capital punishment case study

Capital Punishment

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54 Capital Punishment Cases

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Ministering to the condemned: a case study (from facing the death penalty, p 112-122, 1989, michael l radelet, ed. -- see ncj-118827), additional details.

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    In evaluating the data . . . the reader should bear in mind that the vast majority of homicides in the United States, like most violent crimes, are investigated exclusively by local police officers working hand-in-hand with local prosecutors, who file charges against defendants in state courts, either as a capital case or non-capital case. When a homicide is prosecuted federally - either as a capital or non-capital case - it is often because of the availability of certain federal laws or because of a federal initiative to address a particular crime problem. Criminal organizations often operate in multiple jurisdictions, making it difficult for any single local prosecutor to investigate or prosecute a case. Additionally, many states lack the equivalent of the federal witness protection program and the ability to conduct complex long-term investigations using resource intensive investigative techniques such as court-ordered wiretaps and undercover operations.     Apart from these differences in laws and resources, which often affect whether a particular homicide is prosecuted in state or federal court - either as a capital or non-capital case - state and federal law enforcement officials often work cooperatively to maximize their overall ability to prevent and prosecute violent criminal activity in their respective communities. Such cooperation is a central feature of current federal law enforcement policy. In some areas, these cooperative efforts lead to agreements that certain kinds of offenses, particularly violent crimes, will be handled by federal authorities . . . . In some cities, a large number of cases involving multiple murders by drug and other criminal organizations are investigated by joint federal and local task forces and prosecuted federally due to some of the factors cited above, such as the geographic reach of the organization and the availability of a witness protection program.

• The District of Maryland charged capital crimes and submitted to the Department's review procedure cases involving 41 defendants, of whom 36 were Black. However, it recommended the death penalty for only five of the 36, a proportion of 14%. This is below the national proportion of 25% for recommendations by U.S. Attorneys that the death penalty be sought for Black defendants in submitted cases.
• The Eastern District of New York submitted cases involving 58 defendants to the review procedure, of whom 19 were White, 20 were Black, 12 were Hispanic, and 7 were in the "Other" category. It only recommended the death penalty for one of the Black defendants, and for none of the Hispanic defendants.
• The Southern District of New York submitted cases involving 50 defendants to the review procedure, involving 4 White defendants, 17 Black defendants, 28 Hispanic defendants, and 1 "Other" defendant. This was a considerably higher proportion of Hispanic defendants than the national norm - but the district recommended the death penalty for none of them. The district recommended the death penalty for 5 of the 17 Black defendants, a proportion of 29%, which differed little from the national norm of 25%.

Capital Punishment

Definition of capital punishment, what is capital punishment meaning, public perception of the death penalty, history of capital punishment, capital punishment examples, capital crime, debate over capital punishment, capital punishment in the states, capital punishment statistics, capital punishment example involving a teenager, supreme court, related legal terms and issues.

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The research on capital punishment: Recent scholarship and unresolved questions

2014 review of research on capital punishment, including studies that attempt to quantify rates of innocence and the potential deterrence effect on crime.

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by Alexandra Raphel and John Wihbey, The Journalist's Resource January 5, 2015

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Over the past year the death penalty has again come into focus as a major public policy and political issue, catalyzed by several high-profile events.

The botched execution of convicted murderer and rapist Clayton Lockett in Oklahoma in 2014 was seen as a potential turning point in the debate, bringing increased attention to the mechanisms by which persons are executed. That was followed by a number of other closely scrutinized cases, and the year ended with few executions relative to years past. On December 31, 2014, Maryland Gov. Martin O’Malley commuted the sentences of the remaining four prisoners on death row in that state. In 2013, Maryland became the 18th state to abolish the death penalty after Connecticut in 2012 and New Mexico in 2009.

Meanwhile, polling data suggests some softening of public attitudes, though the majority Americans continue to support capital punishment. Gallop noted in October 2014 that the level of public support (60%) is at its lowest in 40 years. A Washington Post -ABC News poll in mid-2014 found that more Americans support life sentences, rather than the death penalty, for convicted murderers. Further, recent polls from the Pew Research Center indicate that only a bare majority of Americans now support capital punishment, 55%, down from 78% in 1996.

Scholarly research sheds light on a number of important aspects of this issue:

False convictions

One key reason for the contentious debate is the concern that states are executing innocent people. How many people are unjustly facing the death penalty? By definition, it is difficult to obtain a reliable answer to this question. Presumably if judges, juries, and law enforcement were always able to conclusively determine who was innocent, those defendants would simply not be convicted in the first place. When capital punishment is the sentence, however, this issue takes on new importance.

Some believe that when it comes to death-penalty cases, this is not a huge cause for concern. In his concurrent opinion in the 2006 Supreme Court case Kansas v. Marsh , Justice Antonin Scalia suggested that the execution error rate was minimal, around 0.027%. However, a 2014 study in the Proceedings of the National Academy of Sciences suggests that the figure could be higher. Authors Samuel Gross (University of Michigan Law School), Barbara O’Brien (Michigan State University College of Law), Chen Hu (American College of Radiology) and Edward H. Kennedy (University of Pennsylvania School of Medicine) examine data from the Bureau of Justice Statistics and the Department of Justice relating to exonerations from 1973 to 2004 in an attempt to estimate the rate of false convictions among death row defendants. (Determining innocence with full certainty is an obvious challenge, so as a proxy they use exoneration — “an official determination that a convicted defendant is no longer legally culpable for the crime.”) In short, the researchers ask: If all death row prisoners were to remain under this sentence indefinitely, how many of them would have eventually been found innocent (exonerated)?

Interestingly, the authors also note that advances in DNA identification technology are unlikely to have a large impact on false conviction rates because DNA evidence is most often used in cases of rape rather than homicide. To date, only about 13% of death row exonerations were the result of DNA testing. The Innocence Project , a litigation and public policy organization founded in 1992, has been deeply involved in many such cases.

Death penalty deterrence effects: What do we know?

A chief way proponents of capital punishment defend the practice is the idea that the death penalty deters other people from committing future crimes. For example, research conducted by John J. Donohue III (Yale Law School) and Justin Wolfers (University of Pennsylvania) applies economic theory to the issue: If people act as rational maximizers of their profits or well-being, perhaps there is reason to believe that the most severe of punishments would serve as a deterrent. (The findings of their 2009 study on this issue, “Estimating the Impact of the Death Penalty on Murder,” are inconclusive.) In contrast, one could also imagine a scenario in which capital punishment leads to an increased homicide rate because of a broader perception that the state devalues human life. It could also be possible that the death penalty has no effect at all because information about executions is not diffused in a way that influences future behavior.

In 1978 — two years after the Supreme Court issued its decision reversing a previous ban on the death penalty ( Gregg v. Georgia ) — the National Research Council (NRC) published a comprehensive review of the current research on capital punishment to determine whether one of these hypotheses was more empirically supported than the others. The NRC concluded that “available studies provide no useful evidence on the deterrent effect of capital punishment.”

Researchers have subsequently used a number of methods in an effort to get closer to an accurate estimate of the deterrence effect of the death penalty. Many of the studies have reached conflicting conclusions, however. To conduct an updated review, the NRC formed the Committee on Deterrence and the Death Penalty, comprised of academics from economics departments and public policy schools from institutions around the country, including the Carnegie Mellon University, University of Chicago and Duke University.

In 2012, the Committee published an updated report that concluded that not much had changed in recent decades: “Research conducted in the 30 years since the earlier NRC report has not sufficiently advanced knowledge to allow a conclusion, however qualified, about the effect of the death penalty on homicide rates.” The report goes on to recommend that none of the reviewed reports be used to influence public policy decisions on the death penalty.

Why has the research not been able to provide any definitive answers about the impact of the death penalty? One general challenge is that when it comes to capital punishment, a counter-factual policy is simply not observable. You cannot simultaneously execute and not execute defendants, making it difficult to isolate the impact of the death penalty. The Committee also highlights a number of key flaws in the research designs:

• There are both capital and non-capital punishment options for people charged with serious crimes. So, the relevant question on the deterrent effect of capital punishment specifically “is the differential deterrent effect of execution in comparison with the deterrent effect of other available or commonly used penalties.” None of the studies reviewed by the Committee took into account these severe, but noncapital punishments, which could also have an effect on future behaviors and could confound the estimated deterrence effect of capital punishment.
• “They use incomplete or implausible models of potential murderers’ perceptions of and response to the capital punishment component of a sanction regime”
• “The existing studies use strong and unverifiable assumptions to identify the effects of capital punishment on homicides.”

In a 2012 study, “Deterrence and the Dealth Penalty: Partial Identificaiton Analysis Using Repeated Cross Sections,” authors Charles F. Manski (Northwestern University) and John V. Pepper (University of Virginia) focus on the third challenge. They note: “Data alone cannot reveal what the homicide rate in a state without (with) a death penalty would have been had the state (not) adopted a death penalty statute. Here, as always when analyzing treatment response, data must be combined with assumptions to enable inference on counterfactual outcomes.”

However, even though the authors do not arrive at a definitive conclusion, the National Research Council Committee notes that this type of research holds some value: “Rather than imposing the strong but unsupported assumptions required to identify the effect of capital punishment on homicides in a single model or an ad hoc set of similar models, approaches that explicitly account for model uncertainty may provide a constructive way for research to provide credible albeit incomplete answers.”

Another strategy researchers have taken is to limit the focus of studies on potential short-term effects of the death penalty. In a 2009 paper, “The Short-Term Effects of Executions on Homicides: Deterrence, Displacement, or Both?” authors Kenneth C. Land and Hui Zheng of Duke University, along with Raymond Teske Jr. of Sam Houston State University, examine monthly execution data (1980-2005) from Texas, “a state that has used the death penalty with sufficient frequency to make possible relatively stable estimates of the homicide response to executions.” They conclude that “evidence exists of modest, short-term reductions in the numbers of homicides in Texas in the months of or after executions.” Depending on which model they use, these deterrent effects range from 1.6 to 2.5 homicides.

The NRC’s Committee on Deterrence and the Death Penalty commented on the findings, explaining: “Land, Teske and Zheng (2009) should be commended for distinguishing between periods in Texas when the use of capital punishment appears to have been erratic and when it appears to have been systematic. But they fail to integrate this distinction into a coherently delineated behavioral model that incorporates sanctions regimes, salience, and deterrence. And, as explained above, their claims of evidence of deterrence in the systematic regime are flawed.”

A more recent paper (2012) from the three authors, “The Differential Short-Term Impacts of Executions on Felony and Non-Felony Homicides,” addresses some of these concerns. Published in Criminology and Public Policy , the paper reviews and updates some of their earlier findings by exploring “what information can be gained by disaggregating the homicide data into those homicides committed in the course of another felony crime, which are subject to capital punishment, and those committed otherwise.” The results produce a number of different findings and models, including that “the short-lived deterrence effect of executions is concentrated among non-felony-type homicides.”

Other factors to consider

The question of what kinds of “mitigating” factors should prevent the criminal justice system from moving forward with an execution remains hotly disputed. A 2014 paper published in the Hastings Law Journal , “The Failure of Mitigation?” by scholars at the University of North Carolina and DePaul University, investigates recent executions of persons with possible mental or intellectual disabilities. The authors reviewed 100 cases and conclude that the “overwhelming majority of executed offenders suffered from intellectual impairments, were barely into adulthood, wrestled with severe mental illness, or endured profound childhood trauma.”

Two significant recommendations for reforming the existing process also are supported by some academic research. A 2010 study by Pepperdine University School of Law published in Temple Law Review , “Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions,” surveyed the decision-making process among various state prosecutors. At the request of a state commission, the authors first surveyed California district attorneys; they also examined data from the other 36 states that have the death penalty. The authors found that prosecutors’ capital punishment filing decisions remain marked by local “idiosyncrasies,” meaning that “the very types of unfairness that the Supreme Court sought to eliminate” beginning in 1972 may still “infect capital cases.” They encourage “requiring prosecutors to adhere to an established set of guidelines.” Finally, there has been growing support for taping interrogations of suspects in capital cases, so as to guard against the phenomenon of false confessions .

Related reading: For an international perspective on capital punishment, see Amnesty International’s 2013 report ; for more information on the evolution of U.S. public opinion on the death penalty, see historical trends from Gallup .

Keywords: crime, prisons, death penalty, capital punishment

About the Authors

Alexandra Raphel

John Wihbey

State Studies

The following list is a sample of recent state studies focusing on issues of the death penalty.

• The Death Penalty in Alabama: Judge Override (2011) — Study by the Equal Justice Initiative in Alabama exposing the practice of state judges imposing death sentences by overriding a jury’s recommendation for life.
• Alabama Death Penalty Assessment (2006) — Study by the American Bar Association’s Death Penalty Moratorium Implementation Project found that Alabama’s death penalty failed to meet fundamental ABA standards of fairness and accuracy.
• Broken Justice: The Death Penalty in Alabama (2005) — Study by the American Civil Liberties Union (ACLU), showing how structural and procedural flaws in Alabama’s criminal justice system stack the deck against fair trials and appropriate sentencing for those facing the death penalty.
• Racial Sentencing Patterns in Arkansas (2008) — A study by University of Iowa law professor David Baldus of the death penalty in Arkansas showing racial patterns in sentencing.
• Arizona Death Penalty Assessment (2006) — Study by the American Bar Association’s (ABA) Death Penalty Moratorium Implementation Project determining that Arizona’s capital punishment laws are plagued with serious problems.
• California Cost Study 2011 — DPIC summary of “A roadmap to mend or end the California legislature’s multi-billion dollar death penalty debacle” from Loyola of Los Angeles Law Review by Judge Arthur L. Alarcon & Paula M. Mitchell.
• California’s Death Penalty is Dead (2011) — Study by the ACLU of Northern California catalogs numerous intractable problems and waning public support which may lead to the end of capital punishment in the state.
• Death in Decline ‘09 (2009) — A study by the ACLU of Northern California revealing that only three counties (Los Angeles, Orange, and Riverside) accounted for 83% of the state’s death sentences in 2009.
• The Hidden Death Tax (2009) — A study by the ACLU of Northern California on the costs of the death penalty found additional expenses due to a net increase in the size of death row.
• Death by Geography (2008) — A study by the ACLU of Northern California examining the variation among California counties in seeking the death penalty.
• The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999 (2005) — A study by G. Pierce & M. Radelet published in the Santa Clara Law Review finding that the race of the victim in the underlying murder greatly affected whether a defendant would be sentenced to death.
• Colorado Capital Punishment: An Empirical Study (2013) — Conducted by law professors Justin Marceau and Sam Kamin of the University of Denver and Wanda Foglia of Rowan University found that the death penalty in Colorado is applied so rarely as to render the system unconstitutional. The authors concluded that Colorado’s death penalty law is applicable to almost all first-degree murders, but is imposed so infrequently that it fails to provide the kind of careful narrowing of cases required by the Supreme Court in Furman v. Georgia (1972). In this groundbreaking study, the researchers reviewed all first-degree murder cases in the state between 1999 and 2010. They found that 92 percent of the 544 first-degree murder cases in that time span contained at least one aggravating factor that made the defendant eligible for the death penalty. However, prosecutors filed notices of intent to seek the death penalty in only 15 murder cases and pursued the death penalty at trial in only five of those cases — a 1% rate among death-eligible cases. The authors wrote, “Under the Colorado capital sentencing system, many defendants are eligible but almost none are actually sentenced to death. Because Colorado’s aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment.”

