CQR Death Penalty Debates - Frank Baumgartner · The death sentence given to Steven Hayes on Nov. 8...

Death Penalty DebatesIs the capital punishment system working?

Public support for capital punishment in the United

States remains strong on paper, but opponents say it

is weakening in practice. The number of new death

sentences fell in 2009 to its lowest point in four

decades and seems likely to end even lower in 2010. The number

of executions has also fallen to half the number or fewer than in

the 1990s. Critics and opponents of the death penalty say prosecu-

tors may be seeking the death penalty less often because of the

costs of a capital trial, sentencing and post-conviction proceedings.

Jurors may also be worried about the costs of the system, the

delay between sentence and execution and the risk of executing

an innocent person. Supporters of capital punishment counter that

the costs and delays result primarily from obstructionism by death

penalty lawyers and that the risk of a wrongful execution is all

but nonexistent.

I

N

S

I

D

E

THE ISSUES ....................967

BACKGROUND ................974

CHRONOLOGY ................975

CURRENT SITUATION ........980

AT ISSUE........................981

OUTLOOK ......................983

BIBLIOGRAPHY ................986

THE NEXT STEP ..............987

THISREPORT

Dr. William Petit, who survived a horrific, night-longrampage that killed his wife and two daughters,embraces his sister on Nov. 8, after jurors gave thedeath penalty to Steven Hayes. “This is justice,”

said Petit, who had wanted capital punishment forHayes and his co-defendant.

CQResearcherPublished by CQ Press, a Division of SAGE

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CQ Researcher • Nov. 19, 2010 • www.cqresearcher.comVolume 20, Number 41 • Pages 965-988

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR

EXCELLENCE � AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

966 CQ Researcher

THE ISSUES

967 • Does the death penaltydeter capital crimes?• Does capital punishmentcost more to administerthan it is worth?• Do capital defendantshave adequate legal repre-sentation in court andafter sentencing?

BACKGROUND

974 Death DebatesEfforts to abolish capitalpunishment began early.

976 Death ProceduresSupreme Court has ruledon scope and method ofdeath penalty.

978 Death DoubtsDeath penalty critics citethe costs of capital cases,doubts about guilt.

CURRENT SITUATION

980 Paying for LawyersInmates’ advocates in theSouth seek better-fundedpublic legal defense.

982 Debating Changes?GOP gains in Novembercould help streamlinecapital punishment.

OUTLOOK

983 ‘Tinkering’ With DeathThe death penalty remainslegal, and popular withthe public, nearly 20 yearsafter Justice Blackmun re-nounced it.

SIDEBARS AND GRAPHICS

968 Number of ExecutionsHas DeclinedExecutions peaked in 1999.

969 Fewer Death SentencesBeing Handed DownThe number declined to 106in 2009.

970 Texas Death Row InmateIs 139th to Be ‘Exonerated’“Nothing connects AnthonyGraves to this crime.”

971 Exonerations on the RiseNine death-row inmates wereexonerated in 2009.

972 Majority of AmericansSupport Death PenaltyTrend has been largely steadysince late 1930s.

975 ChronologyKey events since 1966.

976 Mentally Retarded Defen-dants Still Face ExecutionCritics say the intellectuallydisabled remain vulnerable.

978 Did Texas Execute an Innocent Man?Experts are reexamining firethat killed three sisters.

981 At IssueShould capital punishment beabolished in the United States?

FOR FURTHER RESEARCH

985 For More InformationOrganizations to contact.

986 BibliographySelected sources used.

987 The Next StepAdditional articles.

987 Citing CQ ResearcherSample bibliography formats.

DEATH PENALTY DEBATES

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Death Penalty Debates

THE ISSUESJ urors in the Steven Hayes

triple-murder trial inConnecticut needed less than a full day on Oct. 5

to convict the burly, 47-year-old parolee of one of the mostgruesome crimes in the state’shistory. After three-and-a-halfweeks, however, the trial wasonly half finished. Prosecutorsand defense lawyers still hadto present evidence and ar-guments on whether Hayesshould be given the deathpenalty or sentenced to lifeimprisonment without possi-bility of parole.

Over the next two-and-a-half weeks, prosecutors de-picted Hayes as a longtimeoffender who took sadisticdelight in planning the homeinvasion in the suburban Con-necticut town of Cheshire inJuly 2007 that left a motherand two daughters dead aftera night of beatings, rape, stran-gulation and arson. Defenselawyers countered the pros-ecution’s plea for the deathpenalty by portraying Hayes’ yet-to-be-tried co-defendant, 30-year-old JoshuaKomisarjevsky, as the mastermind ofthe killings. Hayes, the defense lawyerscontended, was a drug-addicted victimof childhood abuse so filled with re-morse over the killings that he washoping for a death sentence.

The jury of seven women and fivemen deliberated over four days, in-cluding a weekend, before renderingtheir decision. Death, the jurors said,would be “the appropriate sentence”for each of the six capital felony countsagainst Hayes in their earlier verdicts.

William Petit, the only survivor of thenight-long crime spree, spoke to re-porters after the verdict from the steps

of the courthouse in nearby New Haven.“I was glad for the girls,” said Petit, whohad called for the death penalty forHayes and Komisarjevsky, who facestrial in 2011. “This is justice.”

Petit, a prominent physician, was him-self beaten, tied up and left for dead inthe basement as the two parolees usedgasoline to set the home ablaze. Hefreed himself and fled to the yard of aneighbor, who summoned police. Offi-cers found Petit’s wife, Jennifer Hawke-Petit, and their two daughters, Michaela,11, and Hayley, 17, dead in separate,second-story bedrooms. Jennifer andMichaela had been sexually assaulted. 1

Hayes’ sentence shows Americans’support for capital punishment even in

a politically and socially liberalstate such as Connecticut, wherethe Democratic-controlledlegislature voted in May 2009to abolish the death penalty infuture cases. Gov. M. Jodi Rell,a Republican, pointed to thethen-pending case againstHayes and Komisarjevsky invetoing the measure. “Weshould not, will not, abidethose who have killed for thesake of killing,” she said inher June 5 veto message.

After the verdict, jurors inHayes’ trial said they careful-ly discussed the morality ofcapital punishment during theirweekend deliberations, butwere as one in the final de-cision. “It was just so heinousand just so over the top anddepraved,” Herbert Gram toldThe New York Times. “Here isa case where somebodydoesn’t deserve to remain onthe face of the Earth.” 2

The United States retainsthe death penalty for specifi-cally defined cases of murdereven though most of the worldhas abolished capital punish-ment either in form or prac-

tice, according to the Death Penalty In-formation Center, a Washington-basedorganization opposed to capital punish-ment with a comprehensive and well-regarded database on death penalty is-sues. The 58 countries that retain capitalpunishment include only three othermajor democracies: India, Indonesia andJapan. With 60 executions in 2009, theUnited States ranked fifth in the worldbehind four countries with unfavorablehuman rights records: China, Iran, SaudiArabia and Iraq. 3

Yet death penalty opponents and crit-ics say capital punishment is decliningin popularity in the United States evenas polls continue to show substantialmajority support for the practice.

BY KENNETH JOST

Connecticut State Police

The death sentence given to Steven Hayes on Nov. 8 for theJuly 2007 murders of Dr. William Petit’s wife anddaughters reflects Americans’ support of capital

punishment, even in a liberal state such as Connecticut,where the legislature voted to abolish the death penalty infuture cases. Said a juror: “Here is a case where somebody

doesn’t deserve to remain on the face of the Earth.”

968 CQ Researcher

“The decline in the use of the deathpenalty is the continuing story,” says RichardDieter, the center’s executive director. “Deathsentences, executions, the number ofstates that have the death penalty and thesize of the population on death row haveall declined in the last decade.”

The center’s statistics bear out Dieter’sclaims. The number of executions sincethe Supreme Court’s 1976 decision re-instituting capital punishment peaked in1999 at 98 and has been declining sincethen except for a temporary spike in2009 after the court rejected a challenge

to lethal injection practices. The centercounts 45 executions so far in 2010,through early November.

The number of new death sentencespeaked above 300 per year in the mid-to late-1990s, according to informationcited by the center from the U.S. De-partment of Justice’s Bureau of JusticeStatistics (BJS). For 2009, the numberhad fallen by nearly two-thirds to 106,according to the center’s compilationfor the year. (See graphs, pp. 968, 969.)

“There’s an ambivalence about thedeath penalty in the public,” Dietercontends. “They generally support itin theory, but in practice they havedeep concerns.”

“It seems to be on the decline again,”says Victor Streib, a death penalty ex-pert at Ohio Northern University’s PetitCollege of Law in Ada who takes noposition on the issue of retaining orabolishing capital punishment. “Therehave always been problems with thedeath penalty system, and more arecoming to light.”

Death penalty supporters denythat public support for capital pun-ishment is declining. “It’s not am-bivalence,” says Kent Scheidegger, legaldirector for the pro-law enforcementCriminal Justice Legal Foundation inSacramento, Calif. “There is a certainfatigue factor in that it’s been so dif-ficult to carry [death sentences] outand so many delays that prosecutorsmay take that into consideration in aborderline case. If we make progressin reducing delays, that factor mayend up being reversed.”

In fact, the Gallup Organization’s an-nual surveys have registered 2-to-1 sup-port throughout the past decade for im-posing the death penalty for murder.(See polls, p. 972.) “The public supportfor the death penalty is remarkably ro-bust,” says Robert Blecker, a professorat New York Law School in New YorkCity and a self-described “retributivist”supporter of capital punishment. “It’snot yielding to the relentless attacks bythe abolitionists.”


20

40

60

80

100

NO EXECUTIONS IN 1976, 1978,

1980

’76 ’80 ’85 ’90 ’95 2000 2005 2010*

EXECUTIONSSINCE 1976*2010 figure as of Nov. 8

Number of Executions Has DeclinedThe number of executions in the United States since the Supreme Court reinstituted capital punishment in 1976 peaked in 1999 and has been declining since then, except for a temporary spike in 2009 after the court rejected a challenge to lethal injection.

Source: Death Penalty Information Center, www.deathpenaltyinfo.org/executions-year


Faced with the persisting public sup-port for capital punishment, deathpenalty critics and opponents are todayemphasizing pragmatic arguments againstthe practice. Most recently, they havebeen pointing to the fiscal strains onstate and local governments in empha-sizing the costs of capital trials, appealsand post-conviction challenges.

“It’s very expensive to seek the deathpenalty. It’s very expensive to get it,”says John Blume, director of the DeathPenalty Litigation Clinic at Cornell Uni-versity Law School in Ithaca, N.Y. “Giventhe current financial situation, therewill be some increasing reluctances inthat regard.”

Death penalty supporters dismissthe concerns. “It’s a makeweight issue,”says Blecker. “The irony is that thevery people who complain about thecosts are the very people who aredoing everything they can to delay itand multiply its expense.”

Supporters and opponents also con-tinue to debate the question of whetheruse of the death penalty acts as a de-terrent for other potential murderers.The issue remains unresolved — ar-guably, unresolvable — despite de-bates dating back centuries and sta-tistical studies in the United States goingback to the mid-1970s.

In addition, the opposing campsdisagree about the risks of a wrong-ful execution. Death penalty criticspoint to the growing number of whatthey call “exonerations” of death rowinmates to insist that the risk is real.Indeed, they point to a Texas case asa likely candidate: the execution ofCameron Todd Willingham in 2004after having been convicted of thedeaths of his three young children ina house fire deemed to be arson basedon what is now highly disputed foren-sic testimony. 4

Death penalty supporters discountthe exoneration of death row inmates,arguing that court-ordered reversals ofdeath sentences do not amount to ju-dicial findings of innocence. They say

the risk of a wrongful execution is min-imal at most and specifically dispute thenow pending challenge to the evidenceused in the Willingham case. (See side-bar, p. 970; Willingham case, p. 978.)

The Supreme Court, meanwhile, hasnarrowed the death penalty somewhatin three successive rulings over thepast decade that have barred execu-tions of mentally retarded offenders,juvenile offenders or child rapists. Deathpenalty critics, however, say that stateshave been inconsistent in applying the2002 ruling against executing defen-dants with intellectual disabilities. (Seesidebar, p. 976.)

As court cases continue and rivalcamps press their arguments on statelegislatures, here are some of themajor issues being argued:

Does the death penalty detercapital crimes?

Three decades after casting the piv-otal vote in the 1976 decision to up-hold revised death penalty laws, JusticeJohn Paul Stevens in 2008 urged theSupreme Court and state legislatures toreconsider the issue. Among his reasons,Stevens cited what he called the lack of“reliable statistical evidence” that capitalpunishment deters potential offenders.Without such evidence, Stevens wrote,“deterrence cannot serve as a sufficientpenological justification for this unique-ly severe and irrevocable punishment.”

Stevens’ opinion — a separate con-currence in a decision that upheld theprocedures for lethal injection execu-tions — prompted a tart response fromconservative Justice Antonin Scalia. He

0 ’76 ’80 ’85 ’90 ’95 2000 2005 2009

50

100

150

200

250

300

350

400

Source: Death Penalty Information Center,www.deathpenaltyinfo.org/death-sentences-year-1977-2008

Number of Death Sentencesin the United States,1976-2008

Far Fewer Death Sentences Handed DownThe number of death sentences declined in 2009 to 106, a nearly two-thirds drop since the number peaked above 300 in the mid- to late-1990s. Death penalty opponents say the decline mirrors the public’s concern. But supporters say the decline reflects prosecutors’ awareness that carrying out the death penalty is difficult and often fraught with delays.

970 CQ Researcher

accused Stevens of ignoring what twoscholars had called “the significant body”of evidence pointing to a possible de-terrent effect. Regardless of the evidence,Scalia concluded, the Supreme Courthas no right “to demand that state leg-islatures support their criminal sanctionswith foolproof empirical studies, rather

than commonsense predictions abouthuman behavior.” 5

The question of deterrence has di-vided supporters and opponents of thedeath penalty in the United States at leastsince the early 19th century, accordingto legal historian Stuart Banner. In thosedays, the UCLA law professor writes,

there was “a virtual absence of any at-tempt by either side to back up its claimswith numbers.” 6 Today, by contrast, thedebate is densely statistical. Even so,more than three decades of research byeconomists and law professors publishedin two dozen or more academic articleshave failed to resolve the debate. 7


A nthony Graves walked out of a Texas jail on Oct. 27as a free man for the first time in nearly two decades,no longer facing the death penalty for a crime that the

local district attorney now concedes Graves did not commit.Graves became the 139th former death row inmate to have

been exonerated of his alleged crimesince 1973, according to a compila-tion by the anti-capital punishmentDeath Penalty Information Center. Thecenter’s updated database includes ac-counts of each of the cases along withstatistical compilations. 1

The list is not without controver-sy. Death penalty supporters contendthat the descriptions of the formerdeath row inmates as “innocent” or“exonerated” overstate the effects ofreversals of their convictions or sen-tences as a result of appeals or post-conviction challenges. They contendthat a failure to convict the inmateagain does not establish his innocence.

The center defends the classifica-tion by stating that someone is in-cluded on the list only if the convic-tion is overturned and the individualis acquitted at retrial, the charges aredropped or the state’s governor issuesa pardon based on new evidence ofinnocence. The list does not include anyone who was later givena reduced sentence or convicted of lesser charges, the center says.

The center’s compilation lists Graves as the 12th person exon-erated in Texas since the count began. Among the 25 other stateswith exonerations, Florida has the largest number: 23. Graves isAfrican-American, like the majority of the exonerated (72). Amongthe others, 53 are white, 12 are Latino and two are listed as “other.”

Despite the attention focused on the use of DNA evidencein identifying wrongful convictions, only 17 of the exonera-tions are attributed to DNA testing. Most of the exonerations,like Graves’, are based on a reexamination of evidence at trial

along with errors by police or prosecutors.Graves was convicted in 1994 of assisting another man,

Robert Earl Carter, two years earlier in the slaying of a Texaswoman, her teenaged daughter and four young grandchildren.Carter’s testimony against Graves was the prosecution’s major

evidence. Jurors rejected Graves’ broth-er’s testimony that he was asleep at homewhen the killings occurred.

Carter recanted his accusation two weeksbefore his scheduled execution in 2000 andagain minutes before his death. “AnthonyGraves had nothing to do with it,” Cartersaid, according to the account in the Hous-ton Chronicle. “I lied on him in court.” 2

Ruling on Graves’ federal habeas cor-pus petition, the Fifth U.S. Circuit Courtof Appeals granted Graves a new trial in2006 on the grounds that prosecutors hadelicited false testimony and withheld in-formation that could have influenced ju-rors. The former prosecutor continued todefend the conviction and sentence, but aspecial prosecutor chosen from anotherdistrict to reinvestigate the case conclud-ed Graves was innocent.

Graves was released from the BurlesonCounty jail late in the afternoon of Oct. 27after District Attorney Bill Parham filed acourt motion to dismiss all charges. “He’s

an innocent man,” Parham said. “There is nothing that connectsAnthony Graves to this crime.”

— Kenneth Jost

1 See Death Penalty Information Center, “The Innocence List,” www.deathpenaltyinfo.org/innocence-list-those-freed-death-row (last updated Oct. 28, 2010).2 Brian Rogers and Cindy George, “After Years on Death Row, He’s an Inno-cent Man,” Houston Chronicle, Oct. 28, 2010, p. A1. See also Pamela Coloff,“Innocence Lost,” Texas Monthly, October 2010, www.texasmonthly.com/2010-10-01/feature2.php. Coloff’s investigative report was published a month beforeGraves’ release. Coloff wrote a short follow-up, “Free at Last,” for the maga-zine’s November issue (www.texasmonthly.com/2010-11-01/webextra6.php).

Texas Death Row Inmate Is 139th to Be ‘Exonerated’“There is nothing that connects Anthony Graves to this crime.”

Anthony Graves spent nearly two decadesin prison for a crime he did not commit.

Texas Coalition to Abolish the Death Penalty


The modern debate dates from anarticle published in 1975 in the Ameri-can Economic Review by Isaac Ehrlich,now chairman of the economics de-partment at the University of Buffalo andalso a distinguished professor at the StateUniversity of New York. Ehrlich useddata from the period 1933-1969 to con-clude that each execution served on av-erage to prevent eight murders throughdeterrence of other killings. As Bannerrelates, the article drew unaccustomedattention for a statistically technical study— followed by “intense criticism” ofEhrlich’s methodology and conclusion. 8

Many more studies followed. By theearly 2000s, supporters of capital pun-ishment counted a total of 14 that foundevidence of a deterrent effect from thedeath penalty. In an influential studypublished in 2003, Emory University econ-omists Hashem Dezhbakhsh and PaulH. Rubin and Emory law professor Joan-na Shepherd used data from before andafter then-recent death penalty morato-riums to conclude that each executionprevented on average 18 murders.

Their conclusion was challenged in turnin a 2005 article by Yale law professorJohn Donohoe and economist JustinWolfers of the University of Pennsylvania’sWharton School. They called the evidencefor deterrence “surprisingly fragile,” notingthat minor changes in methodology re-sulted in completely different results. In acondensed version that appeared alongwith an exchange with the Emory au-thors, Donohoe and Wolfers wrote: “Theview that the death penalty deters is stillthe product of belief, not evidence.” 9

Today, the economists remain in dis-agreement while appearing to acknowl-edge the impossibility of a definitive con-clusion. “There are ways to do the analysesto find deterrence and ways to do it tofind no deterrence,” says Rubin. For hispart, Wolfers says the presence or ab-sence of deterrence “is difficult to tell nomatter whatever angle you look at it.”

With the economists in disagreement,pro- and anti-death penalty advocatestend to side with the view that supports

their position. “I think the literature asa whole still shows deterrence,” saysScheidegger with the Criminal JusticeLegal Foundation. “And I think the evi-dence will grow stronger over time.”From the other side, Cornell’s Blumesays flatly, “There’s no credible evidencethat the death penalty is a deterrent.”

Even while supporting the deathpenalty, many in the law enforcementcommunity voice doubts that killers ac-tually weigh the potential consequencesof their crimes before committing them.“Do people in emotional circumstancecontemplate” the potential punishment?asks Scott Burns, executive director ofthe National District Attorneys Associ-ation. “Probably not.”

The search for evidence of deterrenceis difficult in part because of the relativeinfrequency of executions in the UnitedStates. “In 99 percent of the murders,

there are not going to be executions, noteven a death sentence,” says Dieter withthe Death Penalty Information Center.

“It’s certainly an enormous wasteof money in terms of deterrence,” saysStreib, the Ohio Northern Universityprofessor. “There are so many otherthings we could do with that money.”

Does capital punishment cost moreto administer than it is worth?

California was spending upwards of$100 million a year on death penaltycases as of 2008 in state post-trial costsalone, according to a blue-ribbon com-mission. But that was not nearly enoughto prevent appeals and post-convictionchallenges from dragging on for anaverage of 20 years after death sen-tences were imposed.

To get the lapse of time down tothe national average of about 10 years

19730

2

4

6

8

10

12

1987 2003 2009

Death RowExonerations

1973–2009

Source: Death Penalty Information Center,www.deathpenaltyinfo.org/innocence-and-death-penalty

Exonerations on the RiseNine death row inmates were exonerated in 2009, continuing a rising trend since the early 1970s. From 1973-1999, an aver-age of 3.1 exonerations occurred each year; from 2000-2007 an average of 5 exonerations occurred yearly.

972 CQ Researcher

or so, the California Commission onthe Fair Administration of Justice con-cluded, would cost the state at leastanother $95 million a year. But not-ing what it called the state’s “budgetcrisis,” the commission also said thatcosts could be reduced to a mere$11.5 million a year by substituting lifewithout parole as the maximum pun-ishment for capital offenses.

Law enforcement representativeson the 22-member commission dis-sented from the decision to list alter-natives to the state’s existing deathpenalty statute. But none disagreed withthe cost figures, including the need tonearly double the state’s spending tocut the backlog that at the time hadfilled the state’s death row beyond ca-pacity to 670 inmates. 10

Whatever one’s views about the deathpenalty, the increased cost needed for acapital trial itself under existing law isbeyond dispute. A Kansas study citedby the California commission found thata capital trial cost $1.2 million compared

to $700,000 for a non-capital murdercase. In Tennessee, adding a capitalcharge was found to raise the cost of atrial by about 50 percent. And an Indi-ana study found that the total trial andpost-trial cost of a capital case was fivetimes the cost for a non-capital murder.

“We used to have not such an elab-orate system either at trial or on appealor later in habeas corpus,” says OhioNorthern University professor Streib. “Thesystem today is extraordinarily expensive.”

Critics and opponents cite the increasedcosts — at a time, they stress, of strainedstate budgets — as an argument for mov-ing away from the death penalty. “Wespend a lot of money to execute a verysmall number of people,” says Cornelllaw professor Blume. “We could take thatmoney, spend it elsewhere and makesociety a safer place.”

Burns with the DAs’ group countersthat it is wrong to “put a price tag” ona life. “How do you tell the family ofa victim,” he asks, “that it is not worththe money under our system of justice

to seek the death penalty when the vot-ers of a particular state have decidedthe death penalty is an option?”

The Supreme Court set the cost spi-ral in motion by upholding death penal-ty laws in 1976 only if they includeda separate sentencing phase that al-lowed a capital defendant to presentmitigating evidence even after beingfound guilty. Law enforcement advo-cate Scheidegger criticizes the result.

“We shouldn’t need to dig up theguy’s entire life history,” Scheidegger says.Trial costs could be cut, he says, “if wekept the case focused on the crime andthe defendant’s culpability for it.”

“Cutting costs is not easy,” countersDieter with the Death Penalty Informa-tion Center. “If you’re going to do acase, you’re going to have to do it well.”

Post-trial procedures raise the costs ofcapital cases even further. With the trialand sentencing themselves more complex,appellate review is necessarily more time-consuming and thus more expensive. Inaddition, post-conviction challenges in bothstate and federal courts are all but in-evitable, again with more time and moreexpense entailed to review a capital trial.

In its report, the California commis-sion estimated the death penalty adds$51 million annually to the cost of ap-peals and federal habeas corpus pro-ceedings. Most of the added spendingrecommended by the commission —about $85 million — was for addition-al lawyers to speed up appeals and post-conviction challenges. At the time, near-ly half of the death row inmates wereawaiting appointment of counsel to han-dle federal habeas corpus proceedings.

Housing inmates on death row alsocosts $90,000 more per inmate peryear than imprisonment in a maximumsecurity facility, the commission said.The total additional cost was put at$63 million per year.

Blecker, the New York Law Schoolprofessor, says studies such as thosecited by the California commission failto note costs saved by the use of thedeath penalty as a bargaining chip for


0Percent

Source: Gallup Poll

1936 1953 1966 1988 1999 2009

10

20

30

40

50

60

70

80

100Are you in favor of the death penalty for a person convicted of murder?

For

Against

Majority of Americans Support Death Penalty Since the late 1930s, a substantial majority of Americans has favored the death penalty for a person convicted of murder, except for a dip in the mid-1960s.


prosecutors in plea negotiations. “Theydon’t take into account the hundredsof thousands of dollars saved for everyguilty plea obtained and life withoutparole accepted because — and onlybecause — the death penalty is takenoff the table,” Blecker says.

But Blecker also dismisses the costissue as irrelevant. “Justice ain’t cheap,”he says. “If it turns out that the deathpenalty is the only just alternative incertain cases, we should do it.”

Do capital defendants have ade-quate legal representation incourt and after sentencing?

As a child, Kevin Wiggins sufferedphysical abuse from his alcoholic moth-er and sexual abuse in two fosterhomes. But his defense lawyers in acapital murder trial in Baltimore in 1989made only a cursory investigation ofWiggins’ background and decided topresent none of the evidence in thesentencing phase after his conviction.

More than a decade later, the U.S.Supreme Court in 2003 ordered a newsentencing hearing for Wiggins on thegrounds that his lawyers’ performancefell below the established professionalstandards for defense attorneys in a cap-ital case. Commenting at the time, DavidBruck, a Columbia, S.C., lawyer spe-cializing in death penalty cases, lament-ed what he called “a real neglect ofthe right to counsel in capital cases.”Bruck predicted that it would be “muchharder for reviewing courts” to ignorethe issue in the future. 11

Today, however, death penalty crit-ics and opponents say many capitaldefendants still receive inadequate rep-resentation at trial and that many oreven most death row inmates have lit-tle if any legal help in challenging theirconvictions or sentences afterward.“Capital defendants are still gettingabysmal representation at trial, repre-sentation that is negligent and incom-petent in many cases,” says Robin Maher,director of the Death Penalty Repre-sentation Project at the American Bar

Association (ABA). In post-convictionproceedings, Maher says, “it’s more ofthe same, or no lawyer at all.”

Law enforcement advocates call thecriticisms overblown. “You can go toevery state in the union and find someof the best and brightest defense at-torneys representing those accused ofmurder,” says Burns with the districtattorneys’ group. “It does a disserviceto them and to the system to say thatthey are less than qualified.”

“Can you find individual cases” ofinadequate representation? Burns asksrhetorically. “Yes, but as a whole theydo an incredible job.”

Some death penalty opponents seesome improvements in representationfor death penalty defendants in recentyears. Dieter with the Death PenaltyInformation Center says that some ju-risdictions have raised pay for court-appointed defense attorneys or removedoverall caps on spending for a case.Texas — the state with by far the great-est number of executions — has adopt-ed standards for lawyers to be ap-pointed to represent capital defendants.And Virginia has recently joined the listof states with a statewide capital de-fender office to provide counsel for in-digents in death penalty cases.

Despite improvements in somestates, Terrica Redfield, a staff attorneywith the Southern Center for HumanRights in Atlanta who also serves asdeath penalty counsel for the NationalAssociation of Criminal Defense Lawyers,says others continue to have systemicproblems. She points in particular to Al-abama, a state with no statewide publicdefender system at all. As a result, in-digent capital defendants are represent-ed by private lawyers willing to acceptcourt appointments. She says many lacktraining, and compensation is low.“They’re basically getting paid a little bitof nothing,” she says. “It’s not hard tosee that the capital case gets pushed tothe bottom of the stack of things to do.”

Ineffective-assistance claims continueto be a major issue in appellate or post-

conviction review of capital cases. TheCalifornia commission noted that as of2008, three-fifths of the death sentencesreviewed in federal courts were struckdown even after having been upheld instate courts. Ineffective-assistance claimswere the most frequent reason, accord-ing to Gerald Uelmen, the Santa ClaraUniversity Law School professor who servedas the commission’s executive director.

Law enforcement advocate Scheideg-ger blames the problem on the open-ended sentencing phase in capital cases.“You really don’t see many claims thatthe defense lawyer botched the guiltphase,” he says. “That doesn’t come upvery often.”

Federal habeas corpus cases presentan especially burdensome task for lawyers,according to Uelmen, because they es-sentially entail reinvestigating the entirecase. Private lawyers are reluctant to takehabeas cases, Uelmen says, and the statelegislature has not fully funded the of-fice created in 1998 to provide repre-sentation in post-conviction proceedings.

Scheidegger blames the lack oflawyers to handle those cases in parton the federal government’s failure toimplement a provision in the 1996overhaul of habeas corpus law to givestates financial incentives for appoint-ment of lawyers for death row inmates.For his part, Burns with the district at-torneys’ group calls for limiting the num-ber of post-conviction challenges. “Wehave to put some degree of finality inthis ad nauseam system,” he says. “It’snot fair to the victims of crime. It’s notfair to the defenders and the prosecu-tors. It’s not fair to the public.”

In her opinion for the Supreme Courtin the Wiggins case, Justice Sandra DayO’Connor cited standards issued by theABA that call on lawyers in capital cases“to discover all reasonably available miti-gating evidence and evidence to rebutany aggravating evidence that may beintroduced by the prosecutor” (empha-sis in original). Dieter believes the court’sruling has had some effect. “The mes-sage is getting across,” he says.

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Death penalty cases tried before the2003 ruling, however, are continuingto be reversed because of inadequaterepresentation at trial. In October, theAlabama Court of Criminal Appeals setaside a death sentence imposed onLaSamuel Gamble in 1998 for a pawn-shop robbery-killing two years earlier.The trial lawyers’ investigation “was soinadequate that they failed to discoverany mitigation evidence to present at thepenalty phase,” the court wrote, eventhough the post-conviction challengeshowed that “a plethora of evidence”could have been presented. 12

BACKGROUNDDeath Debates

T he death penalty has been prac-ticed in America since colonial

times and has been a contentious issuefor almost as long. Efforts to narrowor abolish capital punishment date fromthe Revolutionary era. Over time, thedeath penalty came to be reserved inmany states solely for murder and wasabolished altogether in some.

Support for abolishing capital pun-ishment helped produce an unofficialmoratorium in the 1960s, followed bythe Supreme Court’s controversial deci-sion in 1972 invalidating all existing deathsentences. Four years later, however, thecourt upheld rewritten death penaltylaws, allowing states to resume execu-tions even as debates and legal chal-lenges over the practice continued. 13

Colonial America carried over thedeath penalty from England, but narrowedits scope. Thus, several Northern coloniesdropped the death penalty for propertycrimes or for rape. Abolitionist sentimentdeveloped before independence and beganto have a concrete effect soon after. Inthe 1790s, five states abolished the deathpenalty for all crimes except murder.

The trend continued in the North inthe 1800s. Michigan abolished the deathpenalty except for treason in 1846; RhodeIsland and Wisconsin abolished it alto-gether in the 1850s. By 1860, no North-ern state provided capital punishmentfor any crime other than murder or trea-son. By contrast, no Southern state hadcompletely abolished capital punishmentbefore the Civil War. And the deathpenalty was invoked against African-Americans in the South for such crimesas spreading insubordination amongslaves or rape or attempted rape.

Capital punishment continued to re-cede from the end of the Civil Warthrough the mid-20th century. Execu-tions, once public events, became pri-vate: The last public execution, a hang-ing, was in Kentucky in 1936. Statessought what were viewed as more hu-mane methods of execution, such aselectrocution or lethal gas.

More states abolished or limited cap-ital punishment in the early 20th centu-ry, though some reinstated it during the“Red Scare” era of the 1920s. The num-ber of executions fell over time — from1,289 in the 1940s to 715 in the 1950sand 191 in the 1960s before the mile-stone year of 1968, the first with no ex-ecutions anywhere in the United States.Support for capital punishment also sagged;it fell to 42 percent in 1966, the lowestpercentage recorded in modern polling.

Buoyed by these developments, op-ponents of capital punishment con-tinued to lobby state legislatures at thesame time as lawyers with the NAACPLegal Defense Fund and others chal-lenged the death penalty in court asunconstitutional. The litigation strate-gy peaked in 1972 with the SupremeCourt’s 5-4 decision in Furman v.Georgia invalidating all existing deathpenalty sentences as unconstitutionalunder the Eighth Amendment’s Crueland Unusual Punishments Clause.

Ominously for death penalty oppo-nents, the five justices in the majorityfailed to agree on a single opinion. Two— William J. Brennan Jr. and Thurgood

Marshall — found the death penalty un-constitutional in all circumstances; a third,William O. Douglas, appeared also torule it out as inherently discriminatory.But Justices Potter Stewart and Byron R.White both concluded more narrowlythat, as then administered, the deathpenalty was too arbitrary to pass con-stitutional muster. 14

The court’s ruling triggered a pub-lic backlash. Support for the deathpenalty increased to 65 percent by1976. State legislatures responded byreenacting death penalty laws alongtwo models. A few established a manda-tory death penalty for specified crimes;the larger number — 25 in all — en-acted so-called guided discretionstatutes that required separate capitalsentencing hearings with jurors directedto consider specified aggravating ormitigating circumstances.

In 1976 — with Douglas replacedby Stevens — the Supreme Court ruledthe mandatory death penalty statutes un-constitutional on a 5-4 vote, but upheldthe guided discretion laws by a 7-2 mar-gin with only Brennan and Marshall dis-senting. “No longer can a jury wantonlyand freakishly impose the death sen-tence,” Stewart wrote in the pivotal opin-ion in Gregg v. Georgia. “[I]t is always cir-cumscribed by legislative guidelines.” 15

Executions resumed, but slowly sincesentences under the new laws still faceda gauntlet of appeals and post-convictionchallenges. Only 140 persons were ex-ecuted in the 1980s. The Supreme Court,meanwhile, narrowed capital punish-ment somewhat by prohibiting thedeath penalty for rape (1977), limitingits use somewhat for accomplices infelony murders (1982, 1987) and barringthe execution of someone who was in-sane or mentally incompetent (1986).

The court, however, rejected broad-er challenges. In 1984, the court heldthat states did not need to ensure thatan individual death sentence was pro-portional to the punishment imposed onothers convicted of similar crimes. And

Continued on p. 976


ChronologyBefore 1960Capital punishment is practicedsince colonial times despite per-sistent debates; over time, deathpenalty abolished in some states,number of executions falls.

•

1960s-1970sSupport for death penalty sags;Supreme Court suspends, thenreinstitutes capital punishment.

1966Public support for death penaltydips to record-low 42 percent.

1968First year in U.S. history with noexecutions. . . . Unofficial deathpenalty moratorium as courtsweigh constitutional challenges,legislatures consider repeal.

1972Supreme Court invalidates all exist-ing death sentences as “cruel andunusual punishment” because ofarbitrary imposition; 5-4 rulingprompts public backlash; statesrush to revise death penalty laws.

1975Prominent economist claims proofof deterrent effect from executions.

1976Supreme Court upholds, 7-2, statedeath penalty laws with separatesentencing hearing and instructionsto guide jurors’ discretion; 5-4companion ruling strikes downmandatory death penalty statutes.

1978Supreme Court says jurors musthave discretion to consider any“mitigating” circumstance in sentenc-ing phase of capital trial.

1980s Pace of execu-tions quickens; Supreme Courtrejects broad challenges.

1984Supreme Court rejects proportionalityin state’s use of death penalty. . . .Number of executions hits doubledigits (21) for first time since capitalpunishment reinstituted.

1987No equal-protection violation oc-curs if death sentences more like-ly with white victims than withblack victims, Supreme Courtrules; 5-4 decision seen as reject-ing last of broad-based challengesto death penalty.

•

1990s Executions,new death sentences increase;Congress limits use of federalhabeas corpus to challengedeath sentences.

1991Supreme Court permits “victim im-pact” statements in capital sentenc-ing hearings.

1993Kirk Bloodworth is first death rowinmate to win release throughDNA testing.

1996Habeas corpus overhaul approvedby Congress in Antiterrorism andEffective Death Penalty Act; deathrow inmates and other state pris-oners limited to a single habeascorpus challenge; federal courts re-quired to defer to state court rul-ings on most issues.

1998Number of executions peaks at 98.

2000s Executions,death sentences slow; public sup-port for death penalty still strong.

2000Gov. George Ryan, R-Ill., declaresmoratorium on executions, citingstudy of wrongful convictions,later commutes all death row in-mates’ sentences to life in prison.

2002Supreme Court bars execution ofmentally retarded offenders.

2005Supreme Court bars death penaltyfor juvenile offenders. . . . Econo-mists’ studies claiming deterrent ef-fect from death penalty disputedin broad review; debate continues.

2007New Jersey abolishes death penalty.

2008Supreme Court rejects challenge tolethal injections; also bars deathpenalty for rape of minor, othernon-homicide crimes. . . . Californiacommission says nearly $100 millionmore needed per year to curedeath penalty backlog, but abolish-ing capital punishment could savenearly that much; two years later,recommendations unacted on.

2009New Mexico abolishes death penalty.. . . Gallup Poll again registersbetter than 2-to-1 public supportfor capital punishment. . . . Numberof death sentences falls to 106,lowest figure since 1976.

2010Death row population stands at3,261, down slightly from previousyear. . . . Executions stand at 45for year in mid-November; raisetotal to 1,233 since 1976.

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in 1987, the court in McCleskey v. Kemprejected a challenge from Georgia thatcontended the death sentence was dis-proportionately imposed for murders inwhich the victim was white. 16

Death Procedures

S upreme Court decisions uphold-ing the death penalty did not elim-

inate legal challenges but only chan-neled them into increasingly narrowquestions about the scope of the deathpenalty and the procedures for im-posing it. As capital trials became more

complex, both the court and Congresssought to speed up post-convictionchallenges with new limits on the useof federal habeas corpus. At the sametime, the advent of DNA testing gavedeath penalty critics a new way toraise doubts about capital convictions.

Despite the crosscurrents, publicopinion remained fairly stable in sup-port of capital punishment, but onlyby a narrow margin when paired withthe alternative of life imprisonmentwithout parole.

The complexity of the bifurcatedcapital trial with separate sentencinghearing stemmed from the SupremeCourt’s decision in 1978 that jurors had

to be free to consider any potentiallymitigating evidence in a defendant’sfavor. The court gave prosecutors acomparable advantage in 1991 with adecision to allow “victim impact” state-ments in the sentencing phases.

Other decisions set some limits ona state’s definition of aggravating fac-tors, requiring some degree of preci-sion in the statutory language. Anoth-er ruling required that jurors be told ofthe alternative of a life-without-parolesentence in states that provided thatoption. Together, the decisions madesentencing hearings longer and moreopen-ended and appellate review moredifficult and less certain. 17


Continued from p. 974

Teresa Lewis left the rear door to her trailer in rural Pittsylva-nia County, Va., unlocked on the evening of Oct. 30, 2002,to allow two hired gunmen to enter and kill her husband

and stepson. Lewis planned to pay the hit men with the $250,000she would collect from the life insurance policy her stepson hadrecently taken out on himself before deploying to active militaryduty. She was the second beneficiary, behind her husband.

Lewis pleaded guilty to capital murder on May 15, 2003,and received a death sentence. She was executed on Sept. 23,2010, but only after her lawyers tried to block the executionon the grounds that her trial counsel failed to introduce evi-dence that Lewis, who had an IQ of 72, was mentally retarded.Just a few months before her crime, the U.S. Supreme Courthad issued a landmark ruling, Atkins v. Virginia, prohibitingthe death penalty for mentally retarded offenders. 1

Eight years after the Atkins decision, the results for pro-tecting intellectually disabled defendants have been mixed. *The Supreme Court cited a three-pronged definition from whatthen was the American Association on Mental Retardation —now the American Association on Intellectual and Develop-mental Disabilities (AAIDD) — but left it to the states to im-plement their own definitions of mental retardation.

“There’s a lack of clarity in the states among what consti-tutes mental retardation,” says Richard Dieter, executive direc-tor of the Death Penalty Information Center, an anti-capital pun-

ishment organization. “There are still people who are arguablymentally retarded but who are still facing executions, eight yearsafter the decision.”

Supporters of capital punishment disagree. “I doubt that thereare very many actually retarded people on death row,” says KentScheidegger, legal director of the Criminal Justice Legal Founda-tion. “In California, with 700 people on death row, you can countthe number of people who are actually retarded on one hand,and they’ve gotten off. There are a whole lot of phony claims.”

The AAIDD standard uses three criteria to define intellectualdisability: an IQ below 70 or as high as 75; limitations in “adap-tive functioning,” such as self-care or social skills; and mani-festing of symptoms before age 18. 2 Most states, including Vir-ginia, have adopted the association’s definition.

The Virginia Supreme Court followed that definition in deny-ing Lewis’ Atkins claim in June 2007. “None of the witnesseswho testified as experts in the fields of psychology and psy-chiatry at the evidentiary hearing determined that Lewis metthe comprehensive statutory definition of mental retardation,”the court wrote. 3 Lewis scored 72 on a state-administered IQtest, but her high adaptive functioning abilities, including grad-uating from high school and earning a nursing certificate, madeit impossible for psychologists to conclude that she really wasintellectually disabled.

James Rocap III, the Washington, D.C., lawyer who repre-sented Lewis in the post-conviction proceeding, says the Virginiacourt ignored the nuances of Lewis’ intellectual disability. “Therehas to be a much higher level of appreciation in courts ofwhat low-level functioning is, even if it’s not specifically mentalretardation,” he says.

Mentally Retarded Defendants Still Face ExecutionEight years after Atkins, critics say the intellectually disabled remain vulnerable.

* Advocacy groups prefer the term “intellectually disabled” to the formerusage, “mentally retarded.” A new federal statute changes the terminolo-gy in existing federal law. Court cases to date use the former term.


The use of federal habeas corpusto challenge state criminal convictionsstemmed from Supreme Court decisionsin the 1950s and ’60s. By the late 1980s,the court began restricting habeas cor-pus somewhat. Congress took overthe effort with a 1996 law appealinglytitled the Antiterrorism and EffectiveDeath Penalty Act.

The habeas corpus portions of thelaw included two major restrictions. In-mates would generally be limited to asingle habeas corpus proceeding broughtwithin one year of the final action ona direct appeal. And federal courts wouldbe required to defer to state court find-ings on constitutional issues unless they

clearly conflicted with establishedSupreme Court precedent. Applyingthose restrictions, however, engenderedcomplex legal challenges that took timeto resolve even if the inmate’s claim ul-timately failed.

Death penalty opponents had longused the risk of a wrongful executionas one of their arguments, but with lim-ited contemporary evidence as sub-stantiation. The advent of DNA testingas forensic evidence beginning in thelate 1980s, however, helped dramatizethe wrongful-conviction issue. In 1993,Kirk Bloodsworth became the firstdeath row inmate to win release throughDNA testing after an analysis of evi-

dence cleared him of the rape-murderof a 9-year-old girl in Maryland eightyears earlier. Today, the Death PenaltyInformation Center says DNA testing hasfigured in 17 out of the 139 exonera-tions it counts since 1973. 18

The “innocence issue” gained suf-ficient force that in Illinois, a pro-deathpenalty Republican governor, GeorgeRyan, declared a moratorium on exe-cutions in 2000 pending a study ofthe state’s procedures. After the com-mission found death sentences im-posed disproportionately on the poorand ethnic or racial minorities, Ryandecided — days before leaving officein January 2003 — to commute the

Terrica Redfield, a staff attorney atthe Southern Human Rights Center inAtlanta, says jurors also need a bet-ter understanding of intellectual dis-ability. “The jurors just don’t under-stand what it means to be mildlyretarded,” Redfield says. “They thinkif you can sell drugs, you’re not men-tally retarded.”

For her part, Margaret Nygren, ex-ecutive director of AAIDD, has con-cerns with legislating the definition atall. “By [freezing] in time a definition,states run into trouble,” says Nygren.“The real challenge of the definition is that scientific under-standing changes over time.”

Some states use just a portion of the AAIDD definition orplace different levels of importance on IQ or adaptive func-tioning abilities. Texas goes as far as to have a separate set ofthe questions, known as the Briseno standard, that ask psy-chologists to determine whether the defendant has demon-strated leadership abilities or planning skills, whether their fam-ilies thought the defendant was mentally retarded duringdevelopment, or whether the defendant can lie. 4

John Blume, a law professor and director of the Death PenaltyProject at Cornell University who has studied implementationof the Atkins decision, says Texas’ definition is inconsistent withthe clinical standard. “There are people being sentenced todeath in Texas where any rational clinician would say the de-fendant is mentally retarded.” 5

The outcome in the Atkins case itself il-lustrates the difficulties of applying the rul-ing. Daryl Atkins, a high school dropoutfrom Hampton, Va., with an IQ of 59, hadbeen sentenced to death in April 1998 afterhis conviction for the carjacking-killing of a21-year-old Air Force mechanic outsideHampton in August 1996. Psychologists gaveconflicting and inconclusive testimony onwhether Atkins was mentally retarded.

Atkins’ case returned to Virginia courtsafter the Supreme Court ruling for a newhearing to determine whether he was men-tally retarded. But the issue was never re-

solved. Instead, evidence emerged that the prosecution had improperlywithheld evidence at the time of his trial. Based on that evidence,York County-Poquoson Circuit Court Judge Prentis Smiley Jr. com-muted Atkins’ sentence on Jan. 16, 2008, to life imprisonment.

— Maggie Clark

1 The citation is 536 U.S. 304 (2002). For an account, see Thomas G. Walker,Eligible for Execution: The Story of the Daryl Atkins Case (2009).2 “Definition of Intellectual Disabilities,” American Association on Intellectualand Developmental Disabilities, www.aamr.org/content_100.cfm?navID=21.3 Lewis v. Warden, Virginia Supreme Court, June 6, 2007, www.courts.state.va.us/opinions/opnscvwp/1042743s.pdf.4 Ex Parte Briseno, Court of Criminal Appeals of Texas, Feb. 11, 2004, www.cca.courts.state.tx.us/opinions/29cs81903a.htm#N_44.5 See John H. Blume, Sherri Lynn Johnson and Christopher Seeds, “An Em-pirical Look at Atkins v. Virginia and Its Application in Capital Cases,” TheTennessee Law Review, April 1, 2009, http://sholarship.law.cornell.edu/facpub/7.

Teresa Lewis was executed on Sept. 23,2010. Her lawyers had argued that hertrial counsel had not introduced

evidence she was mentally retarded.

AP Photo

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sentences of the state’s 156 death rowinmates to life imprisonment.

The Supreme Court returned to broad-ly phrased death penalty cases in threecases in the first decade of the 21st cen-tury. The court in 2002 prohibited theexecution of a mentally retarded offender;three years later, the court similarly pro-hibited the execution of juvenile offenders.Dissenting justices in both cases accusedthe majority of substituting their viewsfor those of legislative bodies.

Despite the criticism, the court in 2008followed the same approach in pro-hibiting the death penalty for rape of aminor. The ruling appeared further tolimit the death penalty to homicides ora few other offenses, including espionage,treason, terrorism or drug-kingpin activ-ity. Despite the controversy, the three

rulings had only limited impact. Each ofthe decisions, in fact, was based on thesmall number of death sentences actu-ally imposed in each category. 19

Beginning in the 1980s, lethal injec-tion began to displace the gas cham-ber as the dominant method of execu-tion. The technique entailed use of threedrugs that in sequence sedated and thenparalyzed the inmate and then broughtabout cardiac arrest. Advanced as bothmore humane and more certain, themethod was nearly universal in deathpenalty states by the early 2000s.

In time, however, lethal injection gen-erated legal challenges and a de factomoratorium after the Supreme Courtagreed in 2007 to resolve the issue ina case brought by two Kentucky in-mates. They claimed that, as applied in

Kentucky, the risk of improper admin-istration of the sedative brought abouta risk of unacceptable pain that wouldamount to cruel and unusual punish-ment. By a 7-2 vote, however, the courtrejected the claim, giving states a greenlight to resume executions thereafter. 20

Death Doubts

D eath penalty critics increasinglyturned to pragmatic arguments

in the 2000s to make their case againstcapital punishment. New studies pub-lished as state and local governmentsfaced budget crunches put the addi-tional costs of capital cases in the tensor even hundreds of millions of dol-lars. Well-documented investigations by


C ameron Todd Willingham was convicted of capital murder,sentenced to death and executed in Texas on Feb. 17, 2004,for the deaths of his three young daughters in a house fire

that a fire marshal said was deliberately set. Now, in a case thathas attracted national attention, a state commission is conducting apolitically charged review of the testimony in the August 1992 trialthat death penalty critics say could effectively show that Texas ex-ecuted an innocent man. 1

The Texas Forensic Science Commission is scheduled tomeet on Nov. 19 to continue reviewing now sharply disputedtestimony by a deputy state fire marshal depicting the Dec. 23,1991, fire at Willingham’s home in the small central Texas townof Corsicana as arson. Manuel Vasquez testified that the pat-tern of the fire indicated the use of a liquid accelerant — suchas the charcoal lighter fluid found on the porch of the home.

Willingham’s three daughters — Amber, 2, and 1-year-oldtwins Karmon and Kameron — perished in the fire. Willing-ham, who said he tried to rescue the girls, suffered burns ofdisputed severity: superficial, according to the prosecution; moreserious, according to the defense and the latter-day critics ofthe trial. His wife, Stacy Kuykendall, was not home at the time.

The prosecution depicted Willingham as an abusive husbandand father who killed the children he had never wanted — atheory sharply challenged at trial and since. Willingham main-tained his innocence and, against his lawyer’s advice, rejected aplea bargain calling for a life prison sentence. He continued tomaintain his innocence until his execution by lethal injection. 2

Shortly before the scheduled execution, Willingham’s lawyersasked the state’s Board of Pardon and Parole for clemencybased on testimony from a national fire expert, Gerald Hurst,sharply challenging Vasquez’s methods in concluding that thefire was deliberately set. Since then, other fire experts havesimilarly disputed Vasquez’s forensic methods.

The controversy went national with the Chicago Tribune’scritical dissection of the trial published within a year of theexecution in December 2004. 3 The story quoted Edward Cheever,a deputy state fire marshal who had assisted in the originalinvestigation, as agreeing that examiners had used methods nolonger accepted as valid. Gov. Rick Perry, who had declinedto intervene before the execution, responded to the increasingcontroversy by supporting legislation in 2005 to create a nine-member state commission to review the use of forensic testi-mony in criminal trials. 4

Four years later, just as the forensic science commission wasabout to take up the Willingham case, Perry abruptly removedthree gubernatorial appointees to the commission on Sept. 30,2009. His three replacements included a strongly conservativedistrict attorney, John Bradley, as chairman. 5

Taking over the Willingham case, Bradley issued a draft re-port in July 2010 essentially rejecting the critique of the forensictestimony and proposing to end the review. Commission mem-bers refused to accept the report in September. The review re-sumed in a meeting on Oct. 15, where tempers flared afterBradley called Willingham “a guilty monster.” In his draft report,

Did Texas Execute an Innocent Man?Experts are reexamining the fire that killed Cameron Willingham’s daughters.


journalists and others pointed to eightexecutions despite strong doubts aboutthe guilt of the condemned inmate.

The pragmatic arguments helpedspur two states, New Jersey and NewMexico, to eliminate their largely unuseddeath penalty laws. The federal govern-ment and some states also passed lawsaimed at guarding against the risk ofwrongful convictions or executions. 21

Polls, however, continued to registermajority support for capital punishment.

Economic costs emerged as part ofthe death penalty debate as early as 1988,when the Sacramento Bee in Californiaestimated the state could save $90 mil-lion by abolishing the death penalty.Five years later, a study led by PhilipCook, a public policy research profes-sor at Duke University in Durham, N.C.,

concluded that North Carolina paid anextra $329,000 for each capital trial.

New studies in each state put high-er price tags on death penalty proce-dures. The California commission in2008 concluded that simply housingthe state’s death row population costan extra $60 million compared to thecost of holding them in conventional,maximum-security facilities. Cook revis-ited the issue in a study published infall 2009 that estimated North Carolinacould save nearly $11 million a year byabolishing capital punishment. 22

Investigative reports by newspapersalso played a part in fortifying claims ofwrongful executions. The Houston Chron-icle, for example, in 2005 cast doubt onthe guilt of Ruben Cantu, executed in1993 for a killing in an attempted rob-

bery in San Antonio eight years earlier.The Chronicle cited a recanting by aneyewitness who said police pressuredhim to identify Cantu along with ad-missions of possible error by the prose-cutor, judge and jury forewoman. A yearlater, the Chicago Tribune cited a dubi-ous identification and inconclusive foren-sic evidence in questioning the guilt ofanother Texas inmate, Carlos DeLuna,executed in 1989 for a fatal stabbing ina convenience store holdup.

Authorities, however, have general-ly defended their actions in the faceof the belated innocence claims. Thenew prosecutor in San Antonio, for ex-ample, reaffirmed Cantu’s guilt after areinvestigation. Similarly, the St. Louisprosecutor’s office frustrated death penal-ty opponents by rejecting after a new

Bradley had said the commission hadno authority to investigate or expressopinions on a defendant’s guilt or in-nocence. 6

In the meantime, Willingham’s fam-ily had initiated an unusual, separateprocedure known as a “court of in-quiry” to challenge the conviction andsentence. A hearing was held beforeTravis County Judge Charlie Baird inAustin on Oct. 14, but a state appealscourt put further proceedings on holdin response to a motion by NavarroCounty District Attorney R. LowellThompson, whose office originallyprosecuted Willingham. 7

With the commission set to reconvene at its regularly scheduledmeeting on Nov. 19, national experts and advocates disagreeabout what the new investigations show. The evidence com-piled since the execution “has led to the inescapable conclusionthat Willingham did not set the fire for which he was executed,”the Innocence Project declares on its website. Kent Scheidegger,legal director of the pro-law enforcement Criminal Justice LegalFoundation in Sacramento, Calif., disagrees. “I don’t think thatwill be definitively proven either way,” Scheidegger says. “Ithink there’s strong reason to believe that he was actually guilty.”

1 For recent comprehensive accounts, see DavidGrann, “Trial by Fire: Did Texas execute an in-nocent man?,” The New Yorker, Sept. 7, 2009, www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann; “Death by Fire,” “Frontline,” Oct. 19,2010, www.pbs.org/wgbh/pages/frontline/death-by-fire/. The website includes the complete pro-gram along with extensive other material. A Wikipediaentry includes citations to other coverage: http://en.wikipedia.org/wiki/Cameron_Todd_Willingham.For an opposite view of the case, see materialson the blog Homicide Survivors (http://homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx).2 The full transcript of the trial is available onthe website of the Innocence Project, the NewYork City-based center that has taken up the case:www.innocenceproject.org/Content/Cameron_Todd_Willingham_Wrongfully_Convicted_and_Executed_in_Texas.php.

3 See Stevie Mills and Maurice Possley, “Man executed on disproved forensics,”Chicago Tribune, Dec. 9, 2004, p. 1; the Tribune has continued extensive cov-erage of the case.4 Texas Code of Criminal Procedure, Article 38.01, http://law.onecle.com/texas/criminal-procedure/38.01.00.html.5 See Christy Hoppe, “Perry ousts officials before arson hearing,” The DallasMorning News, Oct. 1, 2009, p. 1A.6 See Erin Mulvaney, “Leader’s remarks criticized,” The Dallas Morning News,Oct. 16, 2010, p. A2; Jennifer Emily, “Panel bucks chief, rejects arson report,”ibid., Sept. 18, 2010, p. A1. The draft report can be found on the Texas Foren-sic Science Commission’s website: www.fsc.state.tx.us/documents/D_WillinghamRecommendationsfor7.23.10Mtg.pdf.7 See Adam Liptak, “Family’s Effort to Clear Name Frames Debate on Exe-cutions,” The New York Times, Oct. 15, 2010, p. 17.

— Kenneth Jost

Cameron Todd Willingham was convictedof setting a house fire that killed his threedaughters and executed in Texas in 2004.Critics of the arson investigation say he

may be proved innocent.

Texas Moratorium Network

980 CQ Researcher


review claims by the NAACP Legal De-fense Fund that Larry Griffin had beenwrongly convicted and executed in 1995for a drive-by shooting in 1981.

But the Tribune’s 2004 investigationof the execution of a Texas man,Cameron Todd Willingham, for thehouse fire that killed his three chil-dren has prompted a still ongoing re-view of testimony by forensic expertsthat the fire was deliberately set, notaccidental as Willingham claimed. 23

The cost and innocence issues helpedopponents of capital punishment winlegislative passage of death penalty re-peals in New Jersey and New Mexico.New Jersey’s action marked the first leg-islative repeal of capital punishmentsince the Supreme Court upheld reviseddeath penalty laws in 1976. In signingthe bill on Dec. 17, 2007, DemocraticGov. John Corzine said the action wouldend “state-endorsed killing.” The nightbefore, he had commuted the sentencesof eight death row inmates to life im-prisonment.

New Mexico became the second re-peal state when Democratic Gov. BillRichardson, a onetime death penaltysupporter, signed a similar measure onMarch 18, 2009, citing what he called“the reality” that the death penalty sys-tem “can never be perfect.” In two otherstates, Massachusetts and New York, deathpenalty laws were ruled unconstitution-al by state courts, and reenactment mea-sures failed in the legislature. 24

The Death Penalty Information Cen-ter sought to buttress public doubts aboutcapital punishment with the results ofa poll of police chiefs in October 2009that questioned many of the argumentsfor the death penalty. A majority of therandomly selected respondents said thatdebates about the death penalty dis-tracted legislators from focusing on “realsolutions” to crime problems. Only one-third — 37 percent — said they thoughtthe death penalty significantly reducedthe number of homicides.

In surveys conducted the same month,however, the Gallup Organization found

public support for the death penalty stillstrong, with a 2-1 margin (65 percent to31 percent) favoring capital punishmentfor murder. Most respondents (57 per-cent) said capital punishment was ad-ministered fairly, and a near majority(49 percent) said the death penalty wasnot imposed often enough. 25

CURRENTSITUATIONPaying for Lawyers

T wo Southern states are beingchallenged in court to provide bet-

ter representation for capital defen-dants or death row inmates throughlegal offices that critics say the states,Georgia and Mississippi, have system-atically underfunded.

Meanwhile, death row inmates in NorthCarolina are invoking a one-year-old statelaw to try to persuade courts to reducetheir sentences to life imprisonment be-cause of alleged racial bias in their orig-inal trials. They are supporting their pleaswith a study by two Michigan State Uni-versity law professors that shows prose-cutors are more than twice as likely tostrike African-Americans as whites fromserving on capital juries.

In Georgia, Republican Gov. SonnyPerdue is considering a request by thestate’s public defender system officefor a special legislative session to ad-dress funding problems that date fromthe agency’s $2 million defense of BrianNichols for the deadly shootings in theFulton County Courthouse in 2005. 26

The state’s Public Defender Coun-cil voted 7-4 in October to request thespecial session after members of the12-lawyer Georgia Capital DefenderOffice testified they were unable to pro-vide adequate representation for capi-tal defendants assigned to the office.

Georgia created a statewide publicdefender system with the separate cap-ital defender office in 2003 to try toremedy the underrepresentation of in-digent defendants, especially in deathpenalty cases. “It was a great structur-al improvement,” says Maher, of theABA’s Death Penalty RepresentationProject. But the office was drained fi-nancially by having to spend more than$2 million to defend Nichols in the2005 courthouse shooting case.

The office has also been pinched bythe legislature’s siphoning off funds fromcourt fees and surcharges supposedlydedicated to the defender system. Withthe office short of staff and short offunds to pay private attorneys, at leasttwo defendants have been forced to ac-cept representation by defenders whosay they cannot handle the cases. Bothcases have been delayed while defen-dants challenged the moves in court.“The system has collapsed,” Maher says.

Perdue’s office was initially unrecep-tive to the plea for a special legislativesession. Bert Brantley, a spokesman forthe Republican chief executive, notedthat the cost of a special session “wouldlikely exceed the amount the councilwould request, much less receive.”

Funding and other issues have simi-larly bedeviled Mississippi’s Office ofPost Conviction Capital Counsel since itscreation in 2000 after a state SupremeCourt ruling guaranteeing death row in-mates the right to a lawyer in challengingtheir convictions or sentences. 27

As in Georgia, Maher calls the cre-ation of the new office “a structural im-provement” but says it immediately en-countered problems. “The state did notfund the office, did not staff the officeand interfered with the director of theoffice,” Maher says.

The law creating the office providedfor the director to be appointed by thestate’s chief justice. The first director waseffectively forced to resign after complainingof understaffing, according to a petitionnow pending with the Mississippi Supreme

Continued on p. 982

no


At Issue:Should capital punishment be abolished in the United States?yes

yesRICHARD C. DIETEREXECUTIVE DIRECTOR, DEATH PENALTYINFORMATION CENTER

WRITTEN FOR CQ RESEARCHER, NOVEMBER 2010

i t is past time to end the free ride that the death penaltyhas been given for years and start to examine it like anyother government program in terms of costs and returns.

Per person, the death penalty is probably one of the mostexpensive state programs, and it produces no measurable gainin public safety. While states were spending millions of dollarson a single capital case, the average police budget had to becut by 7 percent this year. States are letting prisoners go early,curtailing ambulance services and closing schools. Programsthat clearly benefit the safety of society are being slashed be-cause of the budget crisis, but death penalty expenditurescontinue to rise.

Some say you can’t put a price on justice, but you can puta price on programs that actually lower crime. Cities like NewYork and Washington have been enormously successful in cut-ting murder rates without the death penalty through programslike community policing and new technologies that focus onhigh-crime areas. States have a choice: They can execute per-haps one person per year at a cost of $10 million, or use thesame money to hire 200 police officers.

The death penalty is not needed and is not regularly car-ried out in most of the country. Over 80 percent of our exe-cutions are in the South, mostly in a few states. Over 99 per-cent of murders do not result in an execution. Those casesthat do end in a death sentence are often overturned and,when done over with a fair trial, frequently result in a lifesentence anyway.

The costs of the death penalty are not only measured indollars spent. Executions can’t be undone, and they risk inno-cent lives. More than 135 people have been freed from deathrow and exonerated since the death penalty was reinstated.The death penalty divides the community by distinguishingbetween “worthy” and “unworthy” victims, with the differenceoften falling along racial and economic lines.

The selection of who lives and who dies cannot be rationallyexplained. Just this year, an organized-crime boss got off withtime served after seven years for 11 murders, while a grand-mother with a 72 I.Q. was executed. Replacing the deathpenalty with a maximum sentence of life in prison without pa-role, and using the resources saved to reduce crime, is simply amatter of responsible government.no

KENT SCHEIDEGGERLEGAL DIRECTOR, CRIMINAL JUSTICELEGAL FOUNDATION

WRITTEN FOR CQ RESEARCHER, NOVEMBER 2010

t he American people remain solidly in support of capitalpunishment. Three-quarters of the people believe it shouldbe imposed at least as often as it is at present, according

to a recent Gallup Poll, and this number has remained rocksteady over the 10 years Gallup has been asking the question.The horrible murders in Connecticut of Jennifer Hawke-Petit andher daughters illustrate why. For some crimes, anything less is agross miscarriage of justice.

In addition, the preponderance of evidence supports whatcommon sense has always told us — the death penalty has adeterrent effect and saves innocent lives when it is actuallyenforced. The studies showing deterrence have been criticized,but the criticisms have been answered, and their conclusionstill stands.

Having failed to convince the people of their position ongrounds of justice, the opponents of the death penalty arenow resorting to a cost argument. The death penalty takes solong and costs so much for the few executions actually car-ried out, the argument goes, that we should simply throw inthe towel and give up, sacrificing justice to expediency.

The argument assumes that long delays and exorbitantcosts are an inherent part of the death penalty. They are not.Much of the delay can be eliminated with the proper reforms,and much of the cost can be cut at the same time. For exam-ple, John Allen Muhammad, the D.C. Sniper, was executedless than six years from the date of sentence. That is not un-common in Virginia, a state that has taken reform of its deathpenalty reviews seriously. Capital cases are complex, to besure, but this case was as complex as they come, and it wasthoroughly reviewed in a quarter of the time a capital casetakes in California.

Most of the delay and expense reviewing capital cases hasnothing to do with questions of actual guilt or innocence. It isthe choice of sentence for a clearly guilty murderer that is liti-gated over and over in court after court. We can eliminatemuch expense and delay by having only one full review forthe penalty and limiting all further reviews to claims with asubstantial bearing on actual innocence.

As President Bill Clinton said in a different context manyyears ago, “Mend it; don’t end it.”

982 CQ Researcher

Court filed by lawyers from the officerepresenting 15 inmates whose post-conviction challenges were rejected. Someof the post-conviction pleas failed becauseof missed deadlines due to understaffing,according to the petition.

The law was amended in 2009 to givethe governor the power to appoint thedirector, but funding and staffing prob-lems persist, according to the petition,originally filed before a trial judge in Jack-son, the state capital. By assigning theoffice more cases than the staff can com-petently represent, thepetition claims, thestate has acted “to neu-tralize [the inmates’]post-conviction rep-resentation.”

The state won aninitial ruling in Mayto dismiss the peti-tion, and the inmatesappealed to the statehigh court. The stateattorney general’s of-fice again moved todismiss the case, ar-guing in part that itamounted to an ef-fort to relitigatepost-conviction chal-lenges already re-jected.

In North Carolina, 152 of the state’s159 death row inmates filed biasclaims by the August deadline set underthe state’s Racial Justice Act, enactedin 2009. The law requires judges toreduce a death sentence to life im-prisonment if race was “a significantfactor” in the death sentence.

Lawyers from the Capital DefenseLitigation Group in Durham based thepleas in part on a study by BarbaraO’Brien and Catherine Grosso, pro-fessors at the Michigan State Univer-sity College of Law. Among the 159death row inmates, the professorsfound, 31 were tried by all-white ju-ries and another 38 had only one per-

son of color on the jury. The studyalso found that a defendant was morethan twice as likely to be sentencedto death in cases with at least onewhite victim than if the case did notinvolve a white victim.

The state’s prosecutors opposed pas-sage of the law, but are now voicingconfidence the racial bias claims willbe rejected. “I feel very confident thatrace has not played a role in impos-ing the death penalty,” Peg Dorer, di-rector of the North Carolina Confer-ence of District Attorneys, said. 28

Debating Changes?

D eath penalty supporters look toRepublican gains in gubernatorial

and legislative elections to boost effortsto streamline capital punishment, butopponents expect to continue to arguecost and other issues to try to narrowor abolish the practice in some states.

The Republican gains — six gover-norships and at least 680 state legisla-tive seats — are seen as generallystrengthening pro-law enforcement sen-timents in state capitals even if theGOP gains came from exploiting eco-nomic issues, not law and order. Ex-cept for some limited clashes in Cal-

ifornia and Connecticut, capital pun-ishment went all but unaddressed instate races. “It was a non-issue,” saysBurns with the national district attor-neys’ group.

Even so, both Burns and the Crimi-nal Justice Legal Foundation’s Scheideg-ger say the election results improve theprospects for some pro-death penalty re-forms. “Generally speaking, we’re goingto have legislatures across the countrythat are more favorable to the deathpenalty,” says Scheidegger. “We’ll have abetter chance to get procedural reforms

enacted, and the otherside will have less chancefor their proposals.”

Burns says he expectslegislation in several statesaimed at reducing thetime from imposition ofa death sentence to theactual execution. But healso envisions possibleproposals in some states“to take the death penal-ty off the table if therecan’t be an appropriateway to carry it out.”

From the oppositeperspective, Dieter withthe Death Penalty In-formation Center em-phasizes that voterselected death penalty

opponents and critics in some statesdespite the Republican tide. “Theseelections showed that voters do notvote solely or even principally on thedeath penalty,” Dieter says. Capital pun-ishment, he argues, “is not the thirdrail” of state politics.

In fact, Democrats Jerry Brown inCalifornia and Daniel Malloy in Con-necticut won gubernatorial contests de-spite criticism of their death penaltyviews by their GOP opponents. (Mal-loy favors abolishing the death penal-ty; Brown has opposed it in the past,but enforced the law as state attorneygeneral.) In a third race, DemocratMartin O’Malley was reelected governor


Continued from p. 980

Anti-death penalty activist Delia Perez Meyer, whose brother has beenon death row in Texas for 11 years, demonstrates at the U.S. Supreme

Court in June 2009. Meyer joined the anti-capital punishmentmovement after her brother, Louis Castro Perez, was falsely accused of murdering three of his best friends.

AFP

/Getty Images/Tim

Sloan


in Maryland after a campaign with littlemention of his moratorium on deathsentences in the state. And Kansanselected a Republican governor, SamBrownback, who opposes the deathpenalty.

Dieter says death penalty opponentswill continue to argue against capitalpunishment on economic grounds. Thedeath penalty is “costing a largeamount,” but “not giving the publicsafety,” Dieter says. “That’s a programthat any state official is going to lookat closely.”

The cost issue was an importantfactor in New Mexico’s decision toabolish the death penalty in 2009. Italso figured in abolition efforts thatpassed in one but not both legislativechambers in Colorado, Montana andNew Hampshire, according to SarahHammond, director of the criminal jus-tice program at the National Confer-ence of State Legislatures in Denver.“We’re seeing states focus more on itin terms of economic issues insteadof emotional issues,” she says.

Apart from New Mexico’s abolitionbill, the most important death penal-ty legislation from the previous two-year cycle was North Carolina’s RacialJustice Act, which requires commut-ing a death sentence if racial bias isshown to be “a significant factor” inthe sentence. Similar measures wereconsidered but not enacted in otherstates. Kