convictions are negotiated through plea bargains. These bargains are supposedly
120
|
End of Its Rope
mercy when he was in [the victim’s] bedroom that night with him. . . . Admittedly it is very difficult to get up and ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would.41
After deliberating for just an hour, the jury convicted Williams. Over a decade later the Williams trial would come before the U.S. Supreme Court and change capital trial litigation forever. Only after the appeals ended did new lawyers uncover Williams’s horrific past. His mother, who said he was a “nice boy,” was the last person who should have been relied upon to describe his upbringing. Juvenile records depicted a house where Williams’s parents were sitting on the front porch in a “drunken state,” with their children having “all been drinking bootleg whiskey” themselves, ill-clothed or naked. The report went on: “Several places on the floor where someone had had a bowel movement,” urine in the bedrooms, and difficulty stepping anywhere in the kitchen due to the extent of the trash. The parents were jailed for neglect and the children placed in a foster home before being returned to their parents after a few years. Records described “awful” beating and abuse inflicted on Williams, who was tied to a bedpost, beaten with a belt while naked, and left “in the corner shaking, crying.” Williams was borderline intellectually disabled and had suffered traumatic brain injuries as a child. None of this was presented by the defense at his trial.42 Many people have heard of Gideon v. Wainright, the landmark 1963 case in which the U.S. Supreme Court said that all criminal defendants facing a felony have a Sixth Amendment right to have a lawyer appointed, even if they are too poor to pay for one. However, the ruling did not mean that the lawyer had to be any good. Years later, in 1984, in Strickland v. Washington, the Supreme Court held for the first time that the defense has more than just a
The Other Death Penalty
|
183
If prosecutors do still sometimes use the death penalty to leverage harsh sentences, they are just using the tools available; as another prosecutor explained, “Most of what we do in the criminal justice system is about the exertion of the proper leverage.”41 As I described in Chapter 2, this approach has directly led to innocent people, later exonerated by DNA testing, pleading guilty to avoid death sentences. Perhaps when confronted with the body of evidence on wrongful convictions, including in death penalty cases, the Supreme Court will one day reconsider its tolerance for highly coercive plea bargaining. The ways that prosecutors use the death penalty in plea bargaining epitomize how we give prosecutors unfair and nearly absolute power when they negotiate criminal cases. The net result is wasteful, unjust, and it overproduces harsh sentences in an era when the death penalty is inexorably declining.
Life for a Lie
The role that improved lawyering has played in the death penalty decline has enormous ramifications not just for the future of the death penalty, but for criminal justice more broadly. Outside of the death penalty, criminal defendants do not normally get teams of lawyers assigned to their cases. They do not get investigators to help uncover facts about their case. They do not get a separate trial to make the case that they deserve an individualized sentence. This problem raises the question: if decent lawyering can undo the death penalty, what does that tell us about all the people who do not get decent lawyers and receive life sentences? Take the case of Joseph Sledge: he was sentenced to two life sentences in North Carolina in 1978. Two jailhouse informants claimed that while in prison he had confessed to the murders in detail, and they denied that they had been promised anything in
184
|
End of Its Rope
return or that they knew there was a $10,000 reward in the case. Later, an informant explained that in fact he had been offered early release and a reward in exchange for falsely implicating Sledge. Since Sledge received life sentences, he did not have death penalty lawyers assigned to his appeals and habeas. No one was working on his case at all—he filed petition after petition himself, pro se, and the judges summarily dismissed all his claims. Finally, his handwritten letter caught the attention of an innocence-project lawyer, and after nearly forty years a court clerk who was cleaning out the evidence room found an envelope high on a shelf with missing crime scene evidence from the case. In 2015, after Sledge obtained DNA tests, he finally received an exoneration and his freedom.42 We need to look just as carefully at the cases that are not attention-grabbing death penalty cases. Life without parole sentences in this country have skyrocketed, as have other massive sentences. LWOP shares something unique with the death penalty: there is no conceivable way to rehabilitate a prisoner condemned for the rest of her life, just as there is no rehabilitation of a prisoner condemned to death. And the pernicious nature of junk science in convincing jurors and public of the certainty of future dangerousness is equivalent to sending someone to serve a life in prison for a lie. Karriem Saleem El-Amin went to prison when he was nineteen, in 1971, and he served forty-two years, three months, and three days. He now works at a warehouse store called Second Chance, which is owned by a nonprofit in Baltimore. He told a journalist, “I work in the receiving department. And I’m kind of happy to say every little item [that arrives] I get a chance to touch.” In Maryland, 130 lifers were released after a ruling by the Maryland Court of Appeals based on defective 1970s jury instructions. The
The Other Death Penalty
|
185
state hired social workers to help these people. None of them has reoffended or even violated probation.43 Lawmakers are starting to reexamine life sentences as part of a renewed focus on rehabilitation. In California, thousands of lifers have been released since 2011, and only thirty-three of them, less than 2 percent, have returned to prison—most not for new crimes, but for parole violations: things like “buying beer,” “possessing a banned iPhone,” and missing parole officer meetings.44 In general, evidence suggests that the likelihood that paroled lifers will commit new serious crimes is “miniscule” and “minimal” when compared with that of the general inmate population.45 After all, by the time a lifer is paroled, they may have served two decades or more in prison; older people are simply far less likely to commit crimes ever again. Our devil’s advocate was Supreme Court Justice Antonin Scalia, who in a 2015 opinion argued, “The reality is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment.” The death penalty should not trouble us, he said, because we would have “the same risk of wrongful convictions” should the “horrendous death-penalty cases” be instead “converted into equally horrendous life-withoutparole cases.”46 Justice Scalia highlighted the perverse fact that death penalty defendants receive better lawyering, but his response was to ignore both the symptom and the larger disease. Instead, far more attention must be paid to the quality of defense lawyers in all types of criminal cases. Before we celebrate the decline of the death penalty we should think carefully about what we have replaced it with: a life row approaching 200,000 prisoners. Many of those inmates faced the same pressures to plead guilty, but without the defense lawyering that death penalty cases receive.
|
The Defense-Lawyering Effect
123
may occur well after an arrest.49 Virginia also expanded access to expert evidence in death penalty cases and, in 2015, tightened the standards for qualifying lawyers to defend death penalty cases.50
Life Sentencing in Virginia
The judge seemed genuinely conflicted in the death penalty case of Cary Shane Padgett, stating, “It’s an awesome power . . . depriving a man of his life and liberty. It’s a big deal.” Shifting in his seat, he added, “I can’t undo what’s been done.” The defense lawyer argued, “Look at the arc of the life that Mr. Padgett has led.” “We know he had an issue at a very young age.” “A person who is so damaged that they don’t understand remorse, that doesn’t understand emotion—I would suggest that diminishes moral culpability.” After a moment of silence, he added, “Can it give rise to mercy?” To which he added, “I ask only for the modicum of mercy of a life sentence.” The prosecutor responded, “What mercy did he show? . . . He showed no mercy at all.” Ultimately, the judge decided to grant a life sentence.51 Such arguments at the sentencing phase highlight the difference between skilled death penalty lawyers and less experienced lawyers. I examined every death penalty trial in Virginia between 2005 and 2015, and in eleven of those twenty-one cases, the judge or jury chose life without parole. In about half of the trials, the regional capital defenders handled the cases. From 1996 to 2004, the trials that I examined had very short sentencing trials, averaging less than two days long and with most of the witnesses put on by the prosecutors. In sharp contrast, the sentencing phase at recent Virginia capital trials was usually longer than any guilt phase, averaging more than four days long. The prosecutors were
8 THE EXECUTION DECLINE
The steep arc of the death penalty decline looks mild compared to another trend: the even more precipitous decline in executions. As I will describe in this chapter, we should be troubled by how few people who receive death sentences are executed in the United States. Most people on death row languish for years or even de cades, only to have their death sentences reversed. The rapid decline in death sentencing shows how jurors, prosecutors, and judges have moved away from the death penalty. Today, our legal system is still coping with the cases of people on death row who were sentenced to death decades ago. Death penalty trials are themselves troubling, when poor legal representation, outlier prosecution practices, and shoddy evidence leads to death sentences. What we learn as the execution date approaches, however, fifteen or twenty years after a death sentence, is even more disturbing. Paying attention to the few who are executed means turning away from the death-sentencing data that I have described so far in this book and turning to execution data. Doing so captures the arbitrariness, bias, and unfairness of the death penalty even more vividly. Vast numbers of death sentences are reversed on appeal or postconviction for serious errors, including ineffectiveness of trial counsel and prosecutorial misconduct. The few deathsentenced inmates who are eventually executed are a more racially
188
|
End of Its Rope
skewed group than those initially sentenced to death. Executions are even more geographically concentrated and arbitrary than death sentences. Executions once occurred every week in the United States, and, indeed, they were commonly festive events. Rainey Bethea was the last person publicly executed in the United States: he was hanged in 1936, in Owensboro, Kentucky. Nothing about his execution was secret. There were no medics and no pharmaceuticals involved, just a rope, although, apparently, sheriffs did test different brands of rope to select something dependable for a high-profile hanging. A young black man, Bethea was convicted of the rape of an elderly white woman. A boisterous crowd of 20,000 onlookers gathered to watch, with vendors selling food and refreshments. Hundreds of reporters came from around the country, and described how “[e]very bar was packed to the doors. Down the main street tipsy merrymakers rollicked all night. ‘Hanging parties’ were held in many a home.” They called it a “Ghostly Carnival” and a “Holiday.”1 Concerned responses to this “carnival in Owensboro” may have contributed to the end of public executions in the United States.2 As illustrated in Figure 8.1, executions were rapidly declining when the U.S. Supreme Court Justices halted executions by declaring the death penalty unconstitutional in 1972. When the court resurrected the death penalty in 1976, executions also came back. The first execution after those rulings was the 1977 Utah execution of Gary Gilmore, who notoriously waived appeals and requested his execution by firing squad. By the 1990s, there were fifty and then almost one hundred executions per year. Since 1999, however, executions have steadily declined. There were only twenty-eight executions in 2015 and twenty in 2016. This downward trend in executions raises a puzzle. One can see how beginning in about 2000, around the same time death sen-
The Execution Decline
|
189
200 180 160 140 120 100 80 60 40 20 0 1930
1940
1950
1960
1970
1980
1990
2000
2010
Figure 8.1 Executions in the United States, 1930–2016. Source: Bureau of Justice Statistics, U.S. Dept. of Justice.
tences began to decline, executions also began to steadily decline. Yet these trends should not necessarily track each other. Death sentences typically take ten to fifteen years to result in executions. Since death sentences began to decline in 2000, we should only just now be beginning to see a decline in executions. Why did executions decline so quickly—even faster than death sentences? The endemic problems in carrying out executions are part of the reason why. When Ohio executed Dennis McGuire by lethal injection, it took the state about half an hour to kill him behind closed curtains, during which time he gasped for air, “making a snorting sound, almost a choking sound.”3 When Arizona killed Joseph Wood, he “gulped like a fish on land,” gasping 660 times for air while the state administered dose after dose after dose of
190
|
End of Its Rope
drugs. And the evidence is strong that when Texas executed Cameron Todd Willingham, they likely killed an innocent man. Texas likely killed another innocent when it executed Carlos DeLuna. In this chapter I will describe the troubling data on the American execution decline and then turn to macabre botched executions and the problem of executions of the innocent.
Geography and Executions
Just as a small number of counties still sentence people to death, an even smaller number of counties answer for the shrinking numbers of executions. Although several hundred people were sentenced to death per year in the 1990s, most have not been executed and will never be. Many have already had their death sentences reversed. For the approximately 4,800 death sentences imposed from 1991 through 2015, just over 600 executions have occurred so far, or less than one in eight cases. During that same time period, the average time from death sentence to execution was over twelve years. The vast bulk of executions since 1976 have occurred in the South, with over one-third in Texas, followed by Oklahoma, Virginia, Florida, and Missouri. As of this writing in 2017, three states—Texas (540), Oklahoma (112), and Virginia (112)—together account for over half of all executions since 1976. Executions do not track murders or even death sentences. Some states simply have a more lethal machinery of death, and those states become far more likely to carry out executions. Even within the largest death penalty states, just a handful of counties produce the death sentences that result in executions. Take Texas. There are 246 counties in Texas. Yet of the over 500 executions in Texas since 1976, most occurred in a handful of counties; only 84 counties in Texas have had an execution. Harris County produced over one-fifth of them. Harris County has pro-
The Execution Decline
|
191
Figure 8.2 Counties by number of executions, 1976–2015. Source: Data collected by author.
duced the most executions of any county in the United States, with 125 executions from 1976 through 2016, followed by Dallas County, Texas, with fifty-five executions, Oklahoma County with thirty-nine, Bexar County, Texas, with forty-one, and Tarrant County, Texas, with thirty-eight.4 Oklahoma is similarly concentrated, with one-third of its executions coming from Oklahoma County. We should think of executions as largely a local, county-level phenomenon. Indeed, the Death Penalty Information Center describes how just fifteen counties account for 30 percent of the executions in the United States since 1976, although they represent just 1 percent of the counties in states with the death penalty. Those counties include major cities in large death penalty states: Houston, Texas; Dallas / Fort Worth, Texas; and Oklahoma City.5 Figure 8.2 illustrates graphically which counties have executed the most people; the relative size of the font loosely corresponds to the relative number of executions performed. Yet other large counties
192
|
End of Its Rope
in death penalty states, like Los Angeles, California, and Cook County, Illinois, have had far more murders but have produced few executions. Cook County, Illinois, has had just five executions since 1976. Los Angeles has had just two.
Race and Executions
Not only are executions even more geographically biased than death sentences; they are also more racially biased. Murderers of black victims are much less likely to ever be executed. As I have documented at the county level, and as many others have long studied, there are race disparities in death sentencing. The pattern is a “white lives matter” pattern, wherein murder cases with white victims are far more likely to result in death sentences. Political science professor Frank Baumgartner has collected data on executions in the United States from 1976 through 2015. Examining those data, one observes that among the 1,422 executed in the United States during those nearly forty years, 15 percent or 210 cases involved at least one black victim. In contrast, 75 percent or 1,070 cases involved only white victims. The remaining 10 percent of cases largely involved Asian and Latino victims. This split represents a stark racial disparity. American homicides are divided roughly fifty-fifty between white and black victims. The same forces driving racial disparities in death sentencing are even more exaggerated when one sees who eventually gets executed. This fatal legacy of race discrimination provides all the more cause to end executions.
Reversals
A top reason that so few people are executed has nothing to do with botched executions or lethal-injection drugs. It is that judges
The Execution Decline
|
193
reverse death sentences on appeal or postconviction, including because they find the convicts ineligible for the death penalty, unfairly sentenced, incompetently represented, or flat out innocent. “He’s a fair man who treats everyone the same,” said a defense attorney. “He’s mean to everyone.” The defense lawyer was describing Joe Freeman Britt, America’s Deadliest Prosecutor, in Robeson County, North Carolina. Britt sent almost fifty people to death row, including Henry McCollum and Leon Brown. But only two were executed. Another died of natural causes in 2004. The rest, like McCollum and Brown, had their death sentences or even their convictions reversed. Once Britt left office in the mid-1980s to become a judge, prosecutors almost entirely stopped seeking death sentences in Robeson County. A single prosecutor drove an entire county’s death sentences through sheer force of personality, and even still, almost all those death sentences were ultimately found flawed. The routine process of appeals and habeas consistently uncovers serious errors in death sentences and murder convictions. Across the country, most death sentences are reversed and the sentence changed to a life sentence, or even something less than that. Federal data collected by the Department of Justice described how of the over 8,000 death sentences entered from 1973 to 2013, only 16 percent or 1,359 resulted in executions. Forty percent or 3,194 were overturned on appeal, including hundreds of cases in which the entire conviction was overturned, not just the death sentence. Still more inmates, 392, had their sentences commuted to life in prison. Over one hundred people have been exonerated from death row. Indeed, more inmates have been removed from death row based on appeals and commutations than have entered death row in every year since 2001, according to these federal data. The error-rate effect explains why so few death sentences ever result in executions. The death row reversals include findings of
|
194
End of Its Rope
ineffective assistance of counsel; concealment of exculpatory evidence by the state; other types of prosecutorial misconduct; flawed jury instructions; race discrimination in jury selection; and a range of other claims. As professors James Liebman, Jeffrey Fagan, Valerie West, and their coauthors found in an important study, A Broken System, judicial review takes so long in death penalty cases because death sentences are “so persistently and systematically fraught with error.” Their study states that over two-thirds of death sentences were reversed from 1973 through 1995. It should be no surprise that the most common errors involved “egregiously incompetent defense lawyers” who missed “important evidence that the defendant was innocent or did not deserve to die.”6 Louisiana provides a remarkable case in point. Since 1976, there have been twenty-eight executions in the state. During that same time period ten people were exonerated from death row, including two—Ryan Matthews and Damon Thibodeaux—who were exonerated by DNA tests. So, for every three Louisiana executions, there has been one exoneration. Of the 241 death sentences in Louisiana since 1976, professor Frank Baumgartner and Tim Lyman found that only 155 cases have been finalized, and 82 percent or 127 of those resulted in reversals by appellate or habeas judges. Still more troubling, death sentences were thirty times more common in cases with white victims than with black victims, and the inmates convicted of those crimes were fourteen times more likely to be executed. Not a single white person has been executed in Louisiana for a crime against a black person since 1752.7 As delays mount, with the average national time from sentencing to execution over eleven years, more inmates die of illness or suicide on death row. Of the inmates sentenced to death from 1973 to 2013, 6 percent or 509 faced the “other death,” as the federal government euphemistically characterizes a death not from
The Defense-Lawyering Effect
|
129
make in death penalty cases in Virginia, in North Carolina, and in high-profile terrorism trials is the difference between life and death. As Supreme Court Justice Ruth Bader Ginsburg once stated, “People who are well represented at trial do not get the death penalty.”65 For far too long, the public has been told a story that the lawyers aggressive enough to get appointed to death penalty cases presumably had talents that lawyers appointed to routine cases lacked. That’s hardly the case, and arguably the reverse was, and in some places still is, true. In death penalty cases, for decades, subpar lawyers were allowed to do minimal work, excused their failures by blaming their clients, and rather than seek or present complicated mitigating evidence euphemistically called it a problem of “double-edged” evidence. Recall that the sleeping lawyer who represented Calvin Burdine sent nine others to death row in Houston while the courts considered just how conscious a defense lawyer needed to be. Another commonly appointed Houston lawyer sent sixteen clients to death row while running a series of saloons and bars.66 Those lawyers also represented many hundreds or even thousands of other criminal defendants in non–death penalty cases that have never been carefully scrutinized. The endemic poor repre sentation by defense lawyers was one of the reasons that the authoritative American Law Institute, which set out the legal framework adopted by the U.S. Supreme Court in the modern death penalty, voted in 2009 to withdraw the section of its influential Model Penal Code concerned with capital punishment.67 The understood truth is that it takes not just a team, but an adequately funded team. Consider Georgia. It passed a law creating a statewide public defender system in 2003 and a capital trial defense office in 2005. However, in 2008 the office’s budgets were reduced amidst statewide public defender budget cuts. The office asked for $10.5 million and received $4.5 million, down from $7 million in 2005. They could not hire staff. Lawyers,
196
|
End of Its Rope
Every state that has the death penalty, as well as the federal government, authorizes lethal injection as a method of execution. A few states still authorize electrocution, lethal gas, hanging, or a firing squad. By the 2000s most states had ended use of the electric chair, which produced notorious botched executions. Most replaced the chair with an injection of a three-drug lethal “cocktail”: an anesthetic, a paralytic agent, and a drug to stop the heart and cause death. First, an anesthetic, usually sodium thiopental, would attempt to alleviate any pain to come. Second, a paralytic, usually pancuronium bromide, would make it impossible for the person to move and would suffocate them. Finally, potassium chloride would kill the person by stopping their heart. So it went until executions in the country were postponed by six months in late 2007, when the U.S. Supreme Court granted certiorari in the case of Baze v. Rees. This case challenged a planned execution in Kentucky, arguing that without knowing whether the first drug in the three-drug lethal-injection cocktail would be properly administered, excruciating pain could result. Potassium chloride burns through a person’s veins and can be expected to cause enormous pain in the process of stopping a person’s heart. Supreme Court Justice Sonia Sotomayor later described it as “the chemical equivalent of being burned at the stake.”10 It is doubtful that a mild anesthetic, commonly used in low doses during routine colonoscopies, could counter that kind of pain. The inmate’s lawyers argued that without any assurance that the drug would be properly administered, the chances of acute suffering were heightened. Moreover, the paralytic drug included in the cocktail could not only suffocate the person to death, but it could make it impossible for a person to register pain. The person could experience liquid fire burning in their veins, but would appear to observers as comatose on a hospital gurney. (One execution was not postponed, that of Michael Richards, executed on
The Execution Decline
|
197
the same day the court took the case, because the court clerk refused to allow Richards’s lawyers to file his papers a few minutes past five p.m., due to computer problems in their office.)11 Ultimately, in April 2008, the Supreme Court justices ruled in Baze that there was enough evidence that the first drug would be properly administered so the method was not cruel and unusual punishment under the Eighth Amendment. The deeply split justices concluded that if a state had a detailed written protocol, like Kentucky did, executions could go on.12 That ruling did not end the problems with this form of lethal human experimentation—they had just begun. In the years that followed, challenges to individual state execution protocols mounted. Many states did not have detailed public protocols, and officials sloppily followed whatever protocols they had. Then the drugs became hard to impossible to find. Toward the end of 2009, the only company in the United States manufacturing sodium thiopental ceased production after the Food and Drug Administration identified manufacturing violations. This resulted in a domestic shortage of the drug. Once international companies learned that their drugs were being used in executions, they stopped shipping them. Many companies did not want their drugs to be any part of the death penalty process, and some stopped manufacturing them entirely. By 2010, the United Kingdom, and then the entire Euro pean Union, banned the export of drugs like sodium thiopental.13 Growing drug shortages meant that Oklahoma, by 2010, was unable to obtain sodium thiopental. As a result, they and most other death penalty states had to turn to pentobarbital, which is used for euthanizing animals. The manufacturer of that drug, however, refused to sell it for executions. By 2014, Oklahoma could not obtain pentobarbital, and to execute Lockett officials turned to midazolam, introduced in Oklahoma and two other states as a new addition to their drug protocol. There was no
|
198
End of Its Rope
reason to think that midazolam was any better at alleviating the excruciating pain caused by potassium chloride; it is normally used in fairly minor surgeries. The macabre ironies do not stop there. Since corrections officials were not conducting medically approved procedures, and because they were using drugs not available in the United States, they had to turn to the grey market or even the black market to secure them. Executing states had to act like illegal drug buyers to conduct their executions. Untested drugs were obtained through unregulated “compounding pharmacies.” Some states turned to illegal foreign sources.14 The entire lethal-injection process became clandestine. Ohio, Oklahoma, and Virginia passed laws to keep their drug protocols secret, while other states simply refused to disclose their protocols and fought vigorously in the courts to keep their execution methods secret. Meanwhile, the American Medical Association, the American Nurses Association, the American Board of Anesthesiology, and the American Pharmacists Association (who joined the protest in 2015) all took the position that their members should not participate in executions. Indeed, pharmacists even opposed the use of the term drug for a substance used in executions.15 What happened to Clayton Lockett would shock the nation. Lockett’s lawyers had fought for months in the courts to obtain more information about how he would be executed; the state of Oklahoma had prevailed based on its execution-secrecy law. The lawyers had not seen Lockett all day. As they sat in the viewing room, the blinds rose at 6:23 p.m., and they saw their client strapped on a gurney covered by a sheet. Lockett had no last words. A prison paramedic had already tried three times to insert a needle in Lockett’s left arm to start the IV line, but each time it slipped out, leaving a small, bleeding wound. The paramedic tried again, and then again in a vein near Lockett’s biceps. She tried
6 MURDER INSURANCE
Crane County is in a rural oil-producing part of West Texas. It has just 4,000 residents, almost all of whom live in the county seat, Crane City, where the only post office and courthouse are located. “I’ve always thought Crane was a safe place to live, but we just didn’t know what was happening last night,” said a resident of Crane City in July 2008. In what goes for Crane’s downtown, a man named Gillie Thomas Thurby, Jr., assaulted a woman. Then the Crane police heard he had a knife to a man’s chest across town. When they found that victim, he was fatally wounded. After a search, the police came across Thurby in his red Dodge Intrepid. Thurby rammed into the police cruiser, crossed a highway median, and began a high-speed police chase through neighboring Upton County and then into Pecos County. Thurby abandoned his car in a pasture and took off on foot. The police tracked him down and finally arrested him in a warehouse attic in the small town of Iraan, Texas.1 “This guy wasn’t even a local guy,” said Crane County Judge John Farmer. “He just shows up here.” There had not been a Crane County capital murder case in anyone’s recent memory. Now the small county would have to shoulder a costly trial. “That’s a million dollars we don’t have,” said the judge. Fortunately for Crane County taxpayers, however, they would not have to borrow that
|
200
End of Its Rope
not make a determination whether the drugs used, such as midazolam, were effective.19 Lawyers asked the courts to end this type of human experimentation and to review Oklahoma’s lethalinjection methods, if they could be called methods. That case, Glossip v. Gross, wound its way to the U.S. Supreme Court. Botched executions—and their numbers are legion—inevitably occur with every execution technique, whether the electric chair or hangings, as professor Austin Sarat has described in-depth.20 Hangings largely ended after a botched hanging in Arizona, with gas chambers taking their place.21 Gas chambers gave way over time to the electric chair. After a series of botched electrocutions, including the high-profile botched execution of Allen Lee Davis in “Old Sparky,” Florida’s chair, electrocutions gave way to lethal injection. A problem with all state-sanctioned methods of killing was that it was impossible to test an execution method. There is no ethical way to scientifically evaluate a method to kill humans. More fundamentally, there is no humane way to carry out an inherently brutal act. To quote Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, “They are brutal, savage events, and nothing the state tries to do can mask that reality. Nor should it.”22 Judge Kozinski was dissenting in a ruling in which the other appeals judges decided that Joseph Wood, an Arizona death row inmate, could not obtain more information about the lethal injection drugs and the qualifications of the persons who would carry out his execution. Lockett had been executed in April 2014. Just a few months later, on July 23, 2014, the day after the appeals judges denied Wood relief over Kozinski’s protests, Wood would endure the longest execution in American history. “He has been gasping, snorting, and unable to breathe and not dying,” said the defense lawyer in a phone call to a federal judge in Arizona. She pleaded for Wood to be revived and his execution to be halted. After one hour, Wood was still alive. The execution
Murder Insurance
|
133
kind of money. They had just paid $4,000 into a scheme nicknamed “murder insurance.”2 West Texas is a vast, arid part of the state, ranging from the Chihuahuan Desert up to the Texas Panhandle and the Rolling Plains. In the nineteenth century, the West Texas Hill Country was sometimes still called Comancheria, reflecting the fact that the Comanche had long lived there. Legendary Judge Roy Bean held court in his saloon in Val Verde County. Bean was a hanging judge with a poor record by today’s Texas death penalty standards: apparently, at least one of the two men he sentenced to death by hanging escaped. Today West Texas is still mostly rural, though its eighty counties contain several cities with populations over 100,000, including El Paso, Lubbock, and Amarillo. Nor is the area free of serious crime; it has averaged about twenty-five capital murders a year.3 In rural West Texas counties, finding good lawyers to represent people facing the death penalty poses special challenges. There are shortages of qualified lawyers. As in Crane County, the cost of a death penalty trial can be more than a county can handle. Today, the defense is entitled to call expert witnesses to assess the defendant’s mental health and hire investigators to examine the defendant’s life story for mitigating evidence. As a result, the district attorney of Randall County, Texas, explained, “While I know that justice is not for sale, if I bankrupt the county, and we simply don’t have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?” The Nacogdoches County, Texas, district attorney commented, “I cannot put my head in the sand and pretend like this isn’t going to be a significant expense to my county.”4 A long-time public defender, Jack Stoffregen, and a local judge came up with a solution: murder insurance. Stoffregen was a public defender in Lubbock County, Texas. He started practice in
202
|
End of Its Rope
talking with the director, who has been in consultation with the IV team leader, there has been no appearance of any pain,” the judge concluded. He added, “[I]t does appear to me that there is no serious risk of pain being experienced at this time.” Then the attorney general informed the judge that Wood had finally died. The judge added, “I am not finding that there was not pain before,” and the phone call ended. Set aside the wisdom of a judge on the other end of a phone call reaching these determinations. Consider only that having judges intimately involved in such executions, with the U.S. Supreme Court permitting the execution to go forward at the last moment, places our judges in a gruesome role. A consequence of Wood’s execution was that the state did change its execution protocol, by giving lawyers “immediate access to a mobile phone” during executions.27 Many more states have imposed moratoria on the death penalty, most responding to botched executions, the lack of approved lethal-injection protocols, or shortages of lethal-injection drugs. California has the largest death row in the country, but there have been no executions in California since 2006, due to the lack of a court-approved execution protocol in the state. Other states where executions have been on hold due to injection problems include Arizona, Arkansas, Colorado, Kentucky, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, and Washington. Still other states have responded not with moratoria but by going medieval. The firing squad may make a comeback, and the electric chair already has come back on the law books at least. In 2014, Tennessee brought back its electric chair, while Virginia’s governor rejected such a measure in favor of hiring a pharmacy to make execution drugs in secret.28 Thus, executions have dropped for reasons quite independent of the forces that have contributed to the decline in death sentences. There has been a loss of confidence across the country in
The Execution Decline
|
203
the ability to carry out executions humanely. Perhaps there is also some feedback effect between botched executions, the execution decline, and the decline in death sentences. More compelling is the evidence that the cessation of executions in many states has had an influence on public opinion. The longer a state goes without executing anyone, the more its citizens may grow reluctant to sanction an execution. Psychologists Daniel Krauss, Nicholas Scurich, and I surveyed people called for jury duty in California in 2016. We surveyed 480 people in Orange County, which continues to regularly sentence people to death. We asked them questions about whether they would automatically sentence a murderer to death or whether they would favor a life sentence. Many people said they were uncomfortable with death sentences: about one-third (32 percent, or 152 of 480) said they would automatically vote for life imprisonment. A remarkable 24 percent (114 of 480) said that they would consider finding a person not guilty of first-degree murder knowing that a death sentence might follow. Finally, we asked them whether the fact that there have been no executions in California since 2006 makes them more or less likely to impose a death sentence. Nearly two-thirds or 67 percent (313 of 462) said they would be less likely. These included liberal and conservative people and respondents who were white and who were black. Even most of the 9 percent (41 of 480) who were hard-core death penalty supporters—that is, who said they would automatically sentence any murderer to death—admitted that the lack of executions in California made them less likely to sentence someone to death.29 When executions happen more and more rarely, or not at all, the death penalty clearly appears more unfair to people. That phenomenon may create feedback, making it harder for prosecutors to get death sentences. In turn, this may affect the practices of
204
|
End of Its Rope
prosecutors over time, who may be less willing to seek the death penalty if they know that jurors are less likely to impose it. The execution decline may over time reinforce or even accelerate the decline in death sentencing.
Have Innocent People Been Executed?
It is not just the means by which murderers are executed that is botched. Death penalty states are no doubt still executing innocent people. “I am Troy Davis,” read the signs and T-shirts worn by hundreds of protesters in 2013, on the date of Davis’s execution, as they faced off against Georgia state troopers, corrections officers, and SWAT teams. The T-shirts symbolized mercy at its most fundamental: empathy for another person. The Supreme Court issued a last minute stay, only to withdraw it three hours later, with state officials conducting the execution at 11 p.m. as chants of “I am Troy Davis” sounded into the night. I have argued that the notorious Troy Davis case was staged—and not because the case attracted protests and high-profile supporters worldwide. It was because the eyewitness evidence at the core of Davis’s original criminal trial was, quite literally, staged by the police.30 This was a case, as the courts later concluded, that “center[ed] on eyewitness testimony.” By the time of Davis’s conviction, however, seven of the nine witnesses at the criminal trial had recanted and said they could not identify Davis, while new witnesses implicated another man as the one who shot a police officer intervening in a fight at a Burger King parking lot. At the eleventh hour, the Georgia Board of Pardons was considering whether to grant clemency to Troy Davis, and at the hearings to testify was a leading expert on eyewitness memory, Dr. Jennifer Dysart. They never gave her time to speak, however, and they denied the request for clemency.
|
136
End of Its Rope
Word spread around the state, and the office started fielding calls from more and more counties seeking to participate. The Texas Indigent Defense Commission helped the office to expand southwest, then southeast, and then northeast. The office soon doubled to include twice as many counties, reaching 158 of Texas’s 240 counties. By 2010, all counties with a population of less than 300,000 were eligible to join, while the fourteen largest counties in Texas were not.6 “This is exceptional and represents an unparalleled level of cooperation among local governments,” said the executive director of the Task Force on Indigent Defense. Today, the still-growing office, now called the Texas Regional Public Defender for Capital Cases Office (RPDO), has eight satellite offices around the state.7 Though some Texas judges still “refuse to appoint us,” since some “judges want lawyers they know,” the reasons to use the office are compelling. The average annual cost of membership for Texas counties with a population below 50,000 is just $5,124 per year. A single capital case would cost $73,571 on average. And a capital trial costs an estimate $280,734 on average. By comparison, average costs billed by private lawyers in capital cases in Texas range from $1.2 to $2.3 million, according to one estimate.8 Of course, these are just the defense costs. Prosecutors and the courts themselves also face enormous costs if death penalty cases go to trial. The office has an excellent track record. Only one in twenty-six of the office’s cases through mid-2013 resulted in a death sentence.9 In general in Texas, defense lawyers do not usually win at trial. A 2012 study of Texas death penalty cases found that 99 percent of capital trials result in a conviction, and 80 percent result in a death sentence.10 Stoffregen’s office succeeds by keeping most of its cases out of court. Almost three-quarters of the office’s cases were pled, compared to “just 21 percent” of cases that the office does not handle. That means courts and prosecutors save costs.
206
|
End of Its Rope
the real perpetrator—play a different role: that of an innocent bystander. Police tried to get the eyewitnesses to agree on who was standing where. Frustrated, they then located a fourth key eyewitness and asked her “if she could place everyone in the positions that she saw them in.” This was an effort to get all their inconsistent stories straight. As a result, their stories started to merge. Only later were the witnesses shown photo arrays (which were not conducted properly: in a blinded fashion where the officer does not know which person is the suspect). One of the witnesses recalled at trial that when he saw the photo array he told police that he was only “like 60 percent sure that was the guy,” because “I was nervous, I was watching the gun.” That was after seeing the wanted posters for ten days at the Burger King where he worked. But at trial—where Troy Davis was sitting at the defense table—the witness pointed him out to the jury. He has since recanted. Another witness pointed out Troy Davis at trial, telling the jury, “[Y]ou don’t forget someone that stands over and shoots someone.” This claim must have surprised the prosecution as much as the defense, since the police didn’t even bother to show him a photo array. That’s because shortly after the incident, this witness told police, “I wouldn’t recognize him again except for the clothes.” He said he did see Davis’s photo in the paper the day before he testified, however. Yet another witness, who was severely injured when hit in the altercation that led up to the shooting, identified another man initially as the assailant; later, at the police station, he concluded that he no longer recalled who it was. He agreed at trial that police “kind of reassured” him that he had it wrong. I do not know if Troy Davis was innocent—perhaps no one will ever know for sure. Police so utterly contaminated the evidence, and so much has since come to light, that there was not much of
The Execution Decline
|
207
the case against him left standing by the time he was executed. One could not imagine a new jury convicting him, much less sentencing him to death. Reading through his voluminous trial materials, I was reminded time and again of what I saw when I read trials of the people exonerated by DNA tests, except that in Davis’s case, like in most cases, there was no physical evidence to DNA test. How many innocent people have been executed? We will never know. Justice Antonin Scalia famously retorted regarding evidence of death row exonerations that no one could name “a single case” where an innocent person was executed; such an “innocent’s name would be shouted from the rooftops by the abolition lobby.”31 This obscures the fact that once a person is executed, it is very difficult to investigate a case; often the evidence is automatically destroyed. Despite the formidable challenges involved, several such names have now been shouted from the rooftops. In Texas, there is strong evidence that Cameron Todd Willingham, convicted largely based on discredited arson testimony, was innocent. The 1991 fire at his home that killed his three daughters was very likely an accident and not caused by any arson at all; no matter, he was executed. A Texas judge held a court of inquiry examining whether Willingham had been wrongly executed; former governor Mark White told the judge, “If there’s no arson, there’s no crime, and, therefore he is innocent.” The judge ordered his posthumous exoneration based on “overwhelming evidence,” but that effort was reversed by the Texas Court of Criminal Appeals. Supporters began a “Shout It from the Rooftops” campaign in Texas, and the Texas Forensic Science Commission concluded in 2009 that scientific analysis showed that a finding of arson in the Willingham case “could not be sustained.” It also emerged during these investigations that the
|
208
End of Its Rope
only other evidence against Willingham, the testimony of a jail house informant who claimed Willingham had confessed, was given by a man who was bipolar and who had been promised leniency in a deal not disclosed to the defense.32 The informant came clean and said, “I did not want to see Willingham go to death row and die for something I damn well knew was a lie and something I didn’t initiate.”33 Law professor James Liebman and a team of researchers comprehensively reinvestigated the case of Carlos DeLuna, also sentenced to death in Texas, based on thin eyewitness and other testimony. The state executed DeLuna in 1989 for a murder that, they compellingly show, another man likely committed. The only evidence consisted of eyewitnesses, three of whom refused to identify DeLuna; at trial there was just a single eyewitness, who singled out DeLuna only after police pressured him. What makes the DeLuna case particularly unsettling was its near-complete “obscurity” since it was not a high-profile crime. Liebman asks, “How much more evidence do we need that our system allows the innocent to be executed?”34 There are so many ways that a high-profile murder case can go wrong. Most police still do not routinely videotape interrogations. Many police and prosecutors still do not know how to identify, much less fairly treat, intellectually disabled or mentally ill people. Eyewitnesses are still shown suggestive lineups. Defense lawyers still do not adequately investigate the history of their clients. In formants know that they can get deals, even avoiding the death penalty themselves, if they lie, and prosecutors reward them. Even in this day and age, when formerly steadfast death penalty states sentence fewer and fewer people to death, cases continue to rely on the same unreliable evidence from unreliable sources. Has the United States executed innocents? The answer to that is yes, it certainly has.
The Execution Decline
|
209
Back to the Court
In the case of Glossip v. Gross, the Supreme Court justices caught the Arizona federal defender representing Joseph Wood by surprise during arguments about lethal injections. The federal defender was challenging the lethal-injection practices in Oklahoma after the botched Lockett execution. In an unexpected turn, Justice Stephen Breyer asked, in the middle of a discussion of the facts of the murder for which her client was charged, whether the death penalty was even constitutional, “if there is no method of executing a person that does not cause unacceptable pain.” The defense lawyer responded carefully. The issue before the court had to do with lethal injection and not the constitutionality of the death penalty. She responded, “That perhaps could be true, Justice Breyer, but the narrow issue . . .” Justice Samuel Alito interjected, “And is that, is that your argument?” The defense lawyer responded, “No.” Thereafter the justices returned to the narrow but grotesque question of whether Oklahoma was using a drug protocol that has “a substantial risk of burning a person alive who’s paralyzed,” as Justice Sotomayor put it.35 Justice Alito, however, called legal challenges to execution methods a form of “guerrilla war against the death penalty,” as if defense lawyers were to blame for decisions by manufacturers and countries to cease production and export of drugs for unapproved purposes.36 “Nasty tempers and bitter resentments” boiled over at the Supreme Court, according to journalist Dahlia Lithwick.37 Ultimately, the justices concluded that Glossip would have to have offered a proven and more humane alternative to the lethal-injection protocol that Oklahoma was using in order to successfully challenge that protocol. In a still more bizarre twist, the justices placed the burden of proving that there is a more humane way to execute on the person facing execution. What a macabre catch-22.38 Why an inmate’s
|
Murder Insurance
139
ifornia, and Duval County, Florida. Only sixteen counties sentenced an average of one person to death each year from 2010 to 2015. Even the counties like Harris County, Texas, that used to lead the country in death sentences have experienced drops—in fact, it is in those counties that the decline has been the steepest. With counties such as Harris County—deemed by one judge to be “the buckle” in Texas’s “death belt”—slowing down their machinery of death, California counties such as Los Angeles, Riverside, and Orange assumed greater prominence.12 In 2015, more than one-quarter of the death sentences imposed in the country came from California. Yet the State of California has not carried out an execution in a decade, and it is unlikely to do so in the near future. There are over 3,000 counties in the United States. Some states, for example, Texas, have many counties (254), while others, like Delaware (three), have just a few. And some states, like Virginia, include cities that are incorporated separately from surrounding counties. Each of those counties or other local jurisdictions has local criminal courts, where, day in and day out, prosecutors and defense lawyers negotiate and litigate criminal cases, and judges and juries convict defendants. Out of those 3,000-plus counties, very few were ever death penalty–seeking jurisdictions. Today, what remains of the American death penalty is concentrated in just a few dozen scattered counties that are typically larger, wealthier, and politically conservative. Over the last twenty years, the pace of change has been remarkable. In the past twenty years, almost 800 counties imposed death sentences. Just in the five years from 1996 to 2000, 536 different counties imposed death sentences. That dropped to 367 counties from 2001 to 2005, to 304 from 2006 to 2010, and just 203 counties from 2011 to 2015. In 2015, only thirty-eight counties sentenced people to death, and only nine counties sentenced more
The Execution Decline
|
211
After the justices rejected his claims, finding the Oklahoma execution method sound enough, Glossip was just hours away from an execution in September 2015 when someone noticed that the wrong drugs had been ordered. In fact, the wrong drugs had already been used in the execution of Charles Warner earlier that year. The pharmacist blamed it on “pharmacy brain,” while the corrections official leading the execution team said he was “not very good at math in my head” and “just totally dropped the ball.” Glossip’s execution remains on hold.43 Lost in the botched-execution debate is another concern: there is not much evidence of Glossip’s guilt. Glossip was convicted entirely due to evidence provided by an informant, who received life without parole in exchange for admitting to the killing but testified that Glossip hired him to do it. Another inmate recalls hearing the informant bragging about how he falsely pinned the murder on Glossip. The Oklahoma appeals judges were bitterly divided, three to two, over this evidence, with three saying it was not anything “new” and the dissenters saying that “the state has no interest in executing an actually innocent man.”44 As executions continue to decline, we must ask ourselves whether the death penalty is carried out even more rarely and arbitrarily than it is imposed. Perhaps the courts will strike down the modern American death penalty as cruel and unusual punishment under the Eighth Amendment. With executions vanishing and death sentences declining rapidly, today’s death penalty is unusual in the extreme. After the death penalty is gone, however, the underlying problems will remain. The manifold flaws in executions, the high reversal rates on appeal, and the evidence of innocents murdered by the state are glaring symptoms of systemic flaws in our system. We must now try to cure the disease that afflicts American criminal justice.
9 END GAME
The death penalty has long been a bellwether. If we are experiencing its end game in the United States, this begs a different question: could the death of the death penalty point the way toward a new day for criminal justice? Call it “mission creep”: concern about flawed death sentences encourages reforms to improve the quality of criminal cases more broadly. The death penalty decline, I believe, is accompanying a change in how we view punishment in general. The same evolving standards of decency force more and more of us to question not only the death penalty, but also other punishments, especially when considered alongside the botched cases that convict the innocent and the undeserving. Although we should celebrate the cumulative reasons driving the demise of the death penalty, we can neither be complacent, given contrary impulses in the national mood, nor can we miss a historic opportunity. Once we move beyond the death penalty, with its “death is different” focus on a bright line between death sentences and all other sentences, new shades of grey emerge. We are experiencing an awakening in America. It has been over forty years since the Supreme Court brought back the American death penalty. We have spent billions on the death penalty in the years since, and what do we have to show for it? Take the state of Georgia. It was Georgia that lost the Furman v. Georgia case, in
End Game
|
213
which Supreme Court justices struck down the death penalty, but the state won a 1976 case bringing the death penalty back. In Georgia, almost seventy people have been executed in the four de cades since. It was in Georgia that Professor David Baldus and his colleagues systematically researched the role that race plays in death sentences, producing remarkable evidence that the Supreme Court then disregarded. It was in Georgia that Troy Davis was executed despite high-profile concerns about his innocence, while two other Georgia inmates were exonerated from death row. In Georgia, executioners carried out five of twenty-eight executions in the United States in 2015—it was a busy year for the Georgia death chamber. Yet in Georgia there were no death sentences at all in 2015. There was just one capital trial, and the result was a life sentence, for a man who represented himself at trial. The state capital defender convinced prosecutors to drop the death penalty in every one of the twenty-nine cases the office handled that year.1 In 2016, Georgia carried out nine executions, but there were again no death sentences. Public support for the death penalty continues to decline: fewer than half of Americans now support it, and opposition to it has reached the highest levels seen in more than forty years.2 Public opinion among both liberals and conservatives has increasingly turned against the death penalty. To be sure, in 2016, California voters decided to retain the death penalty, as did voters in Nebraska. Perhaps voters are of two minds about the death penalty, or perhaps some people like the idea of the death penalty in the abstract, but when confronted with individual cases they reject death sentences. At the state and local level, more and more voters reject politicians who keep up a 1990s-style tough-on-crime approach. Amer ica’s deadliest prosecutors are losing elections. The prosecutor in Caddo Parish, Louisiana, who said, “[W]e need to kill more
214
|
End of Its Rope
people,” left office in 2015 to be replaced by an African American former judge. For the first time in decades, in fall 2016, voters rejected an incumbent prosecutor in Florida, replacing the district attorney who had put Duval County in the top sixteen deathsentencing counties in the country since 2010. The new prosecutor plans to create a conviction-integrity unit and a review board to decide whether to seek the death penalty. In 2016, Houston voters elected a new prosecutor who campaigned for reducing death penalty prosecutions and adopting criminal-procedure reforms. The new prosecutor in Denver, Colorado, announced that as far as the death penalty goes, “We are [done] under my administration,” and “I don’t think the state should be in the business of killing people.”3 In local trials, jurors are rejecting death sentences in cases like the Aurora theater trial in Colorado, the high-profile “Beltway Sniper” case of Lee Boyd Malvo, and the case of accused 9 / 11 conspirator Zacarias Moussaui. Jurors are not choosing mercy only in high-profile cases, with top lawyers and trials that last weeks. This is also happening in small-town cases across the country that only the locals are following. In contrast, in cases like the Dylan Roof trial, in Charleston, South Carolina, in which Roof was allowed to represent himself and presented no real mitigation evidence, the jury imposed the death sentence that he all but asked for. Despite apocalyptic-sounding tough-on-crime talk resurfacing in American politics, the reality is that crime continues to decline as both sides of the deep political divide agree that the tough-oncrime path was wrong. At the state and local level, reforming criminal justice is a bipartisan priority. New attitudes to the death penalty reflect this. Take these words from a North Carolina politician: “As a conservative seeking to find the best way to protect the residents of this great state from crime, I believe the death
End Game
|
215
penalty has had its day in North Carolina.” The politician added that he and other conservatives wanted to prevent “debacles” like a botched execution in Oklahoma.4 In Missouri, conservative lawmakers introduced legislation to abolish the death penalty, with supporters calling it “an inefficient, bloated program that has bogged down law enforcement, delayed justice for victims’ families and devoured millions of [dollars in] crime-fighting resources that could save lives and protect the public.”5 In Colorado, the governor was reelected in 2014, despite abandoning his support for the death penalty. On the other side of the political spectrum, liberals who a decade earlier might have feared being lambasted as soft on crime now openly question the death penalty. Then– attorney general Eric Holder said in 2014, “I personally am opposed to the death penalty.” In a system “made up of men and women making decisions, tough decisions,” mistakes like wrongful executions can happen, “[a]nd I find it hard to believe that in our history that has not happened.”6 People have become far more engaged in criminal justice reform, from “ban-the-box” campaigns to improve access to employment for former convicts, to advocacy for treatment alternatives for the mentally ill. As part of this enthusiasm for change, one sees new allies in opposition to the death penalty. A network called Conservatives Concerned about the Death Penalty has led the charge against the death penalty in Nebraska and other states. Religious groups increasingly join calls to abolish the death penalty. The Catholic church has long opposed the death penalty and began to do so unequivocally under the late Pope John Paul II. It was no surprise when Pope Francis forcefully stated in 2016, “The commandment ‘You shall not kill’ has absolute value and applies to both the innocent and the guilty.”7 Perhaps more surprising, the National Association of Evangelicals, a group that in the 1970s had called for bringing back the death penalty, has now stated
216
|
End of Its Rope
that, although they share differing views on capital punishment, since “all human systems are fallible . . . evangelicals are united in calling for reform to our criminal justice system.”8 That statement captures how death penalty cases used to provide the reason for people to support restricting criminalprocedure rights across the board, but today, the death penalty seems to be encouraging efforts to improve criminal justice. Governors’ races, local prosecutors’ races, and judicial elections had long featured the death penalty as a lightning rod for candidates, but today, the death penalty symbolizes new concern with avoiding undue costs in criminal justice, preventing wrongful convictions, new thinking about rehabilitation, and the need for mercy. For de cades, the death penalty provided a high-profile public stage on which lawyers and citizens weighed vengeance against mercy. Professor David Garland famously called the American death penalty primarily a “communication system,” about “mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas,” and “threats rather than deeds.”9 Now the scales have tilted toward mercy. When the death penalty goes the way of other cruel and unusual punishments, we should remember the lessons learned from the great American death penalty decline. Each of the chapters in this book has described a key lesson: (1) guilt cannot be presumed even in the most serious criminal investigations and trials, and the wrongful conviction of some defendants is inevitable unless careful measures are put into place to safeguard evidence during police investigations; (2) mental health questions are endemic in criminal cases; (3) larger forces like crime declines and public opinion may not be enough to change how cases are handled on the ground; particularly because (4) poor lawyering is also endemic, but decent team lawyering can make all the difference between life and death by showing how even a murderer is a human being deserving of
Murder Insurance 1,000,000 900,000 800,000 700,000 600,000 500,000 400,000 300,000 200,000 100,000 0
1995
2000
2005
|
143
2010
Figure 6.3 Average population of counties with death sentences, 1990–2014. Source: Data collected by author.
any death sentences, and most were large, wealthy counties, like Fairfax County, the largest county in Virginia, and Virginia Beach, the largest city in Virginia. Many other large counties, though, for example Arlington and Loudon counties in Northern Virginia, have not seen a capital trial in over a decade. Figures 6.4, 6.5, and 6.6 show how even in its heyday, the death penalty was not imposed in most counties. Today, hardly any counties still impose death sentences. Indeed, as of this writing, Virginia has not had a single death sentence in over six years. The smaller, poorer counties do not bother seeking the death penalty anymore, and for the same reasons that murder insurance took off across rural Texas, cost may be an important factor in this trend. Figure 6.7 shows that average income in those counties increased from under $19,000 per year to over $40,000 per year. Robeson County, North Carolina, home to America’s Deadliest Prosecutor, is not deadly today. Since the North Carolina death penalty was reinstated in 1977, twenty-one people have been sentenced to death from Robeson County. Over the years, most of
218
|
End of Its Rope
and federal judges only rarely reversed convictions. Now judges’ hands are largely tied. The law was terribly drafted, making basic procedures for seeking relief in the courts impossible for all but the most sophisticated lawyers to understand. Supreme Court Justice David Souter once wrote that “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.”11 Prisoners find the rules bewildering, and judges do not have an easy time understanding AEDPA either. For example, under AEDPA, judges must deny relief to a prisoner if their constitutional rights were violated at trial but if state judges rejected their claims in a way that was “reasonable” at the time, based on Supreme Court law. How can an outright constitutional violation be a “reasonable” one? The state court judge must have been more than merely wrong. Yet state judges usually deliver summary opinions that themselves do not describe their reasoning—how do you know if the judge’s unstated reasons were “reasonable” or not? Any such reasonableness is in the eye of the beholder, giving judges license to allow terrible constitutional violations to stand. The Supreme Court has recently emphasized that only if no “fairminded jurists could disagree” about whether a state judge got it wrong can a judge grant a prisoner habeas relief—a totally circular standard.12 The notion that a federal judge cannot grant relief in a properly brought case to a prisoner whose constitutional rights were violated is deeply troubling. Conservative federal appeals judge Alex Kozinski says the law should be repealed, since judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”13 The AEDPA also included a one-year time limit on filing a federal habeas petition. One might think that a one-year time limit would be a simple matter to enforce, and that an entire year would be a reasonable amount of time to prepare a court filing. But the
End Game
|
219
AEDPA made a hash of it. The year is sometimes ticking while state proceedings are going on. Sometimes the year starts to tick when a petition is filed to the Supreme Court, and sometimes it doesn’t. Lawyers get tied up in knots by complex rules, some based on U.S. Supreme Court opinions, regarding when the clock is ticking and when it is not. What if new evidence of innocence comes to light years afterward? The one-year time limit includes a narrow exception for new evidence, but it provides no help if the lawyers were not sufficiently “diligent” in locating it earlier. What if the death row inmate’s lawyers were incompetent or were denied the chance to get access to the new evidence? What if a death row inmate’s incompetent lawyer outright misses the deadlines? Then the prisoner may often suffer the consequences, although in extreme situations the Supreme Court has granted relief. Even a one-year deadline, the seemingly simplest part of the AEDPA, has been overly harsh and a failure. Of course, the vast majority of prisoners have no lawyer at all to help them file habeas petitions, and they must try to follow the arcane rules on their own. Ninth Circuit Judge Stephen Reinhardt calls the AEDPA a “a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.”14 The AEDPA should be taken off the books. It is an embarrassment for the federal judiciary, and it denigrates the importance of the Constitution. Not just the federal lawmakers, but also state lawmakers, used the death penalty as a justification to impose filing deadlines and other hypertechnical procedural rules that could cause a prisoner’s appeal or habeas petition to be thrown out. Those rules threw obstacles in the way of reviewing all criminal cases, not just death penalty cases. In 2013, Florida passed a “Timely Justice Act,”
0 capital sentences
1-4 capital sentences
5-9 capital sentences
Figure 6.4 Virginia death sentences by county, 1987–1995. Source: Data collected by author.
0 capital sentences
1-4 capital sentences
5-9 capital sentences
Figure 6.5 Virginia death sentences by county, 1996–2004. Source: Data collected by author.
0 capital sentences
1-4 capital sentences
Figure 6.6 Virginia death sentences by county, 2005–2016. Source: Data collected by author.
End Game
|
221
day when DNA evidence exonerated him and implicated another man.”19 Lawmakers tried everything to grease the wheels of the machinery of death. In 1995, Congress eliminated the funding for twenty regional capital postconviction offices, which handled federal habeas petitions for mostly state death row inmates, finding them unnecessary since court-appointed lawyers could handle the cases. The resource centers saved money, since they paid lawyers a fairly low fixed salary rather than an hourly rate.20 But Congress was not trying to save money, and lawmakers were willing to spend more for worse lawyers, since having competent habeas lawyers in offices simply created “think tanks for legal theories that would frustrate the implementation of all death sentences,” as one congressman put it.21 States did the same, eliminating funding for capital appeals and postconviction offices. Florida did so, replacing them in 2003 with a pilot program of court-appointed lawyers, which led to what Florida Supreme Court Justice Raoul Cantero called “some of the worst lawyering” he had seen.22 In addition, states generally slashed public defenders’ budgets, even as expensive death penalty cases swallowed up a greater share of their budgets. The multiple and mounting absurdities are nicely reflected in “Ashley’s Law,” which Texas lawmakers enacted in reaction to a 1993 kidnapping and murder of a seven-year-old girl. It legislated expanded punishment and registry requirements for sex offenders, a response to the fact that the man sentenced to death for the crime, Michael Blair, had a prior sex offense. Under the punitive registry requirements, convicts and even some individuals not convicted can be placed on the registry. Their driver’s licenses are marked, their photos are placed on the Internet, and their neighbors are notified. There is growing evidence that such punitive registration laws do not deter sex crimes—and they may even
222
|
End of Its Rope
encourage recidivism.23 The face of the effort to pass that law, Michael Blair, was innocent of Ashley’s murder. He was convicted based on unreliable forensic testimony that included hairs and a fiber. After a DNA test conducted in 2000 did not match Blair, Texas lawmakers, who continued to make the sex offender registry requirements more onerous, declared that the Blair case had “no connection” with the law, which remains in place long after 2008, the year Blair finally left death row, exonerated by one more round of DNA testing.24
Texas as a Model
The fifteen-foot bronze statue of Tim Cole, shown clutching a book with the title Lest We Forget, was unveiled in Lubbock, Texas, in 2014. It tells a different story—one in which the death penalty becomes an emblem for how to rethink criminal justice more broadly. Cole was convicted of rape in 1986 and exonerated by DNA testing in 2010—eleven years too late; he died in prison in 1999.25 Texas is now the poster-child state for reforms to prevent wrongful convictions. Lawmakers convened a Timothy Cole Advisory Panel on Wrongful Convictions in response to his case, and in 2011 it recommended an entire platform of changes. Texas lawmakers have already enacted many of those recommendations. In 2011, Texas adopted a new policy on eyewitness identifications and required all police departments to use these improved practices. Lawmakers passed a law broadening access to DNA testing and allowing prisoners to reopen their cases based on a showing that their conviction was built on outdated or discredited scientific evidence. A Texas Forensic Science Commission made recommendations and conducted audits of forensic science in the state. Texas lawmakers enacted the Michael Morton Act in
End Game
|
223
spring 2013. The law is named after a man who spent twenty-five years in prison before being freed by DNA testing on a bandanna near the crime scene, which implicated another man for the murder of his wife. The prosecutors had concealed evidence of Morton’s innocence, including statements by his son that “Daddy” was “not home,” statements by neighbors, a footprint, and the bandanna itself. The new law requires an “open file” so that prosecutors share all their evidence, as soon as practicable, with the defense lawyers. Lawmakers convened a Timothy Cole Exoneration Review Commission as well, and in 2016 a further report recommended still more changes, including recording of interrogations, which has not yet been adopted.26 One might respond that if it can happen in Texas, the state that has executed more people in modern times than any other state in the country, then it can happen anywhere—except that it is no accident that Texas has made these changes. People in Texas have learned hard lessons from death penalty cases gone terribly wrong. Or consider the case of Kirk Noble Bloodsworth, a former marine with no criminal record who was sentenced to death for the rape and murder of a nine-year-old in his neighborhood near Baltimore. “In a matter of days, I became the most hated man in Maryland,” he said. Five eyewitnesses had misidentified him, and faulty forensics linked him to the crime. Bloodsworth recalled:
Life at the Maryland State Penitentiary can only be described as hell on Earth. I still have nightmares about it. Imagine living in a cell where you can only take three steps from the back wall to the front door. . . . My cell was directly under the gas chamber where I was sentenced to die. . . . The guards thought it was funny to remind me of that fact. They would describe the entire procedure in detail and laugh at my fate.27
224
|
End of Its Rope
In 1993, almost nine years later, DNA tests exonerated him. For years now, Bloodsworth has personally lobbied for a range of reforms. The U.S. Congress passed the Kirk Bloodsworth PostConviction DNA Testing Program, which provides funding to states to do DNA tests that might shed light on innocence. Mary land abolished the death penalty after Bloodsworth personally pushed for repeal. The director of Maryland Citizens against State Executions noted at the time, “No single individual has changed as many minds as Kirk.”28 Blair, Bloodsworth, Cole, and Morton are the tip of an iceberg. So many exonerees want to tell their stories that some have started an organization, Witness to Innocence. DNA exoneree Ray Krone, who had been sentenced to death in Arizona, started the organ ization with abolitionist Sister Helen Prejean. To date, they have played a role in repeal campaigns in Maryland, as well as in Connecticut, New Mexico, New Jersey, Illinois, and Nebraska, and they continue to speak out across the country.
Empathy over Punishment
Supernatural forces did not rid us of the death penalty—people did it, toiling for decades, and for that reason, even if crime swings up, the death penalty will continue to fade. The decline in the death penalty has been due to the decline in murders, but also due to incredibly challenging work by lawyers who litigate in the trenches in the most steadfast death penalty states, uncover high-profile wrongful convictions, contest execution protocols, and push litigation and reforms. Moreover, as mercy prevails in the courtrooms, the scattered and arbitrary death-sentencing counties lose their “muscle memory” and cease to seek the death penalty. I believe that the death penalty decline is deeply ingrained. The real aberration was the unprecedented punishment binge
End Game
|
225
during the tough-on-crime era of the 1970s through the 1990s. That era is coming to an end. The story of human progress since the time of the Enlightenment has been a story of moving away from harsh punishment. Initially, the United States rejected as cruel and unusual executions in public that used gory methods like drawing and quartering and burning alive. Our progress did not end, though, when we abandoned medieval forms of torture in favor of public hangings. Public executions remained popular entertainment in the United States well into the last century, with extrajudicial lynchings in the South as brutal as anything in medieval England. In the past century, executions in this country shifted to a “sanitized” and “medicalized” approach. The electric chair was introduced to make executions more scientific and humane. When botched executions established that they were neither, gas chambers were introduced, but they faded after World War II due to associations with Nazi genocide. Lethal injections are now the primary execution method used in every U.S. death penalty jurisdiction, and predictably, many of those executions are also botched. It is little appreciated that one cannot humanely test any technique for killing people to ensure its reliability. As professor Austin Sarat has detailed, botched executions are inevitable—as is ending the death penalty.29 We might thank more humane approaches toward criminal punishment for the decline in violent crime. The “most significant and least appreciated development in the history of our species” may be the global decline of human violence, argues psychology professor Steven Pinker in his book The Better Angels of Our Nature.30 The larger forces at work may go beyond the death penalty. Pinker attributes the decline in violence generally to a range of reasons, mostly having to do with a modern civilizing process as humane ideas and practices increasingly bind us together and
Murder Insurance
|
145
$40,000
$30,000
$20,000
$10,000
$0 1995
2000
2005
2010
Figure 6.7 Average income of counties with death sentences, 1990–2014. Source: Data collected by author.
those people had their death sentences reversed in the courts. Three people from Robeson County remain on death row, but all were sentenced in the 1990s. One Robeson County inmate was executed in 2003, and another died of natural causes in 2004. The last person to be sentenced to death in Robeson County was sentenced in 1997. What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger, wealthier, and more densely populous counties. But even those outlier deathsentencing counties are experiencing a rapid decline. Indeed, the largest declines have been experienced in the counties that sentence the most people to death. Why is that? Murder Rates
One reason is that large counties have experienced larger declines in murder rates. Our statistical analysis supported the conventional wisdom that there should be more death sentencing in more violent areas. Examining detailed data on murder from the
End Game
|
227
ence is strong that the punishment is not being regularly and fairly applied,” wrote Justice William Brennan when the court struck down the death penalty in 1972.32 The story of the great death penalty decline raises complex constitutional questions. The Supreme Court has long been concerned with arbitrariness as evidence that the death penalty is a cruel and unusual punishment under the Eighth Amendment. Today we are a country of over 320 million, and we are imposing it less than fifty times a year. We now have about ten thousand murders a year—and only a few dozen result in death sentences. Most of the remaining death sentences are imposed in states like California that are not carrying out executions. The American death penalty is now arbitrary in the extreme. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote in his opinion in Furman v. Georgia. Today, in fact, the odds of a death sentence for a convicted murderer are not so different than the odds of being struck by lighting. Supreme Court Justices still talk about abolishing the death penalty. Some do it only when they are about to retire or have retired. Supreme Court Justice Harry Blackmun did that, then Justice David Souter and then Justice John Paul Stevens. Breaking that pattern, in his 2015 opinion in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, suggested categorical opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country. Justice Breyer added concerns about wrongful convictions, arbitrariness, and delay—and so he called for full briefing on whether the American death penalty violates the Eighth Amendment.33 In 2016, Justice Sonia Sotomayor noted that many have questioned the fairness and reliability of the death penalty, and in
228
|
End of Its Rope
a sharp dissent she argued that for defendants “whose lives are marked by extensive mitigation circumstances that might convince a jury to choose life over death,” it is crucial that the jury be given the chance to “make the weighty—and final—decision whether such a person is entitled to mercy.”34 The research I have presented provides new reasons to be concerned with the constitutionality of the death penalty. The death penalty is an outlier phenomenon in a small number of counties. Furthermore, if one of the drivers of the decline is improved lawyering, then there is an added concern over the right to counsel protected under the Sixth Amendment, as well as the Eighth Amendment right to be free from cruel and unusual punishment. If people are sentenced to death because the state gives them the worst lawyers, and not because they are the worst murderers, then today’s death penalty becomes all the more troubling. Where race and arbitrary differences among county prosecutors play a driving role in death sentencing, then the punishment exists only as a bigoted relic of our past. Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it ourselves. Some law professors think the courts provide false hope, and only by changing public opinion and the law on the ground can meaningful and lasting change occur. Then again, the pace of social and legal change in recent years on other constitutional issues has surprised many observers. None thought that same-sex marriage would be so quickly adopted in states and then found constitutionally protected by the Supreme Court. Are there lessons from the same-sex-marriage movement, which resulted in a victory in the Supreme Court, for the anti–death penalty movement? The same-sex-marriage litigators achieved victories in many lower courts before they took their case to the Supreme Court, building a substantial factual record in the process. They also achieved victories in statehouses. Anti–
146
|
End of Its Rope
10,000 9,000 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000 0 1990
1995
2000 Death Sentences
2005
2010 Homicides
Figure 6.8 Total homicides and death sentences in counties with death sentences, 1990–2014. Source: Data collected by author.
CDC and the FBI, we found a connection between death sentencing and murder rates, in addition to population density and demographics. We observed this connection within counties, but also when comparing counties within states. Since it can take some time for a case to proceed to trial and a sentence to be imposed, we lagged the data. When we did this, we observed a larger connection between murder rates and death sentencing. Declining murder rates may have helped to push death sentencing over a tipping point. The relationship between murders and death sentencing is complex, though. Figure 6.8 illustrates how much total numbers of murders fell in those counties. The steady decline in death sentences looks slight by comparison (you can barely detect the downward trend), since there are so few death sentences as compared with murders. As murder rates dropped beginning in the 1990s, death sentences also fell—but death sentences declined more steeply, from over 300
|
230
End of Its Rope
the victim of a mass shooting in California commented that she wanted the culprit to die “alone and unnoticed,” serving life in prison so that “next time we see his face in the paper, it would be for his obituary.” A district attorney in Texas commented in 2015 that “a healthy percentage” of victims’ families now say they do not want the prosecutors to seek the death penalty.37 Prosecutors do not have to listen to them, but they of course try to serve their community and crime victims. In death penalty cases, the Supreme Court permitted broad use of victim-impact testimony in its 1991 decision in Payne v. Tennessee.38 One concern is that jurors will sentence people to death if the victim’s family members speak in an articulate, impassioned way in support of the death penalty, or just appeal to the jurors.39 While the court did impose minimal boundaries on the use of victim-impact testimony in death penalty cases, in a number of states juries can freely hear victim-impact testimony at sentencing. In many states, victim-rights statutes entitle victims to be heard. More family members expressing discomfort with the death penalty can therefore have a real impact. While it is notable that attitudes of victims have so dramatically changed, the phenomenon raises the question whether the victim’s desires, including those for revenge, make sense in a modern criminal justice system. Why should it matter whether one victim supports the death penalty and one does not? Shouldn’t the question be whether the murderer really was one of the “worst”? More broadly, outcomes should not hinge on how sympathetic or articulate victims are in criminal cases. The modern death penalty revolves around race. Study after study has documented how black lives do not matter as much, while cases in which the victims are white far more often result in death sentences. The role of victims extends beyond criminal trials. Parole boards may routinely deny parole, even to older prisoners posing negligible risks of recidivism, because the victims speak up at the parole hearings in op-
End Game
|
231
position to parole. Many states have eliminated parole, but the ones that keep it use parole hearings that are often secret, with decisions not explained, guidelines left unclear, and nearly blanket denials of parole routine. In surveys, many parole board members say that victim input is “very influential.”40 We need to move from retribution toward rehabilitation to benefit all. Moving beyond the death penalty opens new possibilities for rethinking overly harsh punishments. Judges need to reexamine the constrained “death is different” understanding of what is cruel and unusual punishment to consider the proportionality of sentences far beyond just death sentences. Slowly, the courts have considered how life-without-parole sentences can be excessive, for juveniles at least. But the Supreme Court has tolerated lengthy sentences under “three strikes” and other habitual-offender laws designed to put recidivists away for very long sentences. It has upheld a life sentence for a person convicted of stealing $120.75, and a California “three strikes law” sentence of twenty-five years to life for a burglar who shoplifted three $399 golf clubs.41 While the Supreme Court has said that the Eighth Amendment forbids only “extreme sentences” that are “grossly disproportionate to the crime,”42 people can change their minds about the standards for what is grossly disproportionate punishment. Twenty years ago draconian mandatory minimum sentences for drug possession were the norm. In 1991, the Supreme Court approved a lifewithout-parole sentence in Michigan for possession of one and a half pounds of cocaine.43 Today, many states have legalized medical marijuana, and some states have legalized all possession of small amounts of marijuana. California has made all drug possession a misdemeanor rather than a felony. Lee Carroll Brooker, a seventy-five-year-old veteran, was arrested for growing a few dozen plants containing just over two pounds of marijuana to treat his chronic pain. In Alabama, where Brooker lives, the law
|
Murder Insurance
147
a year to just thirty-one in 2016. The strength and significance of these findings erodes in recent years, starting in 2008. The effect of murder rates may have become much less relevant in the last decade or so. Or it may also be that the numbers of death sentences are now so small that it is hard to observe the relevant connections. The next set of findings introduces even more complexities and concerns regarding the relationship between murders and death sentences. Race Discrimination
The third major factor observed in our statistical analysis of county death sentencing was a pattern of racial bias. At the state level, race discrimination in death sentences has long dominated death sentencing, as study after study has found. These troubling patterns are also pronounced at the local level.14 We found a strong correlation between the black population in a county and the number of death sentences in a county. This racial pattern holds up across a range of statistical models. In addition, while we found that murder rates matter, they also matter in a troubling way: there is a race-of-victim effect similar to that observed in many studies of death sentencing. Most murders are within-race in this country. About half of the victims of murder are white and half are black, but, for example, in 2013, only about 400 of 3,000 murders involving white victims involved black offenders.15 The counties that have more white victims of murder sentence substantially more people to death on average. In contrast, the counties that have more black victims of murder do not have more death sentences; the effect of the black homi cide rate was statistically insignificant in all the models we tested. We observed a strong white-lives-mattering-more effect where death sentencing is concerned. Particular counties stand out in their biased patterns of death sentencing as to the race of defendants. Take Riverside County,
10 THE TRIUMPH OF MERCY
“Mercy triumphs over judgment,” goes the often-repeated phrase in James 2:13. The phrase is one of many in the New Testament and the Old that emphasize forgiveness over the strict letter of the law. What makes it special, though, is the idea that mercy does not merely overcome vengeance, but that in the end it triumphs. Mercy is to be celebrated. So, too, should we celebrate the evolution of the death penalty over the centuries, a process in which mercy has slowly but surely triumphed over judgment.1 The brief Biblical passage mixes human and divine judgment in a complex way. The passage appears less than completely merciful in context, since it goes on to say, “For judgment is without mercy to one who has shown no mercy.” That second sentence seemingly supports vengeance and retribution against people like murderers. That was what the prosecutor in the Aurora trial asked the jurors to consider when he emphasized that James Holmes had showed no mercy to his numerous victims. However, the entire passage refers not just to the fallible human judgment of people such as jurors or judges, but rather divine judgment. The ambiguity of the concept of mercy triumphing over judgment is part of its power. The passage suggests that divine mercy ultimately triumphs, but that in our own lives we can share that mercy. Tellingly, the passage appears in a section describing the
234
|
End of Its Rope
importance of everyday good works, particularly compassion for those less fortunate and in need. I am no biblical scholar or theologian, but the awakening of mercy that is driving the demise of the death penalty seems to have its parallel in this passage’s exhortation that the least desirable people deserve our mercy, because we will be judged by how well we have shown mercy to others. That is why the message has resonance for criminal punishment. Whether the state adopts one form of justice or another, we need to think about mercy in our own lives. As the defense lawyer in the Aurora theater shooting trial said at sentencing, “Justice without mercy is raw vengeance. Mercy is what makes us civilized.” The mercy recommendation, as judges sometimes call it, gives everyday citizens serving on a capital jury the ultimate power of life and death: the choice whether to sentence a person to death or not. This power of the people is central to the modern American death penalty. It is the reason we give jurors the chance to consider a person’s entire life story as they decide whether to impose the death penalty. As a society, we can exercise the mercy recommendation on a large scale. We can reconsider whether we want to remain the country that imprisons more people than any other. This is the land of the free. Yet American incarceration peaked in 2008 at well over two million prisoners, with millions more held in local jails. Hopefully the recent downward trend will continue, but far more serious work must be done to make a lasting dent in incarceration. We have heard more from punitive voices in national politics recently, but fortunately, at the same time, people remain all the more dedicated to state and local efforts to undo excessive punishment. “Smart on crime” reforms, designed to reduce incarceration, save money, focus on serious offenders, release low-level offenders, improve prevention, and assist in reentry, now attract
The Triumph of Mercy
|
235
broad bipartisan support. Across the country, people are rejecting the old tough-on-crime approaches in their communities. Texas—yes, Texas—has not only adopted a series of reforms to prevent wrongful convictions in response to exonerations, but it is also a model for how to reduce incarceration. A “Right on Crime” initiative of the Texas Public Policy Foundation brought together a coalition of supporters who implemented measures to reduce incarceration 14 percent from 2005 to 2015. During that time, crime fell at twice that rate, to the lowest levels seen in the Lone Star State since 1968. Rather than spending half a billion dollars to build three new prisons, Texas improved probation, addiction treatment, and alternatives to prison, closing three prisons and saving billions of dollars.2 The near demise of the death penalty shows the way to escape self-defeating cycles of excessive punishment. We need those lessons now more than ever. After the death penalty fades into insignificance or legal abolition, we must rethink how we treat the worst of the worst criminal offenders. We can study evidence, conduct statistical analyses, assess costs, and make smart decisions, rather than spending billions to lock people up and throw away the key. In this book, I have described how justice is fallible, defense teams matter, and unchecked prosecutorial power can be arbitrary, biased, and immoral. In this chapter, I will explain how we can use the lessons from death penalty cases to address each of those three problems. Second, I will turn to the regenerating force of mercy in criminal justice. For mercy to triumph, we cannot cast blame on law enforcement, judges, defense lawyers, and prosecutors. We cannot undo mass incarceration just by focusing on low-level and nonviolent offenders, although that is one starting place. We have to embrace mercy for the most serious offenses. We have to be willing to shorten prison terms and release convicts. In short, we have to focus on rehabilitation and mercy. We must
150
|
End of Its Rope
in a single year goes to Philadelphia County, which sentenced twenty people to death in 1983 (followed by Harris County, Texas, which sentenced seventeen people to death in 1978, fifteen people each in 1983 and 1996, and sixteen in 1994). The flip side of the inertia effect is that once counties stop seeking death sentences, they tend to keep it that way. In recent years, notoriously pro–death penalty prosecutors have retired or have been defeated in elections. “Cowboy Bob” Macy, the district attorney in Oklahoma County, secured fifty-four death sentences and twenty executions while holding office from 1980 to 2001. Along the way, judges called out Macy’s “persistent misconduct,” three people were exonerated from death row, and almost half of the capital cases were scrutinized due to flawed forensic testimony. Macy retired in 2001, and from 2010 to 2016 the county produced just three death sentences.23 The people who are still sentenced to death face aggressive, bigmuscled prosecutors but are represented by weak, resource-starved defense lawyers. Take Duval County, Florida, one of the sixteen counties that produced more than five total death sentences from 2010 to 2015. A detailed report by Harvard Law School’s Fair Punishment Project found that the sentencing phase at those trials lasted on average just one day. The defense typically put on only a few hours of mitigation evidence, a far cry from the comprehensive evidence that a good defense team presents. Public defenders are elected in that county. The public defender who held office during that time frame, until he was defeated in fall 2016, had promised to be “less confrontational” with police and promptly fired the experienced death penalty lawyers in the office. In past cases, the defense in Duval utterly failed to put on evidence of organic brain damage and disability, leading to reversed death sentences. Nine of the sixteen top death-sentencing counties had the same average defense sentence case of just one day.24 Thus, the defense-lawyering effect is
The Triumph of Mercy
|
237
DNA exonerations are just the tip of the iceberg, and we have no idea how many more people have been wrongly convicted, including in less visible cases that are plea-bargained, or in misdemeanors, or in juvenile cases. The only way to avoid inevitable errors is to invest in getting criminal investigations right, and not just in death penalty cases, but in all cases relying on confessions, eyewitnesses, forensics, informants, and the rest. Our criminal justice system is less than perfect, and after the death penalty fades the same challenges will remain. We must take measures to protect against wrongful convictions. What measures are those? Confessions must be videotaped in their entirety. There should be a record of who said what. Judges should carefully review the reliability of all interrogation evidence. Police should not be allowed to use unduly coercive interrogation tactics. Experts should be allowed to explain the phenomenon of false confessions to jurors. And police should be trained to take special care when questioning juveniles or disabled or other vulnerable individuals. Informant testimony, whether jailhouse informants or other incentivized witnesses, should not normally be allowed, not without videotaped testimony and careful screening for reliability. Very little has been done anywhere in the country to prevent false convictions due to lying informants, although a few jurisdictions have begun to address this terrible problem. Eyewitness evidence should be used only when eyewitnesses are tested using reliable and blind lineups, in which the officer does not know which person is the suspect. Judges should carefully review eyewitness evidence to assure its reliability. Judges should not allow dramatic, but potentially misleading, in-court identifications. The National Academy of Sciences in its 2014 report laid out detailed reforms and recommendations to safeguard eyewitness evidence in our courtrooms, but much work needs to be done to ensure that police and actually use the evidence properly.7
238
|
End of Its Rope
Many police departments traditionally have had no written policies on how to do lineups. That is changing, but many police still use outdated procedures that can outright contaminate the memory of an eyewitness. Good evidence that can be used to convict guilty people may be routinely lost, and flawed eyewitness identifications continue to be used to convict the innocent. Just like eyewitness memory should be documented and tested carefully in lineups, forensics must be carefully collected by trained crime-scene analysts and analyzed by impartial, independent scientists, using clear scientific standards. The National Academy of Sciences laid out detailed reforms to improve the use of forensics in this country in an important 2009 report, but those recommendations have mostly not taken hold. Because most criminal cases, even murders, do not have DNA to test, and because a surprising number of cases with DNA involve complex mixtures that raise real interpretive challenges, we still commonly depend on unreliable forensics. More research is being done to provide a more reliable scientific basis for fingerprint and ballistics and other types of forensic comparisons. Slowly, crime labs have started to audit old cases from the 1980s and 1990s. The scientific community has started to consider standards for explaining forensics accurately in the courtroom. Quality controls in crime labs must improve; labs across the country have been beset by scandals involving errors and even outright fabricated evidence in thousands of cases. Like so much in our criminal system, when police and crime labs mass-process cases, quality suffers because quantity is overwhelming. Prosecutors and police should not be able to hide evidence of innocence, as they did in so many DNA-exoneree cases. In many cases, it was only because of the special energies dedicated to death penalty cases that lawyers eventually uncovered evidence of innocence after years of trying. One wonders how often the truth
The Triumph of Mercy
|
239
is concealed in more routine criminal cases or in plea-bargained cases where there is no opportunity to put the evidence to the test in court. Open-file discovery should be required of police and prosecutors so that the defense can see all the evidence they have, including in plea-bargained cases. Texas has led the way in reforming criminal discovery, and other jurisdictions are slowly adopting these improvements, often in response to the stories about what death row exonerees endured. Perhaps these changes can be of some comfort to the innocent people who suffered for so many years on death row.
Team Defense
The decline of the death penalty suggests new ways to eliminate the underlying problems in our criminal justice system. The capital defender teams that have proved so effective do not just try to win trials; they help to ensure that few cases go to a trial. They investigate from the moment they are assigned a case, heavily relying on social workers and nonlawyer mitigation experts who know how to uncover a person’s life story. They get far more individualized and lenient pleas than court-appointed lawyers would get. They point the way to how effective lawyering and social work can make a difference even within a system of plea bargaining. Who gets an effective defense? Today, in some states at least, people facing the death penalty receive a trial team with lawyers and investigators. In white-collar cases, wealthy defendants can hire dream teams, spending millions or tens of millions on their defense. They often win trials, and far more often they negotiate lenient outcomes. Some cutting-edge public defenders, typically with the help of nonprofit organizations or private donations, provide investigators and team-based representation in regular criminal cases. Social workers increasingly join defense offices and in some “participatory
|
Murder Insurance
153
tion drove the death penalty for decades. Large counties like Harris County are all that is left of the death penalty, but even in the last bastions of the death penalty, the muscle memory has faded.
Overload
Consider what happens when a lone prosecutor embarks on a surge campaign to seek death sentences. The result in Maricopa County, Arizona, was a full-fledged “capital case crisis” that threatened to swamp the local courts. Maricopa County, which includes the city of Phoenix, is a major populous urban county like Harris County and Los Angeles. In the last ten years, Maricopa County rose to new prominence in the death penalty; since 2010 it has been the second-highest county nationally in death sentences. Maricopa County has imposed ninety-two death sentences in the past twenty years. The surge began in earnest under the county prosecutor from 2004 to 2010 (who unsuccessfully ran for state attorney general and then was disbarred in 2012). That prosecutor was known for aggressively pursuing the death penalty, doubling the number of times that the office sought the death penalty. The result was a crisis. A local judge complained, “We had more death-penalty cases on our plate than any jurisdiction in the nation, . . . we didn’t have enough prosecutors, judges, or qualified defense attorneys to keep things moving along at a rate that anyone could define as satisfactory.”32 Cases did not have lawyers assigned to them. There were not enough mitigation specialists to handle the cases. While some defense lawyers presented weeks-long, careful mitigation cases at trial, on average they presented only two and a half days of evidence. That’s because there were a large number of cases handled by a few lawyers who routinely took a heavy load of capital cases
The Triumph of Mercy
|
241
any other reforms designed to prevent mass incarceration, harsh sentences, insufficient alternatives to incarceration, or wrongful convictions to be truly fair and effective. Think about the team that works on a death penalty case, examining the accused murderer’s school records, mental health history, substance abuse problems, childhood abuse, and the rest. Recall how Terry Williams’s trial lawyers knew nothing about the horrific conditions in his home, with drunken parents, abuse, unsanitary conditions, and only brief and ineffective interventions by child welfare authorities. For his entire childhood, the state failed him and his siblings. It is a sad statement that as a society, we so often invest in a careful assessment of a person’s tragic situation only once they have committed a terrible crime. Really top-notch public defenders, like the Bronx Defenders, have pioneered a “holistic” model, using a team approach much like in death penalty cases. They do not just defend accused criminals but also help them with social services such as welfare and counseling. They try to help their clients get their lives on track, and they negotiate the complex collateral consequences of convictions that can make it so hard to work, obtain housing, and maintain a family. When we treat social problems with prison time, it then becomes the responsibility of criminal lawyers to provide social services. It is also a sad statement that neighborhood social ser vices have to be housed with criminal defenders rather than be unconnected from our criminal and prison system. If we expand social services, we can make mercy a larger part of society, not just an afterthought of the criminal system.
Rethinking Prosecution A smarter approach to criminal defense complements a smarter approach to prosecution. The personal preferences of individual
|
242
End of Its Rope
prosecutors should not drive our most serious criminal punishments and taint the thoughtful work of the vast majority of our prosecutors. Prosecutors have acquired a near monopoly on power in our criminal justice system. That must end. It is not fair to expect prosecutors to make decisions about drastic sentences largely alone and without sound information from police and the defense, a community perspective, and informed review by judges. Prosecutors are dedicated public servants. They should not have to play God. Even as the death penalty fades, its shadow continues to fall over cases that do not result in death sentences but in which individuals agree to life sentences to avoid the threat of an execution. Those life-or-death negotiations vividly illustrate the inhumane operation of the machinery of our entire system of plea bargaining. How can an agreement under the threat of death be a “voluntary” deal, a contract freely entered between two parties? Critics of plea bargaining have long pointed out that it may save the cost of a trial, but it also encourages shoddy, coercive, machinelike handling of people’s cases.10 What is “voluntary” about plea bargaining? Still worse, plea bargaining has an innocence problem. The Supreme Court has made the assumption that “[d]efendants advised by competent counsel and protected by other procedural safeguards are . . . unlikely to be driven to false self-condemnation.”11 We now know that is not true. I have described how dozens of innocent people exonerated by DNA tests pleaded guilty because their lawyers probably correctly told them that they would be sentenced to death if they faced a trial. We have no idea how often that occurs. Still, for decades, the Supreme Court has said that the fact that a defendant might plead guilty to avoid the death penalty does not make a plea involuntary. Our entire criminal justice system now is a system of plea bargaining. The reality of this has begun to set in.
The Triumph of Mercy
|
243
Just as most death penalty cases are now negotiated for lesser sentences, the vast majority of criminal cases are negotiated. Trials are scarce. In my home state of Virginia, only 1 percent of felony cases go to a trial. Some courthouses have not seen a felony trial in years. More recently, the Supreme Court has emphasized that plea bargaining is a cost saver that we have to live with since it can “conserve valuable prosecutorial resources.”12 We do not have to live with a concept of efficiency that has such a terrible cost in human lives. We need to open the black box of prosecutorial discretion, study how to better prioritize which cases deserve more consideration, and give prosecutors more information to do justice. We must help prosecutors turn from assembly-line processing of convictions toward shorter sentences and rehabilitation.
Rehabilitation
Pope Francis told the representatives in the U.S. Congress in his 2015 address that the death penalty should be abolished because “all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of a rehabilitation.”13 Rehabilitation is incompatible with the death penalty but also with life without parole and a wide range of overly harsh punishments. The abolitionists who touted LWOP as a sound alternative to the death penalty should have been careful what they wished for. Now we have about 50,000 people serving LWOP, over 100,000 more serving life sentences, and many more serving “virtual” life because they will never receive parole before their death. LWOP shares the same problem as the death penalty: it does not permit any possibility of rehabilitation. We could adopt modified LWOP, like in the European Union, where the law requires periodic review and possibility of early release. This is
156
|
End of Its Rope
understandable to assume that an execution could be done quickly, while the costs of housing a prisoner for years would mount. That was all wrong. The death penalty is far more expensive than imprisonment, and the cost of the death penalty experiment in our country since the 1970s is in the billions.43 “It’s 10 times more expensive to kill them than to keep them alive,” said Judge Donald McCartin, who had been nicknamed the Hanging Judge of Orange County. “The death penalty is damn expensive,” as Fulton County Georgia Judge Stephanie Manis put it simply.44 It should be no surprise that it is the larger and more populous counties that still engage in death sentencing. Counties have faced bankruptcy, staff firings, and tax increases because of death penalty cases. Just look at counties like Jefferson County, Florida, which had to freeze all local government salaries and cut its library budget to pay for two death penalty cases. In Clallam County, Washington, a $1 million retrial in a death penalty case prompted a 15 percent cut in county staff. Osage County, Kansas, had to raise its property taxes to pay for a capital trial in 2010. Richardson County, Nebraska, almost went bankrupt; it had to mortgage its ambulances to pay for two death penalty cases.45 Financial pressures on state and local governments became especially severe after 2007 in the wake of the financial crisis. The increased costs of a death penalty case begin the moment a prosecutor decides to seek the death penalty. The defense is typically entitled to two lawyers and must begin intensive mitigation investigations. As trial approaches, jury selection will be far more time consuming and intensive. The trial itself will be far longer due to the complexity of the sentencing phase. The increased trial costs are not just defense costs, but also court costs, including witness transport and protection and security, and costs to the prosecution, which can be astronomical as well. Recall how the
The Triumph of Mercy
|
245
criminal record would still appear on her nursing license and on countless criminal records databases. The judge said most employers “do not have the time or resources to gain a comprehensive understanding” of who she is, so “I have done that for them,” and concluded that she “is rehabilitated.” “As her sentencing judge, I owe it not only to [her], but to her family and community, to do my part to lift any remaining hardship on her.”17 Rehabilitation has become a new watchword, with reentry after prison and alternatives to prison spreading far and wide. The first prisons built in the United States were “penitentiaries” where prisoners would learn to “repent their sins”; later, prisons were termed “reformatories” in order to improve inmates and make them good citizens. But rehabilitation has been neglected for decades. Prison education programs, libraries, and programs to help offenders readjust to society were slashed. The federal sentencing statutes did not say anything about rehabilitation; the Supreme Court finally stepped in to say in 2007 that “self-motivated rehabilitation” is relevant.18 At the federal level, in 2013, the U.S. Attorney General ordered prosecutors to think twice before seeking mandatory minimums.19 Still, the basic model leaves decisions to the prosecutors’ offices. Although the largest corporate criminals get the benefit of leniency and out-of-court deals, rehabilitation and deals to avoid a criminal record are not typically given to individuals. Today, the most cutting edge “smart on crime” change is occurring at the state and local level. Many state lawmakers and sentencing commissions are rethinking costs of incarceration and are examining whether they can better predict who are the recidivists and who do not pose risks and can be released early. They are trying to make punishment “evidence based.”20 States are considering doing away with punitive fines and costs imposed on convicts who cannot pay. Reentry is becoming a new focus for research
246
|
End of Its Rope
and policy, to “ban the box,” eliminate barriers to employment, and help offenders find jobs and become productive members of society. Restoring voting rights to felons is another way to make former offenders equal citizens. If offenders can be outright rehabilitated, the entire system can be reoriented away from incarceration, with billions in savings and untold relief of human suffering. Countless inmates suffer from mental illness, from depression to bipolar disorder to schizophrenia. Jail and prison officials may place mentally ill prisoners in solitary confinement, which may only make the condition far more severe. Mentally ill or disabled inmates may suffer from excessive force at the hands of jail or prison guards, even resulting in deaths. Still others face neglect and disregard of their medical needs. Many states have closed their state-run mental institutions, and jails and prisons have taken their place, but without adequate ability to diagnose or treat mental conditions. Most criminal defendants do not receive the same mental health screenings that are now routine in well-handled death penalty cases. Police and other criminal justice professionals must be better trained and given resources to screen people with mental health problems for treatment, not jail. Death penalty cases make vivid the broad problem: for too long we have criminalized mental illness rather than treating it.
Release
California may still produce the most death sentences in the country, but it also shows the path away from mass incarceration: releasing more prisoners. For decades, California symbolized the excesses of tough-on-crime punishment, building a raft of new prisons and adopting three-strikes-type laws. In a landmark 2011 Supreme Court ruling, the justices found that California’s prisons
|
The Triumph of Mercy
247
were so overcrowded as to constitute “cruel and unusual punishment” under the Eighth Amendment. Supreme Court Justice Anthony Kennedy highlighted how seriously mentally ill prisoners “languished for months, or even years, without access to necessary care.” The prisons would “hire any doctor who had a license, a pulse and a pair of shoes,” serious medical conditions were going untreated, and facilities lacked “necessary medical equipment” and did “not meet basic sanitation standards.” The prisons were as much as 300 percent overcrowded, with “toxic” living conditions. Relying in part on rulings in death penalty cases, Justice Kennedy affirmed that prisoners have “human dignity” and ordered that the California prisons reduce overcrowding so that prisons reached no more than 137.5 percent of their capacity.21 In the years since, the California prison population has dropped by nearly 50,000 inmates from over 162,000 in 2006 to about 113,000. This is the biggest decrease in imprisonment in the country, according to federal data.22 Mass decarceration resulted in no effect on crime rates in the years that followed, according to two studies of the California prisoner releases.23 Realignment, as the new law passed in response to the Supreme Court’s ruling calls it, shifted responsibility for holding prisoners from the state to the counties. California counties now have to pay if they want to hold more people, and if their local jails are overcrowded they have to release more people before and after trial. Jails and prisons had to prioritize who could be released, but there were only so many low-level and nonviolent prisoners who could be released. Meanwhile, in 2014, the state enacted legislation making drug possession a misdemeanor and not a felony. In a large-scale exercise in mercy, California governor Jerry Brown granted parole to thousands serving life sentences, including inmates who were convicted of violent crimes before they were twenty-three years old, and including for violent
Murder Insurance
|
159
life in prison without parole.54 Life without parole is cheap where the death penalty is expensive. Many “smart on crime” politicians have called for an end to the death penalty, and states like New York, New Jersey, and New Mexico all cited cost concerns when abolishing the death penalty.55 Those states each replaced the death penalty with life without parole. Like water rushing to lower ground, prosecutors have moved from death to life-withoutparole sentences.
The Federal Death Penalty
The federal system is the only death penalty system in the United States that does not rely on decisions by locally elected prosecutors. In federal court, federal defender offices coordinate death penalty cases. Those offices have led the way in thinking about how to select juries, use mitigation evidence, work with clients, retain experts, and reach out to victims. Until 1988, the federal death penalty was limited to treason and a few other infrequent offenses. Then Congress enacted the “drug kingpin” statute, and in the mid-1990s, in response to the first World Trade Center bombing and then the Oklahoma City federal building bombing, the federal death penalty was expanded to include just about any type of homicide. This was precisely when the death penalty was reaching new heights in Death Belt states. In addition, federal prosecutors can seek the death penalty in states that do not themselves have it, for example in the Boston Marathon trial, held in Massachusetts, a state that had abolished the death penalty over thirty years earlier. We have seen very few federal executions, however, and one reason is that although each federal prosecutor’s office has some degree of autonomy, there is centralized decision making and review in federal cases, as well as a strong federal defense bar.
|
The Triumph of Mercy
249
struggling with illness and addiction. We need to stop warehousing inmates and instead provide better education and social services both inside and outside jails and prisons. We need to help with reentry when inmates are released. But just as important will be investing in social services, education, and mental health and addiction-prevention programs to keep communities intact in the first instance—and then again when inmates are released. After all, if we wind down mass incarceration in this country, many hundreds of thousands of people must be released. What happens then? Without any meaningful rehabilitation in prisons, without education programs and skills programs, with violence and isolation and poor medical care in prison, simple release is a recipe for crime. We need to help former inmates keep and rebuild connections to the community. Unless we fix jail and prison conditions and focus on release and reentry, which fortunately we are starting to do, we will fail to stop the cycle of mass incarceration.
Getting Smart on Mass Incarceration
The American system of mass incarceration costs upward of $182 billion a year, according to an estimate that took into account not just the costs of running prisons (over $80 billion) but also court costs and policing costs.26 The hardships on those imprisoned for lengthy sentences continue long after incarceration, since former convicts may face a broad range of collateral consequences barring them from voting, jury service, welfare and government benefits, and eligibility for jobs. Those harms fall on family members and entire communities. Imprisonment has changed the social fabric of our country.27 The new smart-on-crime movement seeks to unwind mass incarceration so that we can all benefit from huge savings—for our criminal justice system and for our entire country. Much remains to be done.
|
250
End of Its Rope
Calling our system one of mass incarceration is itself something new; the scale of imprisonment has grown so large in the United States that the term is now a commonplace.28 Politicians increasingly call for an end to the “era of mass incarceration.” These concerns are bipartisan. We need “criminal justice reform,” said President Barack Obama in his 2015 State of the Union address. Senator Rand Paul calls for criminal justice reform “in the hopes of tearing down the wall between the two Americas.”29 The lawyer for Koch Industries, run by Charles and David Koch, who have increasingly donated funds to criminal justice reform causes, says such reform “is good for all of us—the rich, the poor, and everyone else.”30 That is why people are getting smart on crime. The time seems ripe, despite some anxiety about increases in crime in a few cities. People on all sides of the political spectrum increasingly agree that serious solutions are needed. We have a prison population of greater than two million; it is only slowly declining and is still vastly larger than the 300,000 or so people in state and federal prisons in the late 1970s. In addition, jails “churn” large numbers of people awaiting trial or serving short misdemeanor sentences. We jail as many as 12 million people a year.31 Many in jail are there simply because they cannot afford bail. Recent smart-on-crime efforts in a range of states to abolish or reform the cash bail system will hopefully reduce the reliance on both bail and jail.32 Prison populations are defined by how many people are put in prison and for how long. Criminologists Todd Clear and James Austin call this the “iron law of prison populations.” Ten people can serve one-year sentences in the time that one person services a ten-year prison term. Thus, one way to combat mass incarceration is to reduce lengthy sentences. Reducing the length of sentences does not require complicated new programs. Sentences have to be reduced not just at the front end but also at the back end, where punitive parole policies too easily return people to
|
The Triumph of Mercy
251
prison for minor infractions.33 That simple solution—cutting lengthy sentences short—has real appeal. People convicted of violent crimes have lower rates of recidivism than people who commit drug crimes or property crimes. Moreover, people “age out” of criminal behavior. As Clear and Austin argue, “[T]here is no reentry program more powerful than having a 35th birthday.”34 Far more “violent” convicts may be adequately condemned with less punitive sentences. We also need to reduce the number of people going to prison. Eliminating mandatory sentences gives local prosecutors and judges more ability to do justice. Many common-sense proposals to reduce incarceration focus on programs like alternatives to prison for nonviolent offenders; many hundreds of thousands of nonviolent prisoners could be released or sentenced to alternatives to prison, with few risks posed to the public.35 Still, the majority of those in prison were convicted of violent crimes. In federal prison, this is less true; there are many individuals in federal prison for nonviolent drug and immigration offenses. The California success in prison reduction points toward a new approach, and although it is just one (very large) state, over thirty states have been getting smart on crime and reducing imprisonment while reinvesting in rehabilitation and treatment. These are states around the country that have faced budget shortfalls and taken a hard look at the exploding costs of mass incarceration. They include Alaska, Georgia, Maryland, Mississippi, and Oklahoma. In Oklahoma, voters enshrined the death penalty in the state constitution in 2016 but at the same time approved smart-on-crime measures to reclassify as misdemeanors certain felonies and to invest cost savings in addiction and mental health treatment. We need to strike crimes off the books that punish nonviolent behavior or that overly punish low-level crimes. We need to reduce the length of sentences, release more people early, and use parole more. Red
162
|
End of Its Rope
Running for reelection successfully again in 2005, he called his opponent “wrong on the death penalty.”63 We should not forget that countless prominent prosecutors have opposed the death penalty, even if they did not do so as openly as Morgenthau. Few prosecutors have ever sought death sentences in the United States. Moreover, there are other aggressive prosecutors around the country who couldn’t be faulted for not trying. Harry Connick. Sr., in New Orleans Parish, was famous for seeking the death penalty whenever possible, but his office mostly failed to convince juries to impose the death penalty, even during the 1990s. The prosecutors who frequently obtained death sentences were always a minority, even in the heyday of the American death penalty. If prosecutors in outlier counties are nearly alone in keeping the sputtering machinery of death running, and if Morgenthau is right that public safety does not benefit from rare and costly death sentences, then the death penalty has no legs left to stand on.
Defragmenting Criminal Justice
The splintering of the death penalty may contribute to its undoing under the U.S. Constitution since it makes the death penalty more and more “unusual” under the Cruel and Unusual Punishments Clause of the Eighth Amendment. This has not escaped the notice of judges and lawyers. In 2014, Supreme Court Justice Stephen Breyer emphasized that the death penalty has “increasingly become unusual,” having “declined rapidly” in the preceding fifteen years. Justice Breyer noted “dramatic declines” within states like Texas and Virginia: “Geography also plays an important role in determining who is sentenced to death. . . . Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sen-
|
The Triumph of Mercy
253
following California’s realignment, and in death penalty cases in which the defense gets an adequate team—then support for the death penalty or for overincarceration vanishes. Public defenders have been in crisis in this country for decades. While the exact percentage is unknown, the Department of Justice estimates that as many as 90 percent of those charged with crimes cannot afford lawyers.38 Public defender offices themselves cannot afford to handle the millions of cases they must take on each year, and far more counties are relying on contracting systems, paying cut rates to whichever lawyers will take the bid to handle cases of poor defendants. Prosecutors are also overwhelmed by the sheer quantities of cases they handle, and although they have evidence from the police about the crime, they have little way of knowing about the background of the individual person they are prosecuting, apart from criminal records and perhaps a presentencing report from a probative officer that briefly interviewed the defendant. On the defense and prosecution side, lawyers mass produce guilty pleas on the cheap. The funds to finance community lawyers and investigators and social services for the poor can come from the billions saved by winding down mass incarceration. Over thirty states are participating in justice-reinvestment initiatives, with federal support.39 Even Harris County, Texas, long the leader in death sentences and executions, has secured support from the MacArthur Foundation to reduce its county jail population and to use alternatives to incarceration.40 As Illinois governor Bruce Rauner put it, we can spend now to save far more money later: “We’ve always taken the short-run decision, what cuts costs now and not what saves significant resources over a longer term. We’ve got to change that mindset.” Still more important, “we can help those who made mistakes lead productive lives and come back as productive, full citizens who are enhancing the quality of life for everyone in all
|
254
End of Its Rope
of our communities.”41 Unwinding mass incarceration can open up the resources to empty our prisons and reduce crime.
Human Rights
“The death penalty has no place in the 21st century,” said Ban Ki-moon, then the Secretary General of the United Nations. The triumph of mercy is a global phenomenon. A majority of the countries in the world have now abolished the death penalty, and even more do not use it in practice.42 More than four out of five countries have abolished or stopped using the death penalty. China, Iran, Iraq, Saudi Arabia, and the United States are at the top of the list of states that execute the most people each year. Indeed, the only countries that have seen executions increase in recent years are Iran, Pakistan, and Saudi Arabia. Saudi Arabia typically beheads individuals and displays bodies in public as a warning. China, Saudi Arabia, and Pakistan sentence people to death for drug crimes, financial crimes, and lesser “crimes” including adultery and blasphemy. For decades, challenges to the death penalty have forced Americans to think carefully about the connections between our own criminal justice practices and those around the world. Ever since Trop v. Dulles, in 1958, when the Supreme Court announced that cruel and unusual punishment should be governed by “evolving standards of decency that mark the progress of a maturing society,” the justices have occasionally looked to punishment practices in other countries. We should not be behind the “civilized nations of the world” but rather should be a model for all nations. In 1977, the justices ruled out the death penalty for rape, noting international consensus among major nations.43 In 2002, in Atkins v. Virginia, the justices noted that “within the world community,” the execution of intellectually disabled offenders is “over-
The Triumph of Mercy
|
255
whelming disapproved.”44 In 2004, in Roper v. Simpson, the justices described as “instructive” the “overwhelming weight of international opinion against the juvenile death penalty.” The United States “now stands alone in a world that has turned its face against the juvenile death penalty.”45 Even Supreme Court Justice Sandra Day O’Connor, who disagreed with the result in that case, agreed that it was appropriate to rely on international practices, since our “evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”46 Others strongly disagree. Justice Antonin Scalia maintained that international human rights and practices are not relevant, and we need not try to “conform” American law to the “views of foreigners.”47 A new moral awakening has made killing the death penalty feasible for the first time in decades, and the same forces are working their way around the world. Just as the death penalty is in decline and concentrated within the United States, fewer countries across the world have the death penalty or use it in practice. The trend, sometimes despite popular opinion, is unmistakable. The countries that are doubling down on executions are largely authoritarian regimes. We should not remain in their company. What would it mean to rethink punishment as part of an international community, with common values and concern for fundamental human rights? Since the death penalty is seen as so out of touch with fundamental human rights, rejecting the death penalty definitively in America would mean we would no longer “stand alone,” or stand with the likes of Iraq and Saudi Arabia in our punishment practices. Joining the broad set of nations that have abolished the death penalty could help us be part of that worldwide conversation rather than standing to the side as an outlier. After the fall of the death penalty, the United States can reclaim its role as the standard-bearer for fair criminal justice.
Murder Insurance
|
165
for a few local prosecutors’ overcharging and overcrowding the state prisons. If counties had to pay to play, they would not do it. In the past, counties did not have to pay for death sentences. They sentenced on the cheap using short trials, and the costs were pushed farther down the road, to the appeals and habeas proceedings that the entire state paid for and that typically resulted in reversals. Now that counties shoulder more of the expense for death penalty cases up front, since trials must be more carefully conducted, the counties that used to be gung ho no longer seek death sentences. The team approach exemplified by Jack Stoffregen’s office in rural Texas suggests another way to save money and get better results. Adequate legal representation requires heavy lifting by nonlawyer social workers and investigators, who, incidentally, are much less expensive than lawyers. It takes a team to provide social services help: to investigate the facts and the social history of each client. Statewide public defender offices can ensure equal and fair access to justice if they are adequately funded. Statewide resources and “strike forces” could be created for mitigation evidence but also for other types of evidence. North Carolina has a public defender to give advice to criminal lawyers around the state on scientific issues beyond the expertise of most criminal lawyers.70 We can also get smart on prosecution. Some states, for example New Jersey, have attorney generals that supervise all prosecutors and law enforcement in the state. These states have not done away with local control of policing and prosecution functions, but they do have mechanisms to make sure that justice is done through a “uniform and efficient enforcement of the criminal law,” as the New Jersey statute puts it, “throughout the State.”71 Law professor John Pfaff has detailed how during the 1990s and early 2000s, even as crime fell, there was a rise in the numbers of prosecutors nationwide, from 20,000 to over 30,000.72 We do not need as many today.
|
The Triumph of Mercy
257
So, as Bruck explained, this was not just a death-sentencing proceeding, but Jesus himself was being put on the spot:
And the people that had asked him that question wanted him—they thought they had him pegged. You see, they thought that Jesus was—I guess nowadays we would call it a bleeding heart liberal—somebody who doesn’t have any concern for the rights of society but only cares about the poor criminal. They thought they knew . . . that he would say something like, well, I know it says that in the Bible, but that’s really a kind of a steep punishment for adultery. . . . Why don’t you just, you know, do something else, or give her another chance.
If Jesus had said that, that would have been blasphemy, and he could have been sentenced to death. “But that’s not what he said at all.” Instead, as Bruck described it, Jesus appealed to mercy and a higher judgment, without defying the law or disagreeing that the state can hold criminals accountable:
Instead of contradicting what [the] law required, he said this. The first thing he said after they put this trick question to him—the first thing he did, he stooped down and with his finger wrote on the ground as though he heard them not. So they pressed on.
Now Jesus uttered the famous line about blame:
So when they continued asking him, he lifted up himself and said unto them, “[H]e that is without sin among you, let him cast the first stone at her.” . . . And they which heard it, being convicted by their own conscience, went out one by one,
258
|
End of Its Rope
beginning at the eldest, even unto the last, and Jesus was left alone and the woman standing in the midst.48
Those jurors unanimously chose mercy for Smith, in 1995, when it was far less common for jurors to choose life over death. Today, jurors, as well as prosecutors and victims, increasingly choose life over death. “The only honest justification for the death penalty is vengeance, but the Lord says, ‘Vengeance is mine,’ ” New York County district attorney Robert Morgenthau famously said. “It is wrong for secular governments to try to usurp that role.”49 What would it mean to choose mercy more broadly, and not just in death penalty cases, where we are confronted with the worst of the worst murderers? The waning of the death penalty provides a special opportunity to rethink the morality and the accuracy of the entire criminal justice system. Now is the time to seize on it. A criminal justice reform roadmap emerges from the fall of the death penalty. The same flaws in lawyering and evidence that afflict death penalty cases also afflict the vast bulk of criminal cases in which the death penalty is never sought. The same tools that are bringing about the death penalty’s demise are much needed across our country. There are also special dangers that the end game poses. Pushing punishment down to life without parole, or using other blunt mandatory punishments, may make the system less harsh, but doing so cannot avoid the inherent challenge of making punishments fit crimes. Instead, we need to better understand the people who commit crimes as individuals and humans. If you told someone in the 1990s that the death penalty would largely disappear from American life in twenty years, the person would have called you delusional. When the Supreme Court abolished the death penalty in 1972, as criminal justice professor Evan
|
The Triumph of Mercy
259
Mandery put it, it seemed as improbable as when men landed on the moon in 1969.50 An end to the death penalty seemed even more unlikely at the height of death sentencing in the 1990s, when mass incarceration and fear of crime drove tough-on-crime policies across the country. Now we have almost reached the moon together. We have learned a sobering lesson about how to break a cycle of excess punishment. Criminal justice is not something out of our control, dependent on the whims of judges, or purely a matter of public opinion or politics. The demise of the death penalty is no accident but rather the result of hard work and difficult decisions made by countless people. As a society, we became more merciful. We have learned how to better consider each other as individuals—even the drug addicts, even the petty criminals, and even the murderers. If we provide the tools, the death penalty will end. Those same tools that have all but driven the death penalty into the ground should be harnessed to more broadly restore criminal justice in this country. We should provide statewide resources for defense lawyers to rely on the kinds of teams used in some death penalty cases. A social worker should screen a person facing criminal charges for mental illness. An investigator should carefully review the facts of a case and a person’s social history. Every police department should carefully document and videotape evidence to prevent mistakes. Every person should have a chance to benefit from rehabilitation before we subject them to punishment. Every sentence should take into account the full life story of the person being convicted of a crime. The amazing story of the American death penalty decline can teach us how to rebuild our criminal justice system—and how to avoid making the same mistakes that turned the ultimate punishment into a national disgrace. During a short span of a few
260
|
End of Its Rope
decades, we created our largest death rows and reached record mass incarceration. In an equally short time period, though, the death penalty faded back into the shadows. Now we can end the death penalty. With the death penalty at the end of its rope, we can revive criminal justice in America. It is time for a new beginning.
Appendix Notes
Acknowl edgments Index
The Other Death Penalty
|
169
110 100 90 80 70 60 50 40 30 20 10 0 2000
2005
2010
LWOP Sentences
2015
Death Sentences
Figure 7.1 Death and LWOP sentences in Texas, 1996–2016. Source: The Sentencing Project; data collected by author.
parole sentences. In 2012, there were ten death sentences and 105 LWOP sentences. LWOP exploded in Texas in the years following its adoption. Opponents who worried that people not eligible for the death penalty would receive LWOP were right. What they got wrong was how some would end up embracing what they had previously opposed. Consider the fact that in the law’s first few years, the Harris County district attorney sentenced over one hundred people to LWOP, or one-quarter of all those who received it in the entire state of Texas.4 As Figure 7.1 illustrates, the state’s population on “life row” has exploded, while the numbers on death row continue to decline. The rise in LWOP sentences has been stunning. Data on such sentences are notoriously difficult to reliably come by, but Dr. Ashley Nellis of the Sentencing Project shared detailed data
APPENDIX
I began this project wondering why the death penalty was declining so rapidly in the United States and what we could learn from this remarkable trend. I quickly discovered that key data one would need to answer those questions were missing. I wanted to better understand death sentencing at the national, state, and local levels. There was no list of who has been sentenced to death and in which counties over the past few decades. The Bureau of Justice Statistics at the Department of Justice collects aggregate numbers of people sentenced to death in each state and in each year, which is invaluable, but those data do not identify particular people sentenced to death or county-level information. The NAACP Legal Defense and Education Fund publishes several times a year detailed reports of who is on death row, based on lists drawn from state corrections departments. Those reports do not include county-level information or the dates of the death sentences themselves. Since there were not adequate data that would allow one to study county-level patterns during the crucial time period during which death sentencing began its decline, I collected the data with the help of a remarkable team of students. Rob Smith, who encouraged me to take on this project, had collected data from 2004 to 2014, which he kindly shared with me. James Liebman, Jeff Fagan, Valerie West, and colleagues, who coauthored the Broken System
264
|
Appendix
studies of death sentencing from 1973 through the early 1990s, made their data publicly available. I list in the acknowledgements a long roster of lawyers, capital offices, and scholars who generously shared data concerning death sentences in particular states. Their contributions were invaluable to ensure that these data were as complete and as accurate as possible. I began this work by starting small. Before collecting data from thousands of death penalty cases, I studied in depth the entire transcripts of dozens of capital trials in several states. I assembled a collection of Virginia death penalty trials—every single one since 2005—and a large collection from the 1990s, before the death penalty decline began. In this case study, I observed how death sentences dramatically declined in Virginia once defense offices for capital trials were created in 2004. Once those lawyers began their work, the defense won more than they lost at trial, and the sentencing phase doubled in length and in complexity. In Chapter 2, I describe how I studied trial materials for every DNA exoneration case involving a death sentence—twenty trials in all. I also read capital trials from North Carolina, Texas, and other states. I watched trials that were televised, for example the Aurora trial in Colorado, as well as trials in North Carolina, described in Chapter 3. Chapters 4 and 5 in this book describe how statistical analysis found a strong effect of adopting statewide capital defender offices, an inconsistent effect of murder states, and a weak effect of other changes like adoption of life without parole or switching from judge to jury sentencing. Law student Ankur Desai took the lead on statistical analysis regarding that question, and he has written a wonderful paper describing the results. One of the questions he examined was whether there is a defense-lawyering effect on state-level death sentencing. Table A.1 shows the main results of his modeling.1
170
|
End of Its Rope
from the Texas Department of Corrections describing who is now sentenced to LWOP in Texas. Texas now has a “life row” vastly larger than its death row ever was, with almost 800 people serving LWOP and about 9,000 people serving a life sentence with parole.5 The Texas life row can include individuals who are not eligible for the death penalty. It initially included juveniles at the time they committed the offense, twenty-eight of whom received LWOP sentences from 2005 to 2013, but Texas then eliminated mandatory life sentences for juveniles in response to Supreme Court decisions, making parole possible after forty years. Texas life row can also include intellectually disabled individuals as well as some individuals who did not commit murder but rather sexual assault against a child. In 2015–2016, LWOP sentences declined in Texas, which hopefully indicates a new direction in handing out such harsh sentences. Other states followed the same pattern, with LWOP surging as death sentences gradually declined. To be sure, most states that enacted LWOP did so before Texas did, and as part of tough-oncrime sentencing measures in the 1980s and 1990s, not as part of any debate about whether to maintain the death penalty. Others adopted LWOP in response to the Supreme Court striking down death-sentencing statutes from 1972 to 1976, seeking to adopt a “whole life” alternative to the death penalty. In other death penalty states, LWOP sentences have similarly increased. In Ohio, prosecutors seek the death penalty far less often; as recently as 2010, they charged capital murder in a hundred cases a year, but it is now down to fewer than twenty cases a year. One Ohio prosecutor, whose office seeks capital murder in a fraction of the cases it used to, and who created a special group to decide which cases are worth pursuing as death penalty cases, commented, “In every case, I have to ask, ‘Are we going to survive this?’ We have to take a case to a judge and jury and then face 25 years of appeals. Is it
266
|
Appendix
Chapter 6 turns to county-level analysis of death sentencing. I was fortunate to work with Alexander Jakubow on statistical analysis of these data. If you are interested in reading more detailed explanations of the findings, these data and the statistical models are described in a law review article.3 A large team of law and undergraduate students at the University of Virginia helped to hand collect data on death sentencing. All the underlying county-level data on death sentencing, from 1991–2016, have been made available online for anyone interested in examining those patterns.4 We also tracked resentences or new sentencing trials when a person was again sentenced to death.5 Ideally, one would also have data not just on all murders, but also on how many of those murders were eligible for the death penalty. Then one would know how many death-eligible murders eventually receive death sentences. Those data are very hard to come by, although impressive state-level studies have examined which murders in a state could have been eligible for the death penalty. Most cases settle through guilty pleas and without a trial, so there may not be good publicly available information about the facts of the crime that can tell one whether it was a murder that was potentially death eligible. Another obstacle is that in many states the criteria for what counts as death eligible are themselves unclear. Some states make future dangerousness a criterion for eligibility, or whether the murder was “heinous, atrocious, or cruel.” As a result, despite the real limitations of doing so, we focused only on murder rates and death sentences imposed. We modeled death sentences as a function of four primary independent variables: (1) homicide rates, (2) race, (3) population density, and (4) income. First, we examined homicide rates from 1990 to 2014. The two most commonly used sources for homicide data—the Centers for Disease Control and Prevention (CDC) mortality data from the
Appendix
|
267
National Vital Statistics System,6 and the FBI Supplemental Hom icide Reports (SHR)—pose various tradeoffs. Mortality data in the CDC are derived primarily from hospital records, while the FBI data use reports and other data filed with local police precincts. The CDC data are more inclusive; there are deaths never reported to local law enforcement but recorded by health care authorities as required by state laws in order to produce a death certificate.7 Some worry that the CDC data are overinclusive, since in the context of death sentencing, homicides documented by police may be more likely to result in arrests, prosecutions, and then possible death sentences.8 We were also unable to obtain CDC data with detailed county-level information for any years before 1990. While both data sources provide basic demographic information about the victims, the FBI provides information about the offenders and murder-clearance rates.9 We focused on the FBI data, but for robustness we used estimates from both data sources. In addition, since it can take more than a year for a murder to result in a trial and a sentence, we examined the lagged effect of homicides on death sentences. Second, we examined the effect of a county’s racial composition on sentencing behavior. Data on the proportion of a county’s population that is black or African American were obtained from the U.S. Census Bureau. A racial fragmentation measure was also used to estimate racial demography within each county. This alternative measure reports the probability that two randomly selected individuals belong to different racial groups. We found that the racial fragmentation variable displayed similar results as the share of black population. For that reason, and for space reasons, we did not include both measures in the same model. Third, we examined population density of each county in a death-sentencing state, measured as the number of persons per square mile. It is common in the literature to use a measure of
268
|
Appendix
density or urbanization. Densely populated areas tend to have dif ferent patterns of social interaction, political values, and labor markets than rural areas. Population density is also a good proxy for total population.10 Fourth, we analyzed income per capita in each county. It is expensive to seek the death penalty, so this variable might capture whether local criminal justice systems can afford to seek the death penalty. Income per capita also works as a crude “catchall” for other important sociodemographic data—such as political attitudes (wealthier individuals tend to vote more conservatively) and education levels (wealthier individuals tend to have more years of formal education)—that could exert influence over the other variables. We would ideally study variables for education, partisanship, and other factors that could be correlated with income and death penalty sentencing, but data availability prevented us doing so. Death sentencing is an extremely rare event. Over 90 percent of counties in each year in the time period from 1990 to 2016 had no death sentences. For the statistical analysis, we used a mixed-effects negative binomial regression model, which is frequently used to model overdispersed, nonnegative count outcomes like these data on death sentences.11 Table A.2 presents negative binomial regression results using homicide data respectively calculated from the FBI Supplemental Homicide Reports and the CDC. The number of death sentences in each county-year is modeled as a function of the homicide rate, percentage of the population that is black, population density, and income per capita. The models also included random effects for each county and fixed-effect dummies for state and year. State-specific time dummies (e.g., Virginia 1990) were used in the last two models reported in the table. The coefficients in these tables are presented in the form of factor changes. Coefficients with values less than one indicate an expected decrease in the number of death sentences, while coefficients with values
|
The Other Death Penalty
173
eral prisoners are serving life without parole, accounting for 2.5 percent of federal prisoners. These sentences are not just in murder cases, but are most common in drug-trafficking cases, and also in firearms, extortion, and racketeering cases. The U.S. Sentencing Commission has explained that many of those cases involved very large quantities of drugs. The Commission also noted that far more of the prisoners sentenced to life imprisonment were minorities. Some serve mandatory life sentences based on mandatory minimum sentences for certain crimes, including for thirdtime federal drug offenses. Far more federal prisoners, about 6,500 of them, have sentences so long that absent a pardon, it guarantees they will spend the rest of their lives in prison. Many of these people were involved in serious criminal organizations, and most had serious criminal records, but most did not themselves commit murders.11 Should we really be sentencing so many thousands of people to life sentences? These lengthy sentences have a disproportionate impact on our prison populations. To reduce mass incarceration, it is important to focus on lengthy prison sentences. After all, one person serving a ten-year sentence occupies the same amount of prison space as ten people serving one-year sentences. Moreover, due to life sentencing and other lengthy sentencing, our prisoners are generally aging. According to the federal Bureau of Justice Statistics, the number of persons fifty-five years or older sentenced to more than one year in prison surged 400 percent between 1993 and 2013, to over 130,000. These elderly prisoners have greatly increased burdens on medical care, and states have only begun to adopt meaningful programs for early release of geriatric patients or “compassionate release” of dying prisoners.12 The U.S. Supreme Court considered whether life without parole is constitutional under the Eighth Amendment or is in fact cruel and unusual punishment. It has struck down automatic
27 0
|
Appendix
evidence that counties with proportionally greater black populations and high population densities sentence more individuals to death. The effect of race is highly significant in all models, as is the effect of density. Death sentencing is more likely in counties that, on average, contain proportionally more black residents, as well as when a given county’s own population becomes increasingly black over time. We also found that county-level homicide rates were correlated with county death sentencing. What these data mean is that, for example, a one-unit increase in the log of the black share of a county’s population increases the expected number of death sentences within counties by an average factor of 1.4 and between counties by an average factor of 1.1. Similarly, a one-unit increase in the log of a county’s population density increases the expected death sentence count by an average factor of 6.4 within counties and a factor of 2.2 between counties. In both cases, the within-county effects are larger than the between effects. This suggests that sentencing behavior is more sensitive to variations over time in a county’s own underlying demographics than between counties on average. How about the murder-rates data? The within and between effects of the homicide rates significantly and positively correlate with death sentencing across all the models we used. However, the magnitude of the within effects is substantively small. A one-unit increase in the logged homicide rate only increases the expected number of death sentences within counties by an average factor of 1.10, or 10 percent. That was a statistically significant but weak effect. By contrast, an equivalent increase translates to an average factor increase of 1.53, or 53 percent, in the number of expected death sentences between counties on average. These results held under three sets of robustness checks. First, the models were reestimated using Poisson regression to account
|
Appendix
271
for the lack of consensus in the literature regarding the suitability of the negative binomial distribution for modeling hierarchical, longitudinal count outcomes. Second, the models were reestimated using the original scales of the variables to ensure that any distributional artifacts from taking logs did not drive the results reported. Finally, we disaggregated regression results by five-year periods, beginning with 1990–1994. We also disaggregated the regressions by year. We found that the strength and significance of these findings erodes in recent years, starting in 2008. The effect of homicides may have become much less relevant in the last decade or so. Or it may also be that numbers of death sentences are so small that it is hard to observe the relevant connections. We plan to explore those results further in future work. It may typically take a year or more for a capital murder case to result in a death sentence at a trial. We reestimated the regressions using a one-year lag of the total homicide rates using FBI and CDC data. The within effect of an increase in the lagged hom icide rate increased the expected number of death sentences by an average factor of 1.27, or 27 percent. We found similar correlations with death sentencing within a given county over time and between counties over time, although the within-effects results are particularly strengthened by the lagging. Table A.3 displays these results. We also used a three-year moving average of homicide rates and observed similar results. The lagged homicide findings relate to additional analysis of inertia within counties over time. We suspected that previous sentencing behavior casts a shadow over current sentencing decisions. A prosecutor’s office may have initial policy preferences and resources that may predispose it to achieve early successes in seeking and obtaining the death penalty. Once an office assembles a staff that wins a capital trial, it draws upon this
|
27 2
Appendix
Table A.3
State & Year Fixed Effects
State-Year Fixed Effects
Homi cide Data, One-Year Lag, Negative Binomial Regressions
FBI Data
CDC Data
FBI Data
CDC Data
1.234***
1.283***
1.300***
1.282***
(0.029)
(0.035)
(0.034)
(0.035)
1.349**
1.338**
1.318**
1.311**
(0.153)
(0.153)
(0.163)
(0.163)
4.629***
4.885***
7.826***
8.830***
(1.495)
(1.614)
(2.705)
(3.124)
1.382
1.412
0.745
0.744
(0.599)
(0.600)
(0.354)
(0.359)
1.519***
1.507***
1.550***
1.529***
(0.138)
(0.127)
(0.142)
(0.129)
1.120**
1.119**
1.115**
1.118**
(0.042)
(0.042)
(0.041)
(0.041)
2.204***
2.170***
2.212***
2.191***
(0.088)
(0.090)
(0.086)
(0.088)
1.023
1.160
1.012
1.133
(0.240)
(0.283)
(0.233)
(0.272) 62,794
Within Effects
Homicide rate at t−1
Percent black pop.
Population density
Income per capita
Between Effects
Homicide rate at t−1
Percent black pop.
Population density
Income per capita
62,800
62,794
62,800
State fixed effects
Yes
Yes
No
No
Year fixed effects
Yes
Yes
No
No
Observations
No
No
Yes
Yes
Yes
Yes
Yes
Yes
State-Year fixed effects Model converged
Source: Adapted from Garrett, Jakubow, and Desai, “The American Death Penalty Decline.”
Regression coefficients expressed as factor changes.
County-clustered robust standard errors in parentheses. +
p