Connecticut

• Arbitrariness in Death Cases (2011) — Study by Professor John Donohue of Yale University’s School of Law of death sentences in Connecticut finding that seeking the death penalty often correlated with the race of the victim and the defendant, and not necessarily with the severity of the crimes.
• The Delaware Death Penalty: An Empirical Study (2012) — A five-year study of the operation of Delaware’s death penalty by Cornell law school.
• The Death Penalty in Florida (2009) — An evaluation of Florida’s death penalty by Christopher Slobogin, Professor of Law and Psychiatry at Vanderbilt University.
• Florida Death Penalty Assessment (2006) — Study by the American Bar Association of Florida’s death penalty system.
• A Matter of Life and Death (2007) — Study by the Atlanta Journal-Constitution of Georgia’s use of the death penalty finding that “getting the death penalty in Georgia is as predictable as a lightning strike.”
• Georgia Eyewitness Identification Procedures (2007) — Study by the Georgia Innocence Project revealing that 83% of Georgia police agencies have no written rules on handling eyewitness identifications.
• Georgia Death Penalty Assessment Report (2006) — Study by the American Bar Association Death Penalty Moratorium Implementation Project found that Georgia’s death penalty fails to meet 43 ABA standards for improving the fairness and accuracy of the death penalty.
• Thirty Years Analysis of Death Penalty Cases in Georgia (2005) — Study by the Georgia Public Defender Standards Council analyzing death penalty cases in the state from 1973 - 2003.
• Illinois Capital Reform Study Committee Final Report (2010) — Sixth and final report of the committee created by the state legislature in 2003 and headed by Thomas P. Sullivan, a former U.S. Attorney.
• Illinois Commission on Capital Punishment (2005) — Study by the Commission, aiming to address problems Illinois Governor George Ryan identified two years prior, including potential safeguards to prevent the possible conviction and execution of innocent inmates.
• Indiana Death Penalty Cost Study (2010) — A state analysis of the costs of the death penalty in Indiana finding the average cost to a county for a trial and direct appeal in a capital case to be over ten times more than a life-without-parole case.
• Indiana Death Penalty Assessment (2007) — Study by the American Bar Association calling for a halt to executions in the state because of concerns about the arbitrariness of the state’s death penalty.
• Kansas Judicial Council Death Penalty Advisory Committee Report (2014) — Study by the committee examining the state’s application of capital punishment and the hefty price tag of seeking the death penalty.
• Kansas Cost Study (2003) — Study by the Kansas government detailing the disparity in cost between death penalty cases and non-death penalty cases in Kansas.
• Kentucky Assessment on the Death Penalty (2011) — ABA study analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of capital punishment in Kentucky.
• Diminishing All of Us: The Death Penalty in Louisiana (2012) — A recent study published by the Jesuit Social Research Institute of Loyola University pointed to numerous problems with Louisiana’s death penalty.
• Death Sentencing in East Baton Rouge Parish, 1990-2008 (2011) — A study conducted by Professors Glenn Pierce and Michael Radelet published in the Lousiana Law Review showing that the odds of a death sentence in parts of Louisiana were 2.6 times higher for those charged with killing a white victim than for those charged with killing a black victim.
• Maryland Commission on Capital Punishment Report (2008) — Study by the legislative commission established to examine the death penalty in Maryland recommending abolition of the punishment.
• Maryland Cost Study (2008) — Study by the Urban Institute detailing the disparity in cost between death penalty cases and non-death penalty cases in Maryland.
• Missouri Death Penalty Assessment (2012) — Study by the American Bar Association’s (ABA) Death Penalty Moratorium Implementation Project determining that Missouri’s capital punishment laws are plagued with serious problems.
• Missouri Death Penalty and Geography (2008) — Study by Prof. David Sloss of the St. Louis University School of Law showing that the chance of a death sentence appears to rest on what part of the state the crime was committed in.
• Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri (2008) — A study by Katherine Barnes of Arizona University Law School, and David Sloss and Stephen Thaman of St. Louis Univeristy Law School, studying 1046 cases of intentional homicide in Missouri to determine geographical and racial effects in the rates at which prosecutors seek the death penalty.
• Nevada Cost Study 2012 — A study by Dr. Terance Miethe of the Department of Criminal Justice at the University of Nevada on the costs of the death penalty in Nevada.

New Hampshire

• Majority Report of the Commission to Study the Death Penalty in New Hampshire (2010) — A study by a New Hampshire commission evaluating the use of the death penalty within the state.
• The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis (2008) — A study by attorney Marcia Wilson revealing information on how the death penalty was applied in New Mexico after its reinstatement.

North Carolina

• Race Discrimination in Jury Selection and Non-Enforcement of Batson in North Carolina (2016) — A study by appellate lawyers Daniel R. Pollitt and Brittany P. Warren found that, despite pervasive evidence that North Carolina prosecutors disproportionately employed peremptory strikes to exclude black jurors, the state’s courts have persistently refused to enforce the constitutional prohibition against race-based jury strikes. In 114 cases in which Batson issues were decided on the merits, North Carolina appeals courts never found any substantive Batson violation where a prosecutor had articulated a reason for the peremptory challenge of a minority juror. In the 74 cases in which it had decided Batson claims on the merits, the Supreme Court of North Carolina had never once found a substantive Batson violation.
• The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies (2011) — A comprehensive review of studies on the death penalty by Matthew Robinson, Professor of Government and Justice Studies at Appalachian State University.
• Excessive Sentencing in North Carolina (2010) — A study by Professor Frank Baumgartner showed that most of those originally condemned to death in North Carolina eventually received lesser sentences when their cases were concluded.
• Racial Bias Study (2010) — A study by Professors Michael Radelet and Glenn Pierce found that the odds of a defendant receiving a death sentence in North Carolina were three times higher if the person was convicted of killing a white person than if he had killed a black person.
• Potential Savings from Abolition of the Death Penalty in North Carolina (2009) — A study published by a Duke University economist revealing that North Carolina could save $11 million annually if it dropped the death penalty.
• The High Cost of the Death Penalty (2009) — A study by the Independent Weekly showing that North Carolina conservatively spent at least $36 million dollars by seeking the death penalty instead of life in prison without parole over a seven year span.
• Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach (2007) — Study by the Charlotte School of Law revealing that obstacles entrenched within the criminal justice system impede efforts to identify those with severe mental illness and treat them fairly.
• Death Row Injustices (2006) — Study by the Common Sense Foundation of North Carolina finding that at least 37 people on death row had trial lawyers who would not have met minimum standards of qualification at the time of the study.
• Race and the Death Penalty in North Carolina An Empirical Analysis: 1993-1997 (2001) — A study by Professor Jack Boger and presented by The Common Sense Foundation North Carolina Council of Churches.
• Require higher standards for proving guilt if a death sentence is sought (such as DNA evidence)
• Bar the death penalty for those who suffer from “serious mental illness”
• Lessen the number of crimes eligible for the death penalty
• Create a Death Penalty Charging Committee at the Attorney General’s Office to approve capital prosecutions
• Adopt a Racial Justice Act to facilitate inequality claims in Ohio courts.
• Ohio Death Penalty Assessment Report (2007) — Study by the American Bar Association stating that Ohio’s capital punishment system is so flawed that it should be suspended while the state conducts a thorough review of its fairness and accuracy.
• AP Ohio Study (2005) — Study by the Associated Press of 1,936 indictments reported to the Ohio Supreme Court by Ohio counties with capital cases from October 1981 through 2002 finding that capital punishment has been applied in an uneven and often arbitrary fashion.
• Fair Punishment Project (2016) — Analysis of case records, media reports, and opinions of Oregon legal experts by Harvard University’s Fair Punishment Project ofinding that two-thirds of the 35 people on Oregon’s death row have serious mental illness or intellectual impairment, experienced severe childhood trauma, or were under age 21 at the time of the offense.
• Oregon’s Death Penalty: A Cost Analysis (2016) — Study by Lewis & Clark Law School Prof. Aliza B. Kaplan, Seattle University criminal justice Prof. Peter Collins, and Lewis & Clark law candidate Venetia L. Mayhew examined the costs of hundreds of aggravated murder and murder cases in Oregon finding that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those of a murder case that results in a sentence of life imprisonment or a term of years, and that, excluding state prison costs, cases that result in death sentences may be three to four times more expensive.

Pennsylvania

• In Life and Death, Costly Mistakes (2011) — Study by the Philadelphia Inquirer of death penalty appeals in Pennsylvania spanning three decades, finding a pattern of ineffective assistance by defense attorneys.
• Report of the Advisory Committee on Wrongful Convictions (2011) — A study by the Pennsylvania Advisory Committee on Wrongful Convictions identifying the most common causes of wrongful convictions and any current laws and procedures implicated in each type of causation.
• Facts about Pennsylvania’s Death Penalty (2009) — Study by the Associated Press showing the state goes through the expensive and time-consuming process of trying many death penalty cases and fighting appeals, but almost all cases end with a life sentence.
• Pennsylvania Death Penalty Assessment Report (2007) — Study by the American Bar Association (ABA) showing that flaws in Pennsylvania’s death penalty system are so pervasive that the state risks executing an innocent person.
• Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System (1999) — Study by the Committee, making a series of 23 recommendations to the Pennsylvania Supreme Court, to the Legislature, to the state’s Attorney General and District Attorneys, and to Governor Ed Rendell.

South Carolina

• Removal of African Americans and Women in Jury Selection in South Carolina Capital Cases, 1977-2012 (2016) — Study by Professor Ann M. Eisenberg of the University of South Carolina of jury selection in 35 South Carolina homicide cases between 1997 and 2012 that resulted in death sentences, reviewing the strikes or acceptance of more than 3,000 venire members for gender and more than 1,000 veniremenbers for race. The study found that prosecutors exercised their peremptory strikes at nearly triple the rate against African-American prospective jurors than against white prospective jurors and that the death-qualification process further impeded a substantial number of African-American jurors from serving, contributing to an overrepresentation of whites on death penalty juries. The gender study showed that, while men and women were excused for cause at comparable rates, both were struck more for views against the death the death penalty than for pro-death penalty views and women were 3.8 times more likely to be excluded for opposing the death penalty than for pro-death penalty views. Women were 1.4 times more likely to be struck for cause for opposing the death penalty than men and men were 2.3 times more likely to be struck than women for being unable to consider a life sentence. Prosecutors were 1.4 times more likely to peremptorily strike a woman than a man, and defense lawyers were 1.4 times more likely to peremptorily strike a man than a woman.
• The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolina (2006) — Study of homicide cases in South Carolina by Professor Isaac Unah of the University of North Carolina-Chapel Hill and attorney Michael Songer finding that prosecutors were more likely to seek the death penalty when the victim in the underlying murder was white, if the victim was female, and when the crime occurred in a rural area of the state.
• Tennessee’s Death Penalty Lottery (2018) — An examination of every first-degree murder case in Tennessee from 1977-2017 found that the facts of the crime did not predict whether a death sentence would be imposed. Rather, the best indicators were arbitrary factors such as where the murder occurred, the race of the defendant, the quality of the defense, and the views of the prosecutors and judges assigned to the case.
• Tennessee Legislative Study Committee Recommendations (2009) — A 16-month analysis of the state’s capital punishment process by the committee with recommendations for achieving a more fair and accurate system
• Tennessee Death Penalty Assessment (2007) — Study by the ABA detailing racial and geographic disparities in capital cases, poorly trained defense attorneys, heavy caseloads for those representing defedants, and inadequate procedures to address innocence claims.
• Texas Death Penalty Assessment Report (2013) — Study by the ABA focusing on the fairness and accuracy of the death penalty system in Texas.
• Regulating Death in the Lone Star State (2011) — A study by the ACLU of Texas and Northwestern University’s Center for International Human Rights revealing that procedures for euthanizing animals in the state are more carefully regulated than the protocol for executing death row inmates.
• What’s Messing with Texas Death Sentences? (2011) — A study analyzing the decline of death sentencing in Texas by David McCord.
• Convicting the Innocent: Texas Justice Derailed (2009) — A study by The Justice Project analyzing the cases of 39 innocent Texans who collectively spent more than 500 years in prison for crimes they did not commit.
• Too Much Cruelty, Too Little Clemency (2009) — A study by Amnesty International examining many of the nearly 200 executions that have occurred during Governor Rick Perry’s term in office.
• Legal Disparities in the Capital of Capital Punishment (2009) — A study that reveals disparities in who receives the death penalty in Texas by Scott Phillips, a professor at the Department of Sociology and Criminology at the University of Denver.
• Status Disparities in the Capital of Capital Punishment (2009) — A study by Scott Phillips, a sociology and criminology professor at the University of Denver, published in the Law & Society Review focusing on the imposition of death sentences in relation to the victim’s social status.
• Racial Disparities in the Capital of Capital Punishment (2008) — A study by Prof. Scott Phillips of the University of Denver exploring the relationship of race to death sentencing in Harris County (Houston), Texas.
• A New Look at Race When Death Is Sought (2008) — A study by Professor Scott Phillips of the University of Denver found that black defendants in Houston, Texas, are more likely to be sentenced to death than white defendants, even when other variables are accounted for.
• Eyewitness Identification Procedure in Texas (2008) — A study by the Justice Project concerning criminal justice procedures in Texas.
• Mental Illness and Executions in Texas (2007) — Study conducted by the National Alliance on Mental Illness (NAMI) has revealing that Texas is almost last among states in spending on mental health services and performs poorly in other mental health areas, while executing many inmates with serious mental illness.
• Minimizing Risk, A Blueprint for Death Penalty Reform in Texas (2005) — Study by the Texas Defender Service calling for substantial changes in the way Texas handles capital murder cases.
• A State of Denial: Texas Justice and the Death Penalty (2000) — A study by the Texas Defender Service.
• Virginia Death Penalty Assessment Report (2013) — Study by the ABA focusing on the fairness and accuracy of Virginia’s death penalty system.
• A Vision for Justice (2005) — Study by the Innocence Commission for Virginia of 11 wrongful conviction cases in Virginia finding that mistaken eyewitness identification is the major reason innocent people have been convicted in the state.
• Virginia Crime Lab Audit (2005) — Study by the American Society of Crime Laboratory Directors finding that the Virginia lab’s internal review process was flawed and that labs had botched DNA tests.
• Washington State Bar Report (2006) — Study by the Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar on the state’s death penalty.

Jul 24, 2024

New Study Finds Evidence of Racial Bias in California Death Sentences As Resentencings Begin in Cases Tainted by Discriminatory Jury Selection

As Alameda County District Attorney Pamela Price seeks to rem­e­dy her office’s his­to­ry of dis­crim­i­na­to­ry jury selec­tion, an study pub­lished in the 2024 Journal of Empirical Legal Studies by Catherine M. Grosso, Jeffrey Fagan, and Michael Laurence finds empir­i­cal evi­dence that the race of the defen­dant and the race of the vic­tim affect the like­li­hood of a death sen­tence being imposed in…

Feb 16, 2024

Black History Month Profile Series: Jennifer Eberhardt

This month, DPIC cel­e­brates Black History Month with week­ly pro­files of notable Black Americans whose work affect­ed the mod­ern death penal­ty era. The sec­ond in the series is Professor Jennifer…

Feb 28, 2023

NEW RESOURCES : Interactive Display Illustrates Conditions on Death Row

A joint research project begun by two Texas uni­ver­si­ties illus­trates the con­fine­ment con­di­tions of death-row pris­on­ers, includ­ing areas such as vis­i­ta­tion, health care, attor­ney vis­its, recre­ation, food, and oppor­tu­ni­ties for work. The Capital Punishment &  Social Rights Research Initiative has cre­at­ed an ini­tial info­graph­ic describ­ing the con­di­tions in…

Sep 30, 2022

Report: Black People 7 . 5 Times More Likely to Be Wrongfully Convicted of Murder than Whites, Risk Even Greater if Victim was White

Black peo­ple are about 7 ½ times more like­ly to be wrong­ful­ly con­vict­ed of mur­der in the U.S. than are whites, and about 80 % more like­ly to be inno­cent than oth­ers con­vict­ed of mur­der, accord­ing to a new report by the National Registry of Exonerations . The already dis­pro­por­tion­ate risk of wrong­ful con­vic­tion, the Registry found, was even worse if the mur­der vic­tim in a case was…

Sep 23, 2022

North Carolina ACLU Challenges Death Qualification of Jurors as Racially and Sexually Discriminatory

Lawyers for a  North Carolina cap­i­tal defen­dant have filed a sweep­ing chal­lenge to the method by which death-penal­ty jurors are empan­eled, argu­ing that the com­bi­na­tion of a process known as ​ “ death qual­i­fi­ca­tion” and dis­cre­tionary jury strikes pro­duces a jury so racial­ly and sex­u­al­ly unrep­re­sen­ta­tive that it vio­lates a defendant’s right to a fair…

Sep 12, 2022

As the Lone Star State Conducts 400 th White-Victim Execution, Study Shows Black Lives Matter Less in Texas Capital Cases

A new study of the Texas death penal­ty, released as the state was con­duct­ing its 400 th mod­ern-era exe­cu­tion in a case involv­ing a white vic­tim, has doc­u­ment­ed over­whelm­ing racial dis­par­i­ties in the Lone Star state’s cap­i­tal punishment…

Aug 29, 2022

Report: Racial Disparities in Death Sentences Imposed on Late Adolescent Offenders Have Grown Since Supreme Court Ruling Banning Juvenile Death Penalty

Racial dis­par­i­ties in U.S. death sen­tences imposed on late ado­les­cent offend­ers have grown sub­stan­tial­ly since the U.S. Supreme Court struck down the use of cap­i­tal pun­ish­ment against juve­nile offend­ers in 2005 , accord­ing to a new report by University of North Carolina polit­i­cal sci­en­tist Frank R. Baumgartner …

Jul 20, 2022

New DPIC Podcast: The Death Penalty Census

Data from fifty years of the mod­ern U.S. death penal­ty reveal ​ “ a sys­tem that is rife with error, filled with dis­crim­i­na­tion, [and] very, very dif­fi­cult to fair­ly admin­is­ter,” Death Penalty Information Center Executive Director Robert Dunham says in the July episode the Discussions with DPIC pod­cast. The episode, a dis­cus­sion between Dunham and 2021  –  2022 DPIC Data Fellow Aimee Breaux about the launch of DPIC ’s ground­break­ing Death Penalty Census data­base, was released July  20 ,…

Apr 04, 2022

New DPIC Podcast: Prof. Meredith Rountree on What Influences Death Penalty Jurors’ Moral Decision Making

In the March 2022 episode of Discussions With DPIC , Northwestern Pritzker School of Law Senior Lecturer Meredith Rountree speaks with Death Penalty Information Center Executive Director Robert Dunham about her study of the types of evi­dence that influ­ence juror deci­sion-mak­ing at the sen­tenc­ing stage of capital…

Jan 13, 2022

New Study: Kentucky Death Penalty Racially Biased, Arbitrary, Error Prone

Kentucky ​ ’ s death penal­ty is racial­ly dis­crim­i­na­to­ry, geo­graph­i­cal­ly arbi­trary, and rid­dled with sys­temic flaws, a new study of the commonwealth’s use of cap­i­tal pun­ish­ment has…

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Capital punishment: A human right examination case study and jurisprudence

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INTERNATIONAL JOURNAL OF HUMAN RIGHTS AND CONSTITUTIONAL STUDIES

DR. LAKSHMI P R I Y A VINJAMURI

The Universal Declaration of Human Rights laid out the right to life as well as the option to be liberated from brutality, fierce, and corrupt treatment. Thus, the death penalty is opposed because it violates these two fundamental rights. It is the intentional death of a prisoner for the purpose of punishment and as a deterrent-a goal that can easily be achieved through other means in many cases. Regardless of the seriousness of the offence for which the prisoner has been sentenced, such cruelty cannot be condoned. Furthermore, if we believe that Right to life is a fundamental right endorsed in the Constitution as a provision under Article 21 along with the freedom under Article 19, death sentence, an affront to our most basic human right. This research paper examines the death penalty from a human rights jurisprudence standpoint and provides a brief overview of the subject. In addition, the international context of the death penalty is discussed. The decisions which were proven to be arbitrary and unfair in the eyes of human rights law are highlighted to assert the analysis.

International Journal of Multicultural and Multireligious Understanding

nurini aprilianda

Fundamentally, all forms of punishment are deprivation of human rights. One of the most severe punishments in criminal justice system is death penalty which is specifically aimed at serious crime. Several mechanisms as a form of legal protection for death convicts are judicial review and clemency petitions. Problems arise due to the time difference in the waiting period, which is not limited and in some cases even reaching 20 (twenty) years. Meaning, death penalty convicts have experienced two sufferings at once (double suffering) which is certainly contrary to the principle of punishment in the context of modern criminal law. The research aim is to analyse the basis for the philosophy of legal protection for death penalty convicts who are not executed immediately after the verdict becoming legally binding. This research is a normative legal research with the approach of Law, History, Comparison, Philosophy and Cases. The legal materials used are primary, secondary and tertiary with...

Contemporary Issues on Interfaith Law and Society

Muhammad Eko Saputro

The death penalty for convicts is an age-old subject to a lot of criticism from various quarters. The implementation of the death penalty is considered inconsistent with the principles of human rights which are principles of international law where countries cannot refuse because of common alignments, namely the right to life. The punishment of m ati raises pros and cons in Indonesian society, some agree with this punishment because the death penalty intends to protect the public interest and not a few oppose it, they argue that the death penalty is contrary to human rights principles. This fact encourages the author to examine the implementation of the death penalty based on human rights and Islamic law, this is because the majority of Indonesians are adherents of the Islamic religion and also because the implementation of the death penalty is still carried out in Indonesia in certain crime cases. To examine this conflict, the author uses a normative juridical method with the conc...

Boaz Amoro Nyakeri

Julie Tassou

Kiyoung Kim

The abolition of death penalty is one commonplace issue over global jurisdictions. Nevertheless, it is also true that a surfeit of research has been dealt either in any specific way of legal research or general method of social science. This tends to create a track of practice that they approach the issue in its own national standard of research or discrete logic and narrative. The author proposes an orthodox of legal research by exemplifying the issue of death penalty. By demonstrating a process of legal research in exemplary concerns of death penalty between Korea and US, the article would raise several implications for the future studies; (i) the orthodox of legal research as compared with the quantitative and qualitative methods (ii) key implications of three traditional sources of legal research, i.e., secondary, primary-statute, and primary-court cases (iii) encouragement of comparative social studies between the parallel nations.

Criminal Law Forum

Deborah W Denno

Nishad Patnaik

MARTIN KREMER

Mihail Cernauțan

Arguments for practice of death penalty.

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Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

D. Alicia Hickok , Partner at Drinker Biddle & member of the American Bar Association’s Steering Committee of the Death Penalty Representation Project , & J.J. Williamson , Associate in the Drinker Biddle’s Litigation Group

The word “ethic” is derived from the Greek “ethos,” which itself has taken on multiple meanings. In the traditional Greek, it is used by Aristotle to describe the apparent character of the speaker. The Oxford English Dictionary recognizes that its origin relates to nature or disposition, but instead defines “ethos” as “[t]he characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations” or “the character of an individual as represented by his or her values or beliefs.” [1] Regardless of the definition, it is apparent that ethical behavior is necessarily an individual action and portrayal in relation to a community – although Aristotle’s definition is more susceptible to an absolute source of such “right behavior” or “moral action” than the Oxford English Dictionary’s.

The United States Supreme Court has certainly recognized that current community values are critical to an analysis regarding whether capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. [2] But it has also recognized that an examination of those values must be tempered with respect for the “dignity of man” such that punishment must not be excessive, either through “the unnecessary and wanton infliction of pain” or by being “grossly out of proportion to the severity of the crime.” [3] These “natural law” values correspond in many instances to moral views set forth in ancient and sacred writing. Any analysis of the ethics of capital punishment thus need to echo the Supreme Court’s recognition of the possibility that something that has become “accepted” in society may nonetheless be “immoral.”

The response to an “immoral” but “accepted” practice represents an ethical choice. Indeed, many people have explored the dilemmas that arise when a community – either through its laws or practices – mandates or prohibits a course of action that is fundamentally at odds with what a person recognizes as an ultimate moral code. This is seen in Judeo-Christian scripture at least as early as Daniel 6, when King Darius was beguiled into signing a law that forbade prayer to any but him. Daniel was a slave who had become a trusted advisor to the king. He continued with his duties, but also continued to pray to God at home daily; the legal consequence of which was that Darius was compelled to throw Daniel into a lions’ den (from which, Daniel 6 explains, God delivered him, thus honoring Daniel’s adherence to the conduct dictated by his faith rather than the law created by the king).

In examining the ethics of capital punishment, then, this article will address three questions: Is there an absolute position on the death penalty that renders it immoral in all circumstances? What does the law permit, command, or prohibit? Does the practice accord with these permissions, commands, and prohibitions – and is the perception that it does? The answer to those questions then prompts a fourth: how is a lawyer in today’s legal system to act ethically in a state that authorizes capital punishment?

I. Is Capital Punishment Wrong According to Traditional Moral Measures?

One might perhaps think that the answer to any question of the ethics of capital punishment begins and ends with moral law. To be sure, in Gregg v. Georgia , [4] the Supreme Court recognized that right and wrong can transcends the laws on the books at any given moment. It certainly is the case that for some religious groups, any notion of capital punishment is contrary to fundamental beliefs. But it is equally the case that not all persons within those religious traditions – and not all religions – condemn capital punishment.

It is beyond the scope of this article to explore the full range of religious responses, which range from a conviction that the taking of a life can be compensated for only by another life to a belief that the sacredness of life can never justify condoning of the taking of another’s life, and include everything in between.

A brief overview of a couple of religious perspectives may, however, give a flavor of the moral reasoning undergirding religious responses. Those who favor the death penalty often cite both to the religious admonitions to honor civil law and to the recognition in Exodus 21 that injury is to be recompensed in kind, admonishing Israel to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” [5]

On the other hand, of those who are fundamentally opposed to capital punishment, most believe that taking of the life of another is wrong even for the state to do. In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by – or in some cases replaced with – concerns that the punishment does not achieve its stated goals and is too fraught with uncertainty to be a viable sentence, even if there is a theoretical authority for a state to take a life.

Thus, for example, the Green Country Society of Friends spoke out about Oklahoma’s death penalty statute in 1996 by first recognizing that people “have the need and the right to seek safety and order for themselves and their communities” but rejecting capital punishment as a means to achieve that because (1) it does not respect the Spirit of God that they believe dwells in each person; (2) it “magnifies the tragedy of a lost life by killing again, ignoring the human capacity for change, quenching forever the possibility of redemption and renewed contribution”; (3) because it harms the community by giving violence a “legitimate status as a way to resolve problems”, sanctioning vengeance as an acceptable response to harm, shifting the focus from healing and help to victims, offenders, and affected families and communities, and because it is possible that an innocent person is being executed; (4) because those persons to whom the task of execution is delegated are at “moral and psychological peril to themselves.” [6] In 1999, the United States Conference of Catholic Bishops, observing that it had been opposed to the death penalty for over twenty-five years, stated:

We oppose capital punishment not just for what it does to those guilty of horrible crimes but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.

We are painfully aware of the increased rate of executions in many states. Since the death penalty was reinstituted in 1976, more than 500 executions have taken place, while there have been seventy-four death-row reversals late in the process. Throughout the states, more than 3,500 prisoners await their deaths. These numbers are deeply troubling. The pace of executions is numbing. The discovery of people on death row who are innocent is frightening. [7]

After Timothy McVeigh, a Catholic, was executed in Indiana, John and Lauren McBride authored an article in the Saint Anthony Messenger, a paper in the area, [8] reflecting on the execution and on a commencement address that Sister Helen Prejean gave at St. Mary of the Woods College in 2001. Sister Helen Prejean had said that that the death penalty was imploding because it “has always been unfair,” remarking on the expense, the lack of deterrence, and the irreversible and irremediable character of the penalty. Quoting Matthew 25, the authors of the article contended that when Jesus taught that what was done to the least of his brothers was done to him, and linked that to Sister Helen’s admonition that scripture teaches not to return hate with hate or violence with violence. The author also quoted Archbishop Daniel M. Buechlein of the Indianapolis Archdiocese (which includes Terre Haute), who wrote that the “death penalty ‘feeds a frenzy for revenge… [which] neither liberates the families of victims nor ennobles the victims of crime. Only forgiveness liberates.’” [9] In conclusion, the authors reflected on a movement in churches across the nation to ring their bells whenever an execution takes place, remembering John Donne’s statement that “any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” [10] The author also interviewed others who were not opposed to the death penalty per se but nonetheless expressed concerns that the process needed reform and decried the racial and economic disparities in its application.

These concerns are echoed in Jewish law, which did not proscribe capital punishment, but which did define strict parameters within which it could be applied. The Talmud Sanhedrin, in exchanging views on the Mosaic law from the third to the fifth centuries C.E., stressed the need for procedural protections before a person could be sentenced to death for treason, discussing the scriptural requirement that there be two witnesses. [11] If one witness was disqualified, the evidence of the others was invalid. Witnesses were sequestered and examined and cross-examined, with accusing witnesses permitted to retract testimony but defending witnesses not. Inconsistencies – even as to time or day – disqualified witnesses. These protections were both to “ensure reliability of outcome and to enhance the possibility of acquittal in a capital case.” [12]

A Talmudic brief was submitted as an amicus in Bryan v. Moore . [13] The authors of the brief were addressing only whether electrocution was cruel and unusual. In their analysis, they recognized that from ancient times, rabbis have been divided whether capital punishment could ever be imposed. Even those that sanctioned it required strict standards of proof (before a court of at least 23 judges), and when execution was carried out, the law required a means to be chosen that prevented unnecessary pain and avoided mutilation or dismemberment. Indeed, any in favor point to sacred writings that stress the authority to enforce justice and protect a community but also stress the exceptional nature of the punishment. [14]

These historic and faith-based perspectives, taken together, have led many persons – and an increasing number of states – to conclude that even if it is theoretically possible to have a crime that warrants a sentence of death, the cost (both economically and morally) is too high, the risk of inaccuracy is too great, and the procedural protections are not strict enough.

But many others, including many with deeply-held religious convictions, affirm the decisions of the Supreme Court, Congress, and the legislatures and high courts of many other states that continue to uphold and enforce the death penalty. That said, the law enunciated by the United States Supreme Court has not stagnated over time. Instead, the United States Supreme Court has narrowed the classes of persons who can be subject to the death penalty and has fleshed out the characteristics that need to accompany any capital sentencing scheme in order for it to satisfy the requirements of the United States Constitution.

II. What Does the Law Permit, Command, or Prohibit?

Because statutes ultimately must conform to the Constitution, the starting point for this analysis are the determinations of the United States Supreme Court in holding that capital punishment was not absolutely proscribed by the Constitution. Two days before the bicentennial, on July 2, 1976, the United States Supreme Court issued five opinions, three affirming the constitutionality of state capital sentencing schemes, and two striking down other such schemes as unconstitutional. In Gregg , the Court explained that in an Eighth Amendment analysis of a statute, there is a presumption that a statute is valid, in part because legislative judgment “weighs heavily in ascertaining [contemporary] standards” and to “respond to the will and consequently the moral values of the people.” [15] After tracing the history of capital punishment in this country, the Court found that the “relative infrequency” with which juries imposed capital sentences did not reflect a “rejection of capital punishment per se” but the belief that the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” [16] The Court also recognized both the retributive and deterrent effects of the death penalty. [17]

But while a state has the right to impose the death penalty, it cannot do so arbitrarily or capriciously, and it must ensure that the sentencer’s discretion is guided and informed. [18] In looking at Georgia’s statutory scheme in particular, the Supreme Court observed that the Georgia Supreme Court was required to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” [19] Thus, each instance in which a death sentence is imposed will receive the direct attention of the justices of the state’s Supreme Court, and they will address directly some of the criteria that the United States Supreme Court found needed to be present in a capital sentencing scheme to render it constitutional. [20]

Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case. In the years immediately following Gregg , it was that court’s regular practice to include in its review cases that did not result in a death sentence. The Supreme Court later clarified in Pulley v. Harris that a comparative proportionality review was not demanded for every capital sentence. [21] More recently, however, the Court explained that it had intended only to “convey our recognition of differences among the States’ capital schemes and the fact that we consider statutes as we find them” – not to undermine the Court’s prior conclusions that “such review is an important component of the Georgia scheme.” [22] As shown in the attached chart, it appears that currently there are at least nine states that have no provision for proportionality review in their state statutes.

In Proffitt v. Florida , [23] the sentencing findings of the jury were advisory only; the actual sentence was determined by the trial judge, but “‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. [24] The Supreme Court found that jury sentencing was not constitutionally mandated. [25] Likewise, in Jurek v. Texas , [26] the Court upheld Texas’s capital sentencing scheme, concluding that Texas’s narrowing of death-eligible crimes to a limited category of murders served the same function as aggravating factors did in Georgia and Florida. [27] But the Court was careful to say that it would not be enough to limit the evidence relevant to why a death penalty should be imposed; there must also be consideration of evidence why the death penalty should not be imposed. In other words, a capital sentencing system must: “guide[] and focus[] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” [28] “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” [29] Finally, “[b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” [30]

In contrast, in Woodson v. North Carolina , [31] the Supreme Court rejected the North Carolina statutory scheme, because North Carolina mandated a sentence of death for first-degree murder – in part because the Court construed such statutes as “simply paper[ing] over the problem of unguided and unchecked jury discretion.” [32] The Court explained what it meant to have a jury consider evidence in mitigation:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [33]

Although Louisiana’s statute used “a different and somewhat narrower” definition of death-worthy murder than North Carolina, it was also mandatory, and the Supreme Court found it likewise unconstitutional in Roberts v. Louisiana . [34] In so holding, the Supreme Court reiterated that mandatory sentences simply could not be upheld, because society has “reject[ed] the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’” [35] The Court was also troubled that in order to provide an opportunity to sentence a defendant to less than death, juries were instructed on lesser offenses, regardless of the evidence, which the Court found “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate – a result that contained an unacceptable “element of capriciousness.” [36]

Through a series of opinions, the Supreme Court would later clarify that a jury cannot sentence a defendant to death without being allowed to consider mitigating evidence; indeed, “when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed.” [37] And, of course, a jury cannot consider evidence in mitigation that counsel fails to uncover, apprehend, pursue, and present. Accordingly, counsel cannot competently represent a capital defendant without developing sufficient evidence about his or her background to make a reasonable strategic decision about what evidence to present in mitigation. [38]

Of course, evidence may not be put in front of a jury because it was never produced to the defense. The role of prosecutors to ensure a fair trial predates AEDPA by decades.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. [39]

These principles have given rise to a series of decisions, beginning with Brady v. Maryland , [40] in which the Supreme Court has articulated the constitutional obligation of the prosecution to provide the defense with exculpatory and impeachment evidence. Claims involving the obligations of the attorneys in a case (so-called Strickland (ineffectiveness) or Brady (withholding of evidence)) are the primary claims raised in collateral changes to capital convictions.

In addition, in recent years, certain classes of persons have been determined incapable of being sentenced to death, including persons who are mentally retarded (in Atkins v. Virginia ) [41] and juveniles ( Roper v. Simmons ). [42] In extending the rationale of Atkins to juveniles, the Supreme Court found that there were three characteristics of juveniles that rendered the death penalty inappropriate: (1) the lack of maturity and “underdeveloped sense of responsibility;” (2) a heightened susceptibility to “negative influences and outside pressures;” (3) and a less “well formed” character. [43] The Supreme Court concluded that:

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. [44]

There are also constraints upon the execution [45] and trial of persons who are mentally incompetent, [46] but these constraints have not led to a blanket prohibition against capital sentences for persons with specific mental illnesses – or to a suspension of all proceedings while a person is incompetent. [47]

There is one more factor that has not yet been addressed specifically by the United States Supreme Court but that bears on the reliability of the verdict and the information that is in front of sentencers to consider. There is wide variation in the statutory (or rules) requirements for notice of intent to seek the death penalty by the prosecution, with most states requiring notice at some point after arraignment (typically sixty days or less), but others requiring notice only at a certain point before trial . Indeed, in Alabama, the death penalty may be sought in any case in which a district attorney has charged a defendant with capital murder, with no notice other than the charge itself required. [48] And in New Hampshire, the only requirement is that notice occur before trial or acceptance of a guilty plea. South Carolina and Tennessee require notice only thirty days prior to trial. [49] If a defendant is provided with ample resources to prepare for a capital penalty phase – whether or not it is to occur – notice may not be problematic. But where resources are limited, it appears unreasonable to ask a lawyer – or for that matter, a trial court – to authorize extensive resources to prepare for a case in mitigation that may or may not be a part of the trial. And yet, mitigation preparation – with its requisite investigation and consultation of experts – cannot be authorized and carried out in only a month without seriously undermining the reliability of the information that is placed before the sentencer.

At the moment then, a capital sentence can be upheld by the Supreme Court as constitutional only if there is a trial in which the community can have confidence. That, in turn, requires a competent defendant represented by counsel who has the resources, time, and skill to present a sentencer with evidence in mitigation that informs the sentencer’s decision whether to impose death for the narrow class of the most serious crimes by making a non-arbitrary, non-capricious, guided decision.

The standards that are applied to evaluate the fairness of the capital process are increasingly narrowed, however. On the one hand, state and federal law permit collateral attacks on allegedly unfair processes, through state and federal habeas or other post-conviction relief mechanisms. But on the other hand, such attacks are subject to significantly heightened levels of deference and narrowed bases for challenge, some statutory (such as that imposed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)), and others by the standard recognition that the presumption of the finality of a judgment increases with each level of review. In collateral review, traditional criminal precepts in multiple contexts (including ineffective assistance and non-disclosure of evidence) require a showing of prejudice that is defined, not by “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” [50] This concept is notoriously subjective and uneven in its application, thereby undermining the confidence that is the stated goal.

More fundamentally, the Court has grappled – beginning with Woodson – with the recognition that fair procedures and reliability are more essential in the capital sentencing context than in any other, because death is different in kind, and not merely in degree – indeed “[d]eath in its finality differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” [51] And yet, in a system in which the focus – and expenditures of money – increase disproportionately at the very stages when the standard of review becomes the hardest to satisfy, the public message is that procedures are not fair, sentences of death are not reliable, and verdicts are not worthy of confidence.

III.       What is the Community Practice?

Because the United States Supreme Court has determined that capital punishment is not absolutely proscribed by the Constitution, current practice has largely been placed into the hands of the states, and more specifically the state legislatures, to determine how such a process will function, as well as to define its limits. Eighteen states, as well as the District of Columbia, have chosen to abolish the death penalty outright: Michigan was the first in 1846, and Maryland the most recent in 2013. Most recently, Governor Tom Wolf of Pennsylvania imposed a moratorium on the Commonwealth’s execution of individuals pending a review of a forthcoming report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. [52] The death penalty, then, remains a viable form of punishment for thirty-two states, as well as the federal government and the U.S. military, though the exact contours of the implementation of this ultimate type of punishment varies widely by jurisdiction.

One area in which the states that continue to employ the death penalty differ is in the qualification standards each state has set (or not set) for the lawyers who represent capital-eligible defendants at the trial level. The idea of standards for capital counsel is not new; in fact, suggested qualifications have been published since 1989, when the American Bar Association (“ABA”) published the Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. [53] A little over ten years later, the campaign to implement capital counsel qualifications began anew when, in 2001, the ABA commissioned the Death Penalty Representation Project to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “ABA Guidelines”). [54] The revised ABA Guidelines were subsequently adopted on February 10, 2003 by the ABA House of Delegates, intended to “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” [55] Interestingly, the scope of the ABA Guidelines was purposefully broad, and meant to

apply from the moment the client is taken into custody and extend to all states of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial post-convocation review, clemency, and any connected litigation. [56]

In setting qualifications for capital defense counsel, ABA Guideline 5.1 lists several factors that a state agency establishing such qualifications should consider, including whether counsel has:

• a license to practice in the jurisdiction;
• demonstrated commitment to zealous advocacy and high quality legal representation in the defense of capital cases;
• a completion of suggested training requirements;
• substantial knowledge of relevant federal and state law governing capital cases;
• skill in oral advocacy;
• skill in investigation, preparation, and presentation of evidence bearing on mental status;
• skill in investigation, preparation, and presentation of mitigating evidence;
• skill in the elements of trial advocacy, including jury selection, cross-examination of witness, and opening statements and closing arguments.

The ABA Guidelines also call for such measures as a monitoring of capital counsel’s workload, in order that the lawyer will “provide each client with high quality legal representation in accordance with [the ABA Guidelines].” [57] Additionally, capital counsel is to create a defense team that includes persons such as a mitigation specialist, mental health specialist, and other such specialists or persons as may be needed to bring a high level of legal representation on behalf of the client. [58] The ABA Guidelines do not address, however, how such a high caliber team should be funded, suggesting only that counsel should be compensated “for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court.” [59] While most of the guidelines speak to lawyer behavior, funding does not. In most instances, it is the state that funds capital defense, and it is the responsibility of the electorate to hold legislators accountable for ensuring sufficient funds to attract dedicated counsel and to provide them with sufficient resources to provide a thorough defense.

Since their revision, the ABA Guidelines have received some traction among both state and federal courts. [60] These qualification standards set forth by the ABA, however, are merely suggestions; the adoption of the ABA Guidelines, or the development and implementation of a separate code, is ultimately left to the States. This was emphasized by the Supreme Court in Bobby v. Van Hook , a per curiam decision that highlighted the notion that the ABA Guidelines are “‘only guides’ to what reasonableness [in the context of attorney representation] means, not its definition.” [61] So long as capital counsel make objectively reasonable choices in the course of representation, the “states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented[.]” [62]

As the chart below illustrates, states have implemented capital counsel qualification standards in various degrees. For example, in 2005 Alabama adopted the ABA Guidelines as its code for capital counsel qualifications, noting, however, that the adoption of said Guidelines was “not to be considered a rule or requirement but only a recommendation.” [63] Texas has adopted a set of guidelines very similar to those promulgated by the ABA, which it calls the Guidelines and Standards for Texas Capital Counsel. [64] Like the ABA Guidelines, Texas requires defense teams to include a mitigation specialist and the lawyers on the team must complete a comprehensive training program in death penalty cases. [65]

Several states have taken some aspects of the ABA Guidelines a step further, requiring counsel to meet quantifiable benchmarks before being accepted—whether formally or informally—into the capital counsel bar. Arkansas requires its capital counsel attorneys to have at least three years of criminal defense experience, as well as having served as lead or co-counsel at least five capital trials. [66] Additionally, it also imposes an additional requirement of six hours of continuing legal education in the field of capital defense within the year leading up to the capital case. [67] California requires its capital counsel to have at least ten years of litigation experience in the field of criminal law, including ten serious or violent crime jury trials, at least two of which were for murder. [68] Like Arkansas, a CLE requirement (a requirement common to almost all states with capital counsel qualifications) is imposed, requiring fifteen hours of training in capital defense within the prior two years. [69]

Most states have crafted requirements that fall somewhere in between the Arkansas and California requirements, but not all. Colorado, for example, imposes qualifications upon capital counsel, but only at the post-conviction stage of proceedings. [70] And New Hampshire does not have any policies regarding qualification standards for capital defense counsel – although it is worth noting that New Hampshire has not executed anyone since 1939, despite the death penalty remaining in state law. [71]

Although the qualification standards discussed above pertain primarily to trial counsel, the only federal “stick” that is used to ensure the quality of representation is directed not at trial counsel but at post-conviction counsel. Sections 2261 and 2265 of title 28 of the United States Code (part of the Antiterrorism and Effective Death Penalty Act, “AEDPA”) “provide[] for an expedited review procedure by which state courts are given more deference in the federal habeas review process,” only if certain requirements are satisfied by the states. [72] But both provisions place requirements on the appointment of counsel at the post-conviction stage of the proceedings, i.e ., after a capital punishment sentence has already been imposed by the trial court and affirmed on direct appeal. The deference the state court adjudications receive, then, is based not on the quality of representation when the matter was tried before a finder of fact but the quality of representation in post-conviction collateral attacks – and those state-level collateral attacks are themselves entitled to a deference that a court on direct appeal does not employ.

Two states – Utah and Pennsylvania – do not even fund capital defense at the state level. [73] It is a sobering statistic that Philadelphia’s compensation for court-appointed trial lawyers has been among the lowest of any major metropolitan area in the country – and that of the 100-plus inmates sentenced to death in Pennsylvania since 1978, almost all had their appeals overturned on collateral review. [74] Given the costs associated with post-conviction and habeas appeals, one cannot help but wonder whether the Supreme Court’s requirement of a verdict worthy of confidence needs to be the primary focus of funding for all jurisdictions that choose to maintain the death penalty, and whether, at some point, the Supreme Court will find that a right to a fair trial means that the structure that needs to be in place to ensure a fair trial has to precede trial.

It can thus be argued—as this article does—that the AEDPA statute places its emphasis on the wrong stage of the proceedings – and that creating an incentive to expend large sums of money, employ significant teams of lawyers, and retain multiple experts at the two levels of collateral attack – state and federal – at which the greatest degrees of deference are owed to the state court judgment is not only a poor allocation of resources but a trigger for tension between the bench and bar that ultimately can only harm the interests of the capital defendant.

This tension is a product of an appellate system that, on the one hand, accords deference to the fact-finding of judges and juries – and to the discretion of a trial court to manage the conduct of a trial and the evidence and witnesses that may be considered. That deference extends to the reasonable, strategic decision of a lawyer. On the other hand, habeas counsel and others are required to look at the trial through a prism of standards and scopes of review; even though they see in hindsight defenses that could have been raised, experts that could have been proffered, and mitigation that could have been presented to a jury. As will be seen at greater length below, the more convinced that those not a part of the trial become that capital trials are unfair, the further they push the envelope to force a new trial – and the more entrenched the perspective that all death sentences should be overturned, and the more strident and less respectful the call for that relief, the greater a gulf is placed between the bench and the bar.

The parameters that the United States Supreme Court have articulated for state statutory schemes – trials in which the community can have confidence at which sentencers who are fully apprised of the evidence, including evidence in mitigation, render rational and non-arbitrary sentences – are not advanced by comparing lawyers who are frequently poorly paid and who have to seek court approval for any appointed expert or testing to be measured against what sometimes appears to be unlimited resources and an unlimited appetite for flyspecking a trial in hindsight. It is at least an understandable (and perhaps a natural) reaction to say – as numerous opinions on ineffective assistance do – that the right to effective counsel is not the right to perfect or ideal counsel. [75] Or, as a recent Pennsylvania Supreme Court opinion explained, “a defendant’s competency to stand trial must be evaluated at the time of trial” – and contrary evidence produced in hindsight “overlooks this requirement.” [76]  But although the response of courts is natural, so is the unease reflected in the public’s reaction to a denial of relief in the face of new information by experts and others.

IV. What is the Ethical Response?

In a provocative article, Fred Zacharias and Bruce Green explain that the nineteenth century debate about what defines a lawyer’s ethical role – that of a lawyer’s ethical responsibility being to his or her client and that of a lawyer beholden to his or her own conscience – creates a false dichotomy. [77] Instead, they posit that a coherent ethic is found in Rush v. Cavenaugh , [78] which said, inter alia , that a lawyer “is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.” Thus, they conclude, there is a professional conscience that co-exists with a personal conscience and that together set limits on what a lawyer can do in advocating for a client. [79] In this way, “lawyers’ obligations are distinguished from those of other agents because of their office, which imposes countervailing obligations to the court to which the lawyer owes fidelity.” [80]

On this view, there are obligations of professional conscience that transcend the obligations set forth expressly in rules of professional conduct (those being prohibitions against knowingly participating in illegality or fraud, filing frivolous claims, or failing to be candid with a court). [81] In addressing the unwritten obligations, a lawyer must exercise judgment in determining “the legal and systemic considerations that are familiar to lawyers” and weighing those against the client’s interests and the dictates of personal conscience. [82] The challenge here is that in most instances a person presumes that his moral convictions alone will dictate ethical choices and actions. But the legal profession – and particularly in Green’s and Zacharias’s view – requires one’s morality to inform and be informed by one’s obligations to the court and one’s duties to his or her client. This has significant implications for litigating capital cases, and particularly for collateral proceedings, because the goal cannot be to avoid the carrying out of a death sentence; it must instead be to vindicate a particular individual’s right to a fair trial, developed within the (a) law – either as it exists or as extended in good faith; (b) facts and procedural history of the case; and (c) rules of the court and professional conduct.

In 1982, the Honorable Ruggero Aldisert used the positioning of competence as first in the then-new Model Rules of Professional Conduct to discuss the responsibility a lawyer has “to his client, the courts, and the development of the law” – a responsibility that was greater than that imposed by other jurisdictions. [83] Focusing on appellate lawyers, he stressed that American lawyers need to be cognizant of their responsibility not only to the client “but also to the court in its law-making function.” [84] He then analyzed what in his mind makes an appellate lawyer competent, stating, inter alia , that the first argument in an appellate brief should be the one most likely to persuade the court and that the brief should set forth “only those arguments which have the capacity to persuade” – and he suggested that no brief should exceed five points and preferably should not have more than three. [85] This message of his – that winnowing is essential to a good appeal – is widely held among judges.

But in representing a capital defendant, this view is in tension not only with the requirement of exhaustion but with the uncertainty that a defendant will be able to avail himself or herself of developing jurisprudence without arguing for it. In Teague v. Lane , the United States Supreme Court determined that most new rules of criminal procedure – unless they came within certain narrow exceptions [86] – could not be applied retroactively. In O’Dell v. Netherland , the United States Supreme Court applied Teague to deny relief to a capital defendant, finding that the rule enunciated in Simmons v. South Carolina , 512 U.S. 154 (1994) – that a defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger – was a new rule of criminal procedure and not a watershed one that “implicat[ed] the fundamental fairness and accuracy of the criminal proceeding.” [87] Likewise, in Beard v. Banks , the United States Supreme Court found that the invalidation of capital sentencing schemes that required jurors to disregard mitigation that was not found unanimously was a new rule that did not come within either exception. [88]

The response of a zealous advocate is to argue for good-faith extensions of the law – and to try to anticipate any such changes that might be on the horizon. But doing so is inconsistent with the premise with which Judge Aldisert and others begin – that only the strongest ( i.e ., the most likely to persuade a court) arguments should be in a brief. The ABA as well has said that given the legal climate, a lawyer has a responsibility to raise all arguments potentially available. [89] The resultant long briefs, filled with issues and sub-issues, some only partially developed, has led to frustrations by the bench at the time it takes to review (or ferret out) arguments and address them carefully, and a sense that the briefing and other tactics are placing personal agendas above the ethical obligation to the courts.

In the concurrence of Commonwealth v. Eichinger , for example, a Pennsylvania Supreme Court justice quoted the post-conviction trial court, which had had to reallocate its other cases to senior judges to handle a single post-conviction petition.

A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we are all called upon to promote respect for the law, our profession, and to do public good. …. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. [90]

Another justice, also concurring, expressed his frustration this way:

Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. . . . While an attorney may have an ethical obligation to be a zealous advocate, he has a duty not to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which the client may be granted relief, but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Appellant as PCRA counsel have the duty, like any attorney, to raise and pursue viable claims, and they must do so within the ethical limits which govern all Pennsylvania. [91]

In other words, collateral capital litigation in Pennsylvania and elsewhere demonstrates the divide between those who advocate loyalty to the court and to jurisprudential principles and practices and those who seek to overturn death sentences through whatever procedural or legal means are available or are perceived as potentially available. Those who see the practices as disloyal to the courts also see them as divorced from a lawyer’s loyalty to his client. Those involved adamantly disagree, believing that saving or extending a life is in the best interests of the client.

The ramifications of the dilemma posed by this tension are not merely theoretical, or even philosophical. As the Supreme Court of Pennsylvania explained, its recent movement to strict word limits and other briefing parameters in all appeals was in response to what it perceived as briefing abuses in capital post-conviction briefing in that Court. [92] Similarly, while Pennsylvania has refused to find waiver for claims of incompetency that are raised for the first time in collateral proceedings, the Pennsylvania Supreme Court’s perception that such claims are being abused has led to an increasing number of justices expressing a willingness to overrule the preservation exception. [93] Said differently, what may extend the time that a defendant is alive may come at the cost of credibility and worse, not just for the defendant or petitioner in a given case but for all parties in all criminal – and, often, civil – cases. That is a high price to pay in response to a system that, if it is to work at all, must provide a cost-effective, reliable, non-arbitrary process for determining whether a defendant is death-worthy.

Moreover, when there is a lack of congruence between morality and ethics, those outside the profession question the efficacy of the system itself. Many people decry capital punishment as “too costly” or, at least more costly than life in prison – and empirically, that is true. [94] Some use that costliness as an additional reason that the death penalty should be abolished. Others decry the expense as wasteful and agenda-driven, and call for changes to the system to make it more “efficient.” [95] Part of the reason that the expense is as high as it is is attributable to the resources that are devoted to multiple rounds of review – direct appeal, followed by post-conviction trial court practice and appellate review, followed by federal habeas trial court practice and appellate review – with the potential for seeking a writ of certiorari after each round. And that may be repeated if, for example, claims in federal court are found unexhausted and a defendant is permitted to return to state court to exhaust them. The only way to lessen the costs on the “back end” of state and federal collateral review is to ensure that there are adequate resources at the front end – at the trial that is the focus of the constitutional assurances that a sentence of death can be carried out.

For states that have a death penalty on the books, the statutes and schemes must provide for verdicts in which a community can have confidence. That means that resources – mitigation specialists, mental health and other experts, and well-trained and fairly-compensated lawyers should represent defendants at trial and on direct appeal. Post-conviction proceedings and federal habeas proceedings should not be the primary stage at which the fairness of a trial is litigated. In order for that to happen, there needs to be changes, which in some cases or in some states may be radical ones.

First , as the law changes, it should change for all who were convicted under the old system. When Ring v. Arizona was decided, there were 30 resentencings on remand. [96] Until the bar has confidence that defendants will get the benefit of evolving law, lawyers will be unable to avoid arguing for extensions of the law in any way they perceive applicable to the defendants they represent.

Second , those firms and private donors that are assisting on the “back end” – at federal habeas or in state post-conviction proceedings – should help instead to fund trial-level resources, whether retaining and presenting experts, funding mitigation specialists, or donating funds to help pay for sufficient adequately compensated counsel.

Third , federal deference should be determined by how well a state ensures verdicts worthy of confidence, not by how well it structures post-conviction relief.

This article has explored several inverted incentives that call into question whether the constitutional scheme that the United States Supreme Court envisioned can be achieved – and that at the least shows that it is not there now. As lawyers, the authors of this article adhere strongly to the conviction that a lawyer may exercise zealous advocacy and personal belief only within the confines of our duties to the courts in which we practice – and, as Judge Aldisert suggested – to the law itself. In that spirit, we offer the following thoughts:

At the end of the day – whether because one cannot countenance any taking of life or because one believes that it is not possible to create a system worthy of confidence when it comes to a sentence of death, there will be some who will say that none of this matters: that no matter how a capital sentencing scheme is structured or what protections are in place, it is wrong to execute persons at all. There are two vehicles for the expression of that ethical choice: the legislatures, state and federal, which enact the laws defining or abolishing the death penalty; and the views of the community, which the United States Supreme Court has said is critical to an Eighth Amendment analysis. But for those struggling to respond to capital punishment as lawyers, all three duties of loyalty must be kept in balance: to one’s client, to one’s own conscience; and to the jurisprudential system – both the development of the law and the individual tribunal before which one appears. Daniel prayed before an open window, but he also continued to serve the king.

[1] “ethos.” Oxford English Dictionary. 2014. http://www.oed.com/viewdictionaryentry/Entry/64840 (18 Apr. 2015).

[2] Gregg v. Georgia , 428 U.S. 153, 173 (1976).

[4] Gregg v. Georgia , 428 U.S. at 183-84.

[5] Exodus 21:23-25.

[6] Minute of the Green Country Monthly Meeting of the Religious Society of Friends, on Capital Punishment (May 12, 1996) available at http://www.qis.net/~daruma/cap-pun2.html.

[7] Statement of the Administrative Committee of the United States Conference of Catholic Bishops, on Ending the Death Penalty (Mar. 24, 1999).

[8] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp.

[9] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp .

[11] Sheldon M. Finkelstein, A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin , 43 Litigation 4 (Summer 2010).

[12] Id . at 17.

[13] Bryan v. Moore , 528 U.S. 1133 (2000) (dismissing as improvidently granted a challenge to electrocution because Florida’s law changed in the interim to permit execution by lethal injection).

[14] E.g., Qur’an 6:151 (“Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.”).

[15] Gregg , 428 U.S. at 175-76.

[16] Id. at 181-82.

[18] Gregg , 428 U.S. at 189, 194-95.

[19] Id . at 204.

[21] Pulley v. Harris , 465 U.S. 37 (1984).

[22] Walker v. Georgia , 555 U.S. 979, 983-84 (2008).

[23] Proffitt v. Florida , 428 U.S. 242 (1976).

[24] Id . at 208 (quoting Tedder v. State , 322 So. 2d 908, 910 (Fla. 1975)).

[25] Id . at 252.

[26] Jurek v. Texas , 428 U.S. 262 (1976).

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

[31] Woodson v. North Carolina , 428 U.S. 280 (1976).

[32] Id. at 302.

[33] Id . at 304 (citations omitted).

[34] Roberts v. Louisiana, 428 U.S. 325 (1976).

[35] Id . at 333.

[36] Id . at 335.

[37] Abdul-Kabir v. Quarterman , 550 U.S. 233, 264 (2007).

[38] E.g., Wiggins v. Smith , 539 U.S. 510, 535-36 (2003). The first case to define a constitutional right to counsel as a right to effective counsel is Strickland v. Washington , 466 U.S. 668 (1984).

[39] Berger v. United States , 295 U.S. 78, 88 (1935). See also Mooney v. Holohan , 294 U.S. 103, 112 (1935) (rejecting the Attorney General’s contention that a prosecutor’s obligation extends only to evidence in possession of the defendant).

[40] Brady v. Maryland, 373 U.S. 83 (1963).

[41] Atkins v. Virginia , 536 U.S. 304 (2002).

[42] Roper v. Simmons , 543 U.S. 551 (2005).

[43] Id . at 569.

[44] Id . at 570 (citations and internal quotations omitted).

[45] Ford v. Wainwright , 477 U.S. 399, 401 (1986) (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”).

[46] Drope v. Missouri , 420 U.S. 162, 172 (1975) (recognizing that it violates due process to fail “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”).

[47] E.g ., Ryan v. Gonzales , 133 S. Ct. 696 (2013) (finding no statutory right to a suspension of habeas proceedings during the pendency of petitioner’s incompetence).

[48] Ala. Code § 13A-5-40.

[49] South Carolina Statutes, § 16-3-26; Tennessee Rule of Criminal Procedure 12.3(b)(1) (“When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.”).

[50] Kyles v. Whitley , 514 U.S. 419, 434 (1995) (emphasis added).

[51] Lankford v. Idaho , 500 U.S. 110, 125-26 & nn. 20, 21 (1991).

[52] See Governor Tom Wolf, Memorandum, Death Penalty Moratorium Declaration, available at http://www.pa.gov/Pages/NewsDetails.aspx?agency=PAGovNews&item=16512.

[53] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf .

[54] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf .

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

[58] ABA Guideline 10.4. In 2008, the ABA published the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (the “Supplementary Guidelines”). The objective of the Supplementary Guidelines is to “summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams, in order to ensure high quality representation for all persons facing the possible imposition or execution of a death sentence in any jurisdiction.”

[59] ABA Guideline 9.1.

[60] See, e.g ., Littlejohn v. Trammell , 704 F.3d 817 (10th Cir. 2013); Link v. Luebbers , 830 F. Supp. 2d 729 (E.D. Mo. 2011); State v. Hunder , 960 N.E.2d 95 (Ohio 2011).

[61] Bobby v. Van Hook , 558 U.S. 4, 8 (2009).

[62] Id . at 9.

[63] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[64] Guidelines and Standards for Texas Capital Counsel, State Bar of Texas , 69 Tex. Bar J. 10, 966-982 (Nov. 2006), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/TX_Bar_Association_adopted_version_of_ABA_Guidelines.authcheckdam.pdf .

[66] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[67] Public Defender Commission, State of Arkansas, available at http://www.arkansas.gov/apdc/news/qualifications.html#Cases.

[68] Cal. Rules of Court, R. 4.117.

[70] C.R.S.A. § 16-12-205.

[71] National Center for State Courts, Indigent Defense State Links, available at http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx?cat=Capital%20Case%20Representation#New Hampshire.

[72] Wright v. Angelone , 644 F. Supp. 460, 462 (E.D.Va. 1996) (citing 28 U.S.C. §§ 2261, 2265).

[73] Daniel Silverman, Death Penalty System Broken, Philadelphia Inquirer, Feb. 5, 2015, available at http:/qqq/philly/com/philly/opinion/inquirer/20150105_Death-penatly_system_broker.html.

[75] E.g ., Yarborough v. Gentry , 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)

[76] Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 at *33.

[77] Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev. 1 (November 2005).

[78] Id . at 8, quoting Rush v. Cavenaugh , 2 Pa. 187, 189, 1845 Pa. LEXIS 306 (1845).

[79] In tracing the disappearance of this concept, they observe that Henry S. Drinker, in Legal Ethics at 145 & n.32 (1953) was the last treatise author to cite to Rush – and he did so as support for his conclusion that “[a] lawyer is not bound to give his client a moral lecture. He should advise what the law requires, but should not further any of the client’s unjust schemes, and should refuse to become a party to them.” Id .

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

[83] 11 Cap. U. L. Rev. 446 (1981-82).

[84] Id . at 454.

[85] Teague v. Lane , 489 U.S. 288, 407 (1989).

[86] Teague recognized exceptions for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and “watershed rules of criminal procedure.” O’Dell v. Netherland , 521 U.S. 151, 311 (1997).

[87] O’Dell , 521 U.S. at 167.

[88] Beard v. Banks , 542 U.S. 406 (2004).

[89] See ABA Guideline 10.8 (stating that lawyer has duty to “consider all legal claims potentially available” in addition to “supplementing claims previously made with additional factual or legal information”); see also ABA Guideline 10.15.1 (stating that post-conviction counsel should “seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules”).

[90] 2014 Pa. LEXIS 3558 at *68-69.

[91] Id . at *83-85.

[92] See Commonwealth v. Spotz , 99 A.3d 866, 916 (Pa. 2014) (post-decisional single justice opinion).

[93] While only one justice called for overruling the exception in Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 (Nov. 21, 2014), three did so in Commonwealth v. Blakeney , 2014 Pa. LEXIS 3517 (Pa. Dec. 29, 2014),

[94] See Senator Caroly McGinn, “Death Penalty Too Costly,” The Witchita Eagle , March 1, 2009, available at http://www.deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly; Logan Carver, “Death Penalty Cases More Expensive than Lifetime Imprisonment, But Local CDA Says Cost Never a Consideration,” Lubbock Avalance-Journal, available at http://lubbockonline.com/stories/121309/loc_535156806.shtml .

[95] Arit John, A Botched Lethal Injection Won’t Change Anyone’s Mind About Capital Punishment (posted July 24, 2014), http://www.thewire.com/politics/2014/07/a-botched-lethal-injection-wont-change-anyones-mind-about-capital-punishment/375022 (discussing Chief Judge Alex Kozinski’s argument that to prevent executions from being cruel and unusual, a more efficient form of capital punishment, such as firing squads, should be employed).

[96] 536 U.S. 584 (2002)

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The Death Penalty Deters Crime and Saves Lives

This testimony was delivered on June 27, 2007, before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Committee on the Judiciary of the United States Senate.

My name is David Muhlhausen. I am Senior Policy Analyst in the Center for Data Analysis at The Heritage Foundation. I thank Chairman Russell Feingold, Ranking Member Sam Brownback, and the rest of the subcommittee for the opportunity to testify today. The views I express in this testimony are my own and should not be construed as representing any official position of The Heritage Foundation.

While opponents of capital punishment have been very vocal in their opposition, Gallup opinion polls consistently demonstrate that the American public overwhelmingly supports capital punishment.  [1]  (See Chart 1.) In Gallup's most recent poll, 67 percent of Americans favor the death penalty for those convicted of murder, while only 28 percent are opposed. From 2000 to the most recent poll in 2006, support for capital punishment consistently runs a 2:1 ratio in favor.

Despite strong public support for capital punishment, federal, state, and local officials must continually ensure that its implementation rigorously upholds constitutional protections, such as due process and equal protection of the law. However, the criminal process should not be abused to prevent the lawful imposition of the death penalty in appropriate capital cases.

Alleged Racial Discrimination in Capital Punishment Sentences

As of December 2005, there were 37 prisoners under a sentence of death in the federal system. [2] Of these prisoners, 43.2 percent were white, while 54.1 percent were African-American. The fact that African-Americans are a majority of federal prisoners on death row and a minority in the overall United States population may lead some to conclude that the federal system discriminates against African-Americans. However, there is little rigorous evidence that such disparities exist in the federal system.

Under a competitive grant process, the National Institute of Justice awarded the RAND Corporation a grant to determine whether racial disparities exist in the federal death penalty system. The resulting 2006 RAND study set out to determine what factors, including the defendant's race, victim's race, and crime characteristics, affect the decision to seek a death penalty case. [3]  Three independent teams of researchers were tasked with developing their own methodologies to analyze the data. Only after each team independently drew their own conclusions did they share their findings with each other.

When first looking at the raw data without controlling for case characteristics, RAND found that large race effects with the decision to seek the death penalty are more likely to occur when the defendants are white and when the victims are white. [4]  However, these disparities disappeared in each of the three studies when the heinousness of the crimes was taken into account. [5]  The RAND study concludes that the findings support the view that decisions to seek the death penalty are driven by characteristics of crimes rather than by race. RAND's findings are very compelling because three independent research teams, using the same data but different methodologies, reached the same conclusions.

While there is little evidence that the federal capital punishment system treats minorities unfairly, some may argue that the death penalty systems in certain states may be discriminatory. One such state is Maryland. In May 2001, then-Governor Parris Glendening instituted a moratorium on the use of capital punishment in Maryland in light of concerns that it may be unevenly applied to minorities, especially African-Americans. In 2000, Governor Glendening commissioned University of Maryland Professor of Criminology Ray Paternoster to study the possibility of racial discrimination in the application of the death penalty in Maryland. The results of Professor Paternoster's study found that black defendants who murder white victims are substantially more likely to be charged with a capital crime and sentenced to death. [6]

In 2003, Governor Robert L. Ehrlich wisely lifted the moratorium. His decision was justified. In 2005, a careful review of the study by Professor of Statistics and Sociology Richard Berk of the University of California, Los Angeles, and his coauthors found that the results of Professor Paternoster's study do not stand up to statistical scrutiny. [7]  According to Professor Berk's re-analysis, "For both capital charges and death sentences, race either played no role or a small role that is very difficult to specify. In short, it is very difficult to find convincing evidence for racial effects in the Maryland data and if there are any, they may not be additive." [8]  Further, race may have a small influence because "cases with a black defendant and white victim or 'other' racial combination are  less  likely to have a death sentence." [9]

The Deterrent Effect of the Death Penalty

Federal, state, and local officials need to recognize that the death penalty saves lives. How capital punishment affects murder rates can be explained through general deterrence theory, which supposes that increasing the risk of apprehension and punishment for crime deters individuals from committing crime. Nobel laureate Gary S. Becker's seminal 1968 study of the economics of crime assumed that individuals respond to the costs and benefits of committing crime. [10]

According to deterrence theory, criminals are no different from law-abiding people. Criminals "rationally maximize their own self-interest (utility) subject to constraints (prices, incomes) that they face in the marketplace and elsewhere." [11]  Individuals make their decisions based on the net costs and benefits of each alternative. Thus, deterrence theory provides a basis for analyzing how capital punishment should influence murder rates. Over the years, several studies have demonstrated a link between executions and decreases in murder rates. In fact, studies done in recent years, using sophisticated panel data methods, consistently demonstrate a strong link between executions and reduced murder incidents.

Early Research.  The rigorous examination of the deterrent effect of capital punishment began with research in the 1970s by Isaac Ehrlich, currently a University of Buffalo Distinguished Professor of Economics. [12]  Professor Ehrlich's research found that the death penalty had a strong deterrent effect. While his research was debated by other scholars, [13]  additional research by Professor Ehrlich reconfirmed his original findings. [14]  In addition, research by Professor Stephen K. Layson of the University of North Carolina at Greensboro strongly reconfirmed Ehrlich's previous findings. [15]

Recent Research.  Numerous studies published over the past few years, using panel data sets and sophisticated social science techniques, are demonstrating that the death penalty saves lives. [16] Panel studies observe multiple units over several periods. The addition of multiple data collection points gives the results of capital punishment panel studies substantially more credibility than the results of studies that have only single before-and-after intervention measures. Further, the longitudinal nature of the panel data allows researchers to analyze the impact of the death penalty over time that cross-sectional data sets cannot address.

Using a panel data set of over 3,000 counties from 1977 to 1996, Professors Hashem Dezhbakhsh, Paul R. Rubin, and Joanna M. Shepherd of Emory University found that each execution, on average, results in 18 fewer murders. [17]  Using state-level panel data from 1960 to 2000, Professors Dezhbakhsh and Shepherd were able to compare the relationship between executions and murder incidents before, during, and after the U.S. Supreme Court's death penalty moratorium. [18]  They found that executions had a highly significant negative relationship with murder incidents. Additionally, the implementation of state moratoria is associated with the increased incidence of murders.

Separately, Professor Shepherd's analysis of monthly data from 1977 to 1999 found three important findings. [19]

First,  each execution, on average, is associated with three fewer murders. The deterred murders included both crimes of passion and murders by intimates.

Second,  executions deter the murder of whites and African-Americans. Each execution prevents the murder of one white person, 1.5 African-Americans, and 0.5 persons of other races.

Third,  shorter waits on death row are associated with increased deterrence. For each additional 2.75-year reduction in the death row wait until execution, one murder is deterred.

Professors H. Naci Mocan and R. Kaj Gittings of the University of Colorado at Denver have published two studies confirming the deterrent effect of capital punishment. The first study used state-level data from 1977 to 1997 to analyze the influence of executions, commutations, and removals from death row on the incidence of murder. [20]  For each additional execution, on average, about five murders were deterred. Alternatively, for each additional commutation, on average, five additional murders resulted. A removal from death row by either state courts or the U.S. Supreme Court is associated with an increase of one additional murder. Addressing criticism of their work, [21]  Professors Mocan and Gittings conducted additional analyses and found that their original findings provided robust support for the deterrent effect of capital punishment. [22]

Two studies by Paul R. Zimmerman, a Federal Communications Commission economist, also support the deterrent effect of capital punishment. Using state-level data from 1978 to 1997, Zimmerman found that each additional execution, on average, results in 14 fewer murders. [23] Zimmerman's second study, using similar data, found that executions conducted by electrocution are the most effective at providing deterrence. [24]

Using a small state-level data set from 1995 to 1999, Professor Robert B. Ekelund of Auburn University and his colleagues analyzed the effect that executions have on single incidents of murder and multiple incidents of murder. [25]  They found that executions reduced single murder rates, while there was no effect on multiple murder rates.

In summary, the recent studies using panel data techniques have confirmed what we learned decades ago: Capital punishment does, in fact, save lives. Each additional execution appears to deter between three and 18 murders. While opponents of capital punishment allege that it is unfairly used against African-Americans, each additional execution deters the murder of 1.5 African-Americans. Further moratoria, commuted sentences, and death row removals appear to increase the incidence of murder.

The strength of these findings has caused some legal scholars, originally opposed to the death penalty on moral grounds, to rethink their case. In particular, Professor Cass R. Sunstein of the University of Chicago has commented:

If the recent evidence of deterrence is shown to be correct, then opponents of capital punishment will face an uphill struggle on moral grounds. If each execution is saving lives, the harms of capital punishment would have to be very great to justify its abolition, far greater than most critics have heretofore alleged. [26]

Americans support capital punishment for two good reasons. First, there is little evidence to suggest that minorities are treated unfairly. Second, capital punishment produces a strong deterrent effect that saves lives.

[1]  The Gallup Poll, "Death Penalty," at  http://www.galluppoll.com/content/default.aspx?ci=1606  (June 22, 2007).

[2]  Tracy L. Snell, "Capital Punishment, 2005," Bureau of Justice Statistics  Bulletin , U.S. Department of Justice, Office of Justice Programs, December 2006, NCJ 215083.

[3]  Stephen P. Klein, Richard A. Berk, Laura J. Hickman, eds.,  Race and the Decision to Seek the Death Penalty in Federal Cases  (Santa Monica, CA: RAND Corporation, June 2006).

[5]  Stephen P. Klien, David A. Freedman, and Roger E. Bolus, "A Statistical Analysis of Charging Decisions in Death-Eligible Federal Cases: 1995-2000," pp. 29-56; Richard A. Berk and Yan He, "Race and the Federal Death Penalty," pp. 57-93; and Matthias Schonlau, "Charging Decisions in Death-Eligible Federal Cases (1995-2000): Arbitrariness, Capriciousness, and Regional Variation," pp. 95-124, in Klein, Berk, and Hickman, eds.,  Race and the Decision to Seek the Death Penalty in Federal Cases .

[6]  Raymond Paternoster and Robert Brame,  An Empirical Analysis of Maryland's Death Sentence System with Respect to the Influence of Race and Legal Jurisdiction , Department of Criminology, University of Maryland, 2003.

[7]  Richard Berk, Azusa Li, and Laura J. Hickman, "Statistical Difficulties in Determining the Role of Race in Capital Cases: A Re-analysis of Data from the State of Maryland,"  Journal of Quantitative Criminology , Vol. 21, No. 4 (December, 2005), pp. 365-390.

[8]   Ibid. , p. 386.

[9]   Ibid. , p. 381.

[10]  Gary S. Becker, "Crime and Punishment: An Economic Approach,"  Journal of Political Economy , Vol. 76, No. 2 (1968), pp. 169-217.

[11]  Paul H. Rubin, "The Economics of Crime," in Ralph Andreano and John J. Siefried, eds.,  The Economics of Crime  (New York: John Wiley and Sons, 1980), p. 13. Originally published in  American Economic Review , Vol. 28, No. 4 (1978), pp. 38-43.

[12]  Isaac Ehrlich, "The Deterrent Effect of Capital Punishment: A Question of Life and Death,"  American Economic Review , Vol. 65, No. 3 (1975), pp. 397-417, and Isaac Ehrlich, "Capital Punishment and Deterrence: Some Further Thoughts and Additional Evidence,"  Journal of Political Economy , Vol. 85 (August, 1977), pp. 741-788.

[13]  William J. Bowers and Glenn L. Pierce, "The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment,"  Yale Law Journal , Vol. 85 (1975), pp. 187-208; Stephen A. Hoenak and William C. Weiler, "A Structural Model of Murder Behavior and the Criminal Justice System,"  American Economic Review , Vol. 70, No. 3 (1980), pp. 327-341; Edward Leamer, "Let's Take the Con out of Econometrics,"  American Economic Review , Vol. 73, No. 1 (March 1983), pp. 31-43; and Peter Passell and John Taylor, "The Deterrent Effect of Capital Punishment: Another View,"  American Economic Review , Vol. 67, No. 3 (June 1977), pp. 445-451.

[14]  Isaac Ehrlich, "The Deterrent Effect of Capital Punishment: Reply,"  American Economic Review , Vol. 67, No. 3 (June 1977), pp. 452-458, and Isaac Ehrlich, "Sensitivity Analysis of the Deterrence Hypothesis: Let's Keep the Econ in Econometric,"  Journal of Law and Economics , Vol. 42 (April 1999), pp. 455-487.

[15]  Stephen K. Layson, "Homicide and Deterrence: A Reexamination of the United States Time-Series Evidence,"  Southern Economic Journal , Vol. 52, No. 1 (1985), pp. 68-89.

[16]  The panel data sets used in these recent studies consist of observations of the 50 states or all United States counties over many time periods, usually years and months. Panel data sets allow social scientists to separate the effect of capital punishment from other socioeconomic and policy factors to ascertain the influence of executions on murder incidents.

[17]  Hashem Dezhbakhsh, Paul H. Rubin, and Joanna M. Shepherd, "Does Capital Punishment Have a Deterrent Effect? New Evidence from Postmoratorium Panel Data,"  American Law and Economics Review , Vol. 5, No. 2 (2003), pp. 344-376.

[18]  Hashem Dezhbakhsh and Joanna M. Shepherd, "The Deterrent Effect of Capital Punishment: Evidence from a 'Judicial Experiment,'"  Economic Inquiry , Vol. 44, No. 3 (2006), pp. 512-535.

[19]  Joanna M. Shepherd, "Murders of Passion, Execution Delays, and the Deterrence of Capital Punishment,"  Journal of Legal Studies , Vol. 33 (June 2004), pp. 283-321.

[20] H. Naci Mocan and R. Kaj Gittings, "Getting Off Death Row: Commuted Sentences and the Deterrent Effect of Capital Punishment,"  Journal of Law and Economics , Vol. 46, No. 2 (2003), pp. 453-478.

[21]  John Donahue III and Justin Wolfers, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate,"  Stanford Law Review , Vol. 58, No. 3 (2006), pp. 791-846.

[22]  Naci H. Mocan and R. Kaj Gittings, "The Impact of Incentives on Human Behavior: Can We Make It Disappear? The Case of the Death Penalty," National Bureau of Economic Research  Working Paper  No. 12631, October 2006.

[23]  Paul R. Zimmerman, "State Executions, Deterrence, and the Incidence of Murder,"  Journal of Applied Economics , Vol. 7, No. 1 (May 2004), pp. 163-193.

[24]  Paul R. Zimmerman, "Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000,"  American Journal of Economics and Sociology , Vol. 65, No. 4 (October 2006), pp. 909-941.

[25]  Robert B. Ekelund, Jr., John D. Jackson, Rand W. Ressler, and Robert D. Tollison, "Marginal Deterrence and Multiple Murders,"  Southern Economic Journal , Vol. 72, No. 3 (2006), pp. 521-541.

[26]  Cass R. Sunstein and Adrian Vermeule, "Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," AEI-Brookings Joint Center for Regulatory Studies  Working Paper  No. 05-06, March 2005, p. 42.

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16 Advantages and Disadvantages of the Death Penalty and Capital Punishment

Human civilizations have used the death penalty in their set of laws for over 4,000 years. There have been times when only a few crimes receive this consequence, while some societies, such as the seventh century B.C.’s Code of Athens required the punishment for all crimes to be death.

The death penalty in the United States came about because of the influences of the colonial era. The first recorded execution in the colonies occurred in 1608 in Jamestown. Captain George Kendall was executed for being a spy for Spain. It only took four more years for Virginia to institute the death penalty for minor offenses such as stealing grapes or trading with Native Americans.

Today, capital punishment is reserved for brutal and heinous crimes, such as first-degree murder. Some countries use the death penalty for repetitive violent crime, such as rape and sexual assault, or for specific drug offenses. Here are the pros and cons of the death penalty to review as we head into 2021 and beyond.

List of the Pros of the Death Penalty

1. It is a way to provide justice for victims while keeping the general population safe. There is an expectation in society that you should be able to live your life without the threat of harm. When there is someone who decides to go against this expectation by committing a violent crime, then there must be steps taken to provide everyone else the safety that they deserve. Although arguments can be made for rehabilitation, there are people who would continue their violent tendencies no matter what. The only way to keep people safe in those circumstances, and still provide a sense of justice for the victims, is the use of the death penalty.

2. It provides a deterrent against serious crimes. The reason why there are consequences in place for criminal violations is that we want to have a deterrent effect on specific behaviors. People who are considering a breach of the law must see that the consequences of their actions are worse if they go through without that action compared to following the law.

Although up to 88% of criminologists in the United States report that capital punishment is not an effective deterrent to homicide, the fact that it can prevent some violence does make it a useful tool to have in society.

3. It offers a respectful outcome. A critical component of justice in modern society involves punishing criminal behavior in a way that is not cruel or unusual. That societal expectation has led the United States to implement capital punishment by using lethal injections. Although some regions struggle to purchase the necessary drugs to administer lethal injections, the process of putting someone to sleep before they stop breathing eliminates the pain and negative outcomes associated with other execution methods.

Modern processes in modern societies are much more compassionate compared to the historical methods of hanging, firing squads, or other gruesome methods of taking a life under the law.

4. It maintains prison populations at manageable levels. Over 2 million people are currently part of the prison population in the United States. About one in five people currently in jails across the country are awaiting trial for charges that they face. That is about the same amount of people who are labeled as being violent offenders. By separating those who are convicted of a capital crime, we create more room for individuals who want to work through rehabilitation programs or otherwise improve their lives and live law-abiding futures. This structure makes it possible to limit the financial and spatial impacts which occur when all serious crimes require long-term prisoner care.

5. It offers society an appropriate consequence for violent behavior. There are criminals who have a desire to rehabilitate their lives and create new futures for themselves within the bounds of the law. There are also criminals who desire to continue their criminal behaviors. By keeping capital punishment as an option within society, we create an appropriate consequence that fits the actions taken by the criminal. The death penalty ensures that the individual involved will no longer be able to create havoc for the general population because they are no longer around. That process creates peace for the victims, their families, and society in general.

6. It eliminates sympathetic reactions to someone charged with a capital crime. The United States offers a confrontational system of justice because that is an effective way to address the facts of the case. We make decisions based on logic instead of emotion. The law must be able to address the actions of a criminal in a way that discourages other people from conducting themselves in a similar manner. Our goal should be to address the needs of each victim and their family more than it should be to address the physical needs of the person charged with a capital crime.

7. It stops the threat of an escape that alternative sentences would create. The fastest way to stop a murderer from continuing to kill people is to eliminate their ability to do so. That is what capital punishment does. The death penalty makes it impossible for someone convicted of murder to find ways that kill other people. Failing to execute someone who is taking a life unjustly, who is able to kill someone else, makes us all responsible for that action. Although there are issues from a moral standpoint about taking any life, we must remember that the convicted criminal made the decision to violate the law in the first place, knowing full well what their potential outcome would be.

List of the Cons of the Death Penalty

1. It requires one person to kill another person. In an op-ed published by the New York Times, S. Frank Thompson discussed his experience in executing inmates while serving as the superintendent of the Oregon State Penitentiary. He talked about how the death penalty laws forced him to be personally involved in these executions. He came to a point where, on a moral level, he decided that life either had to be honored or not. His job required him to kill someone else. Whether someone takes a life through criminal means, or they do so through legal means, there still is an impact on that person which is unpredictable.

2. It comes with unclear constitutionality in the United States. In the 1970s, the Supreme Court of the United States found the application of the death penalty unconstitutional, but four years later, allowed the death penalty to resume with certain limitations on when and how it must be carried out. Some justices have called for a review of the death penalty due to current information about the risk of sentencing innocent people to death and other concerns about the death penalty.

After four decades of surveys, studies, and experiences with the death penalty, there are three specific defects that critics state exist. There is unreliability in the systems that are used to put prisoners to death, there are delays that can last for 20 years or more before executing a prisoner, and the application of capital punishment has been called arbitrary.

3. It does not have a positive impact on homicide rates. The United States implemented the death penalty 22 times in 2019, and imposed 34 death sentences. Crime statistics for that year indicate that there were 16,425 reported murders and non-negligent manslaughter cases in the U.S. Some claim that criminals do not think they’ll be caught and convicted, so the death penalty has a limited deterrence effect. Statistics on crimes show that when the death penalty is abolished, and replaced with a guaranteed life in prison, there are fewer violent acts committed.

4. It creates a revenge factor, which may not best serve justice. No one can blame families of victims for wanting justice. There is enough reason because of their pain and loss to understand concepts like vengeance. The problem with the death penalty is that it implements only one form of justice. It can be seen to create the framework for allowing for an eye for an eye, rather than taking a morally higher ground. If we permit the killing of people as a consequence of their own murderous decisions, then do we devalue life itself? It cannot be assumed that something that is legal is necessarily morally correct.

5. It costs more to implement the death penalty. The average case brought to trial which involves the death penalty costs taxpayers $1.26 million (counted through to execution). Cases that are taken to a jury which do not involve capital punishment cost an average of $740,000 (counted through to the end of incarceration). When you compare the costs of maintaining a prisoner in the general population compared to keeping someone on death row, taxpayers save money by avoiding the death penalty.

Maintaining a prisoner on death row costs $90,000 more per year than keeping that person in the general population. When one considers the cost of keeping someone on death row for 20 years or more, it is cheaper to sentence someone to life in prison without the possibility of parole in most states that it is to put them to death.

6. It comes with a risk that an innocent person could be executed. Although we like to think that our criminal justice systems are perfect, it is not. A study by Proceedings of the National Academy of Sciences determined that at least 4% of the people that are on death row are likely to be innocent. Since 1973, over 170 people have been taken off of death row because evidence showed that they were innocent of the crime for which they were convicted.

The justice system has flaws in our justice system. There have been cases where prosecutors knowingly withheld exculpatory information. There have been times when the justice system has introduced false evidence against defendants. People can be coerced into entering a guilty plea, or admitting their guilt, because of external pressures placed on them.

7. It does not always provide the sense of justice that families require. Research published in 2012 by the Marquette Law Review found that the victim’s family experienced higher levels of psychological, physical, and behavioral health when the convicted criminal was sentenced to life in prison, instead of the death penalty. The death penalty might be considered to be the ultimate form of justice, but it does not always provide the satisfaction people think it will once it is administered.

8. It does not seek alternative solutions. About one in every nine people in the U.S. is the population is currently serving a life sentence. Many more are serving a sentence that keeps them in prison for the rest of their lives because it will last for 15 years or more. Violent crime has declined dramatically since it peaked in the early 1990s. According to FBI data, the violent crime rate fell 51% between 1993 and 2018, and using the Bureau of Justice Statistics, it fell 71% during that same period. In 2016, 2,330 prisoners escaped from prison in the U.S.

There are numerous ways to prevent someone from breaking out of prison and hurting someone else, and the decreased number of violent crimes should mean a smaller prison population to work with to seek alternative solutions.

9. It automatically assumes that the criminal cannot be rehabilitated. There will always be people who decide they will live with a disregard for others. These people may never successfully complete a rehabilitation process after committing a crime. Sentencing someone to death makes the assumption that the person cannot be rehabilitated and suggests that there is no other way to help society except to get rid of that criminal.

These death penalty pros and cons are not intended to serve as a moral framework but are an attempt at a balanced look at reasons why capital punishment is a useful tool within societies, as well as reasons to the contrary. There are also specific outcomes that occur when the death penalty is not a potential sentence, which can be beneficial. That is why these critical points must continue to be discussed so that we all can come to the best possible decision to keep one another safe.

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• death penalty
• Indian Penal Code, 1860

Landmark cases on death penalty in India

This article is written by Jagriti Sanghi , an Advocate practising in the Courts of Telangana. This article discusses some well-known death penalty cases in India.

This article has been published by Abanti Bose.

Table of Contents

Introduction 

​​Law and morality are at a dubious stage. Whether one should go on the path of law or should one go with morals. If one should go with morals, then there would be no justice done to both the parties in the dispute. Therefore, one should go with the law but again morality will be questioned. For example, defending a rape case will go against the morality of that advocate. And the same thing acts as a bar when it comes to awarding the death sentence to the accused. Therefore, the rate of the death penalty is comparatively low in India. But since 2016, there is a growth in the rewarding of the death penalty in India as 65 per cent of the death sentence has been confirmed to be awarded. 

Background of death sentence

In India, a death sentence is awarded only for the rarest of rare cases. Many precedents were in dispute when it came to awarding the death sentence. In Ediga Anamma v. the State of Andhra Pradesh , (1974) the Supreme Court laid down the principle that life imprisonment for the offence of murder is the rule and capital sentence is the exception in certain cases. The Court also stated that a special reason should be given if the court decides to impose a death sentence. 

In another case of Bachan Singh v. the State Of Punjab , (1980) the question was raised whether the punishment of the death penalty will amount to murder under Section 302 of the IPC? Another question that was raised in this case was, what all cases will come under exceptional cases for awarding the punishment of death sentence? The Supreme Court held that Section 302 of the Indian Penal Code, 1860 (IPC) is constitutionally valid and the death penalty won’t amount to murder. It stated that only in the rarest of rare cases that are brutal, the death penalty should be imposed. The Bench stated that numerous circumstances justify the imposition of a lesser sentence. Judges should not be bloodthirsty. 

Now the question arises how to determine the rarest of the rare cases? Two factors for that are: 1) When there is extreme culpability of the offender in committing the offence of murder; and, 2) when there is an extreme cause of the offender in committing the offence of murder. The death penalty is also awarded after seeing the aggravating and mitigating factors and balance of the same. 

Mitigating factors

Some mitigating factors observed by the Bench in the landmark Bachan Singh case are:

• Mental or emotional status of the culprit;
• Age of the accused, whether young or old;
• That the accused can be reformed;
• That the accused acted under coercion.

Aggravating factors

Some of the aggravating factors noted down by the Court in Bachan Singh case are:

• Pre-planned murder
• Calculated and cold-blooded murder
• Helpless state of victim
• Horrendous details of the crime committed
• Shocking nature of the crime

But the Court didn’t explain how the mitigating and aggravating factors are to be balanced. The Court observed that all such situations where hanging should not be imposed as punishment cannot possibly be noted down in one place as it is humanly impossible to anticipate all the future circumstances and human behaviour in a society.

​​This balance was discussed under the case Machhi Singh and Others v. the State of Punjab (1983). A feud between the families took away seventeen lives. The Supreme Court explained the mitigating and aggravating factors and also gave the circumstances related to the imposition of the respected punishment. In the aggravating factor, murder should be pre-planned with extreme brutality or murdering a public servant on or off the duty. And in the mitigating factor, the court considers the circumstances of the offender along with the circumstances of the crime. Some of the most common aggravating factors discussed in the case are:

• Is there something uncommon and unseen in the crime committed which warrants death punishment?; 
• When the manner of commission of the crime is extremely revolting, disgusting, brutal, grotesque;
• When the victim is inhumanly tortured to death;
• Cold-blooded murder with deprave motive;
• Bride burning, setting the house on fire, etc.

Therefore, where the case has a more aggravating factor, then in those cases the punishment will be of the death penalty and if there is more of the mitigating factor, then that will amount to life imprisonment. 

There has been an increment in awarding the death penalty in India since 2016. Furthermore, in an offence under the Protection of Children from Sexual Offences Act, 2019 (POCSO Act); the courts are given the power to sentence the punishment for the death penalty. In the following headings, a few insights into the most horrifying death row cases have been mentioned.

Vinay Sharma v. Union of India (2020)

The Vinay Sharma v. the Union of India (2020) case, also famously known as the Nirbhaya gang-rape case, had shocked the conscience of the whole country. The unfortunate and brutal incident occurred in the chilled weather of Delhi on a bus. The girl was brutally raped by six accused which also led to the death of the girl. An iron rod was also inserted into her private parts and she was thrown naked to the road. All the physical and mental torture led to her death. When the case was brought before the court, one of the accused committed suicide in jail and one of the accused was a juvenile so he was not sentenced to death. But the other four accused were sentenced to death and were also hanged in the year 2020. This judgement was concluded after analysing the aggravating and mitigating factors. The aggravating factors outweighed the mitigating factors if any. The death sentence was imposed because life imprisonment seemed inadequate considering the relevant circumstances of the crime and the inhuman torture committed on the victim which brought about her death.

Shabnam v. Union of India (2015)

In Shabnam v. the Union of India , (2015) the Court awarded a death sentence to the woman and the same was hanged for the first time in the Indian criminal justice system. In this case, Shabnam with her lover killed the members of her family. This incident happened in the year 2008. Shabnam killed her family members because they weren’t allowing her to marry her lover. Therefore, she planned a brutal murder for her family which amounted to be the aggravating factor. She didn’t even leave her young nephew (who was only 10 months old) and also led him to drape with blood. She also submitted mercy to the president which got rejected and she is mostly to be hanged by next year.

Hyderabad veterinarian case (2019)

In the Hyderabad veterinarian case (2019), the female doctor was all alone in the scooter which she parked to the Shamdabad plaza and from where she took the taxi to the office where she was going to work. In the meanwhile, four accused were monitoring her and which led them to puncture her scooter in her absence. When she was back from her work she saw that her scooter was punctured. And in the meanwhile, these four accused came and started forcing her and raping, burning her body. The case was a clear cut case for awarding death sentence, but here the police encountered the accused leading to questions about our Indian criminal justice system.

Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) (2010)

Sidhartha Vashisht @ Manu Sharma v. the State (NCT Of Delhi) (2010), also known as the Jessica Lal case, was one of the horrifying death cases which led the society to know that sometimes money can buy anything but cannot buy justice. In this case, the girl was shot to death when she refused to serve alcohol to one of the accused. Her sister had to run to all the courts for justice for her sister and finally, through a media trial, she led to having the suo motu case taken to the High Court. In this case, the accused manipulated the prime eye witness to become a hostile witness which led the court to award him the punishment of life imprisonment. This judgement was passed after seeing the balance between aggravating and mitigating factors.

Surendra Koli v. State of UP (2011)

Surendra Koli v. the State Of U.P. (2011), also famously known as Nithari Kaand, which happened in the year 2007 was one of the shocking updates for the Indians. In this case, the bodies of the deceased children and adults were found at the house of Mohinder Singh Pandher in the village of Noida called Nithari. When the case was studied in the depth it was found that the found bodies of the girls had been raped and killed and eaten by him. He had committed such a crime to fifteen girls and was awarded the death penalty. He was covered under the aggravating factors. But because of certain provisions of plea bargaining, he was given life imprisonment.

Conclusion 

These were the few horrifying death cases that occurred in the history of the Indian criminal justice system. There are many cases for example Hathras gang rape case , Aarushi Talwar murder case (Noida double murder case), Unnao gang-rape case , in which the investigation or final judgment is pending but necessitate a capital sentence punishment for the gravity of the crime committed. These precedents act as the specimen case so that such brutal cases are not repeated in the future. And most importantly, the balance between aggravating and mitigating factors should always be considered while awarding judgements for such cases.

• ​​ https://economictimes.indiatimes.com/news/politics-and-nation/is-justice-served-by-premature-release-of-jessica-lals-killer/articleshow/76252372.cms?from=mdr
• https://www.thehindu.com/news/national/telangana/rape-rage-and-an-exchange-of-fire/article30300278.ece
• https://www.project39a.com/annual-statistics
• https://economictimes.indiatimes.com/news/politics-and-nation/nirbhaya-case-four-convicts-to-be-hanged-on-march-20/articleshow/74491448.cms
• https://www.indiatoday.in/india/story/shabnam-s-hanging-may-disinherit-son-from-her-father-s-property-1773170-2021-02-25
• https://scroll.in/article/985918/404-prisoners-are-on-death-row-in-india-with-uttar-pradesh-leading-the-list  

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RELATED ARTICLES MORE FROM AUTHOR

Satbir singh v. state of haryana (2021), tukaram and another v. state of maharashtra (1978) : mathura rape case analysis, bachan singh v. state of punjab (1980) : case analysis, leave a reply cancel reply.

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The Editorial Board

America Does Not Need the Death Penalty

By The Editorial Board

The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values . It is separate from the newsroom.

Capital punishment is not a front-burner political issue this year. In fact, the Democratic Party dropped the subject from its 2024 platform, eight years after becoming the first major party to formally call for abolishing the death penalty. But in 2020, President Biden’s campaign platform included a pledge to “work to pass legislation to eliminate the death penalty at the federal level, and incentivize states to follow the federal government’s example.” Once elected, he became the country’s first sitting president openly opposed to capital punishment.

It would be an appropriate and humane finale to his presidency for Mr. Biden to fulfill that pledge and try to eliminate the death penalty for federal crimes. Such an effort would also remind the nation that this practice is immoral, unconstitutional and useless as a deterrent to crime .

For more than two decades now, most barometers of how Americans view capital punishment — the number of new death sentences, the number of executions and the level of public support — have tracked a steady decline. There were 85 executions in 2000 but only 24 last year and 13 so far this year , all carried out in only seven states: Alabama, Florida, Georgia, Missouri, Oklahoma, Texas and Utah.

While a majority of Americans, about 55 percent over the past several years, remain in favor of the death penalty for convicted murderers, half no longer believe it is used fairly. The Gallup Crime Survey, which has been testing opinions on this subject of fairness since 2000, found in last October’s sampling that for the first time, more Americans believed the death penalty was applied unfairly (50 percent) than fairly (47 percent).

‘I Am So Sorry’: Meeting the Man I Put on Death Row

“i regret deeply that we followed the easiest path.”.

“This is death row. And this man doesn’t have long to live.” “I haven’t seen him in more than 20 years.” “Good morning, Robert.” “Good morning to you, Brian. Brian or Mr. Wharton?” “Brian’s fine.” “OK.” “Let me just say, I am so sorry that you’re here and so sorry that you are still here.” “Yes, sir.” “It’s our failure.” “Yes, sir.” “It truly is. But he’s never been far from my mind. Why? Because I helped put him here, and he didn’t deserve it.” “In 2002, I was the chief detective in the police department in Palestine, Texas. A 2-year-old girl was fighting for her life. Her name was Nikki. She had been brought to the hospital by her father, Robert Roberson.” “Roberson told staff they were sleeping in their Palestine home when he woke up and saw Nikki unresponsive, having fallen off the bed.” “When I got to the hospital, Robert wasn’t showing any emotion. His daughter is dying, but he doesn’t seem to care. The medical staff were talking to me about shaken baby syndrome. That’s when an infant is killed or injured after being violently shaken. Nikki would die the following day. If she died of shaken baby syndrome, then there was only one person who could be responsible. So we arrested Robert. He was tried, convicted of murder and sent to death row.” “That was two decades ago. Since then, I have left police work and entered the ministry. But I’ve never been able to forget Robert Roberson. This case has been a burden on my heart and my spirit. Let me just say that you have never been far from me. And I’m convinced we did the wrong thing.” “I think if it would have been properly investigated more, we wouldn’t be here sitting here now, probably.” “No other possibilities for her injury were considered. I regret deeply that we followed the easiest path.” “It was bad enough being — losing her, right?” “Yes, sir.” “I would do anything, anything now to bring her back,” “I would occasionally check this website to track his status. When I’d see his name, I’m thinking to myself, ‘Good. Somebody’s still working with him through the appeals process. An appeal has got to straighten this out, find the truth.’” “I tried to move on. I would comfort myself and say, ‘Look, the system did what the system does. He’s got an attorney. He got his Miranda warnings. We went by the book. He’s where he’s supposed to be.’ But several years ago, someone appeared at my door. It was Robert’s attorney. And I told her, ‘I’ve been expecting you.’ Sadly, I guess it took her appearing at my front door for me to find my voice again. I now understand that Robert did, in fact, have autism.” “It’s hard for me to express myself certain things and stuff. I had lots of things I was going to talk to you about. But sometimes, you get wordless — wordless and stuff.” “I understand, yeah. Autism would explain Robert’s flat affect and lack of emotion in the hospital. It’s absolutely insane that this never came up in his trial. I’ve now come to understand that Nikki was a very sick child and that some of those medical issues could have very easily played into the injuries that ultimately killed her. And shaken baby syndrome, it’s been substantially discredited by many in the medical community. Not only is there reasonable doubt that Robert did do it, there is unassailable doubt that Robert did do it. But for us at the time, we really felt like we were doing the right thing.” “Yes, sir.” “What do you want to say to me — me and the folks that helped put you here?” “I’d like to let you all know, I’ll forgive y’all and stuff. Forgive y’all and stuff. And I just hope and pray that we can make things right together.” “Yeah, I hope so, too. And I appreciate your forgiveness. It means a lot to me. We as human beings are incapable of producing the kind of fairness and justice required to take someone’s life. We can’t do it. And since we can’t do it every time in the same way, justly and fairly, then we don’t need to be doing it at all in the United States and certainly in the great state of Texas. We need to abolish the death penalty.” “And thank you, Brian.” “I’m praying for you, brother.” “I’m praying for you, too, brother.” “Humans are too fallible to do this fairly. We make mistakes. I made a big mistake. It’s a weight I will carry for the rest of my life.”

This editorial board has long argued that the death penalty should be outlawed, as it is in Western Europe and many other parts of the world. Studies have consistently shown, for decades, that the ultimate penalty is applied arbitrarily , and disproportionately to Black people and people with mental problems. A death sentence condemns prisoners to many years of waiting, often in solitary confinement, before they are killed, and executions have often gone awry, arguably violating the Eighth Amendment ban on “cruel and unusual punishment.”

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Make Your Note

Death Penalty

• 12 Feb 2020
• 11 min read
• GS Paper - 2
• Government Policies & Interventions
• Issues Arising Out of Design & Implementation of Policies

This article is based on “Does death penalty deter crime?” which was published in The Times of India on 12/02/2020. It talks about the ongoing debate on the death penalty.

Capital punishment, also called the death penalty, is the execution of an offender sentenced to death after conviction by a court of law of a criminal offence. It is the highest penalty awardable to an accused. Generally, it is awarded in extremely severe cases of murder, rapes, treason etc.

The death penalty is seen as the most suitable punishment and effective deterrent for the worst crimes. Those who oppose it, however, see it as inhumane. Thus, the morality of the death penalty is debatable and many criminologists and socialists all across the globe, have been long demanding abolition of the death penalty.

Arguments: In Favour of the Death Penalty

• This argument states that real justice requires people to suffer for their wrongdoing and to suffer in a way appropriate for the crime.
• Each criminal should get what their crime deserves and in the case of a murder, criminal deserves death.
• Deterrence: Capital punishment is often justified with the argument that by executing convicted murderers, we will deter would-be murderers from killing people.
• It is often argued that the death penalty provides closure for victims' families.
• Thomas Aquinas noted that by accepting the punishment of death, the offender was able to expiate his evil deeds and so escape punishment in the next life. It demonstrates that the death penalty can lead to some forms of rehabilitation.

Arguments: Against the Death Penalty

• Some of those executed may not have been capable of being deterred because of mental illness or defect.
• Some capital crimes are committed in such an emotional state that the perpetrator did not think about the possible consequences.
• Death has been prescribed in rape cases since 2013 (Sec. 376A of IPC), still, rapes continue to happen and in fact, the brutality of rapes has increased manifold. This compels one to think of the death penalty is an effective deterrent to crime.
• According to Amnesty International: As long as human justice remains fallible, the risk of executing the innocent can never be eliminated.
• People who oppose Capital punishment are of the view that retribution is immoral, and it is just a sanitised form of vengeance.
• The UN Secretary General's report on the death penalty presented to the Human Rights Council held that "some 170 States have abolished or introduced a moratorium on the death penalty either in law or in practice, or have suspended executions for more than 10 years".
• Capital punishment doesn't rehabilitate the prisoner and return them to society.

Death Penalty in the Indian Context

• Further, the courts were bound to give an explanation for awarding a lighter penalty than death for capital offences.
• As per Section 354 (3) of the Cr PC, 1973 the courts are required to state reasons in writing for awarding the maximum penalty.
• The situation has been reversed and a life sentence is the rule and death penalty an exception in capital offences.
• Moreover, despite a global moratorium against the death penalty by the UN , India retains the death penalty.
• India is of view that allowing criminals guilty of having committed intentional, cold-blooded, deliberate and brutal murders to escape with a lesser punishment will deprive the law of its effectiveness and result in travesty of justice.
• In concurrence of this, a proposal for the scrapping of the death penalty was rejected by the Law Commission in its 35 th report 1967.
• In the majority of the cases, death was commuted to life imprisonment and some were acquitted by the higher courts.

The Indian Penal Code prescribes ‘death’ for offences such as

• Waging war against the Government of India. (Sec. 121);
• Abetting mutiny actually committed (Sec. 132);
• Giving or fabricating false evidence upon which an innocent person suffers death. (Sec. 194);
• Murder (Sec. 302);

Some other criminal statutes that provide for the death penalty as a form of punishment.

• Direct or indirect abetment of sati is punishable with Death penalty under the Commission of Sati (Prevention) Act, 1987.
• Under SC and ST (Prevention of Atrocities Act), 1989 giving false evidence leading to the execution of an innocent member belonging to the SC or ST would attract the death penalty.
• Besides these, rape of a minor below 12 years of age is punishable with death under Protection of Children from Sexual Offences (POCSO) Act, 2012.
• Financing, producing, manufacturing as well as the sale of certain drugs attracts the death penalty for repeat offenders under the Narcotic Drugs and Psychotropic Substances Act, 1985.
• Unlawful Activities (Prevention) Act, 1967; Army, Navy and Air Force Acts also provide the death penalty for certain specified offences committed by members of the armed forces.

Supreme Court on the Death Penalty

• Thus the death sentence imposed after a trial in accordance with legally established procedures under Cr.PC and the Indian Evidence Act is not unconstitutional under Art. 21.
• Rajendra Prasad v. State of UP 1979 case: The Supreme Court held that, if the murderous operation of a criminal jeopardizes social security in a persistent, planned and perilous fashion then his enjoyment of fundamental rights may be rightly annihilated.
• Bachan Singh v. the State of Punjab 1980 case: A Constitution Bench of the Supreme Court propounded the dictum of ‘rarest of rare cases’ according to which death penalty is not to be awarded except in the ‘rarest of rare cases’ when the alternative option is unquestionably foreclosed.
• Machhi Singh v. State of Punjab 1983 case: The Supreme Court laid down certain considerations for determining whether a case falls under the category of rarest of rare cases or not.

Rarest of Rare Cases

• When the murder is committed in an extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner so as to awaken intense and extreme indignation of the community.
• When total depravity and cruelty are the motives behind a murder.

Deterrence is most effective when the punishment happens soon after the crime. The more the legal process distances the punishment from the crime - either in time, or certainty - the less effective a deterrent the punishment will probably be.

India is awaiting execution of Nirbhaya’s rapists, the inordinate delay in the execution of the death penalty has taken the sting out of the punishment. This is the reason why Hyderabad police encounter in Disha’s case was hailed by a large populace.

In this context, there is a need to expedite investigations at the hands of a well trained and equipped police system ably supported by fast track trials to reinforce the faith of the public in our legal system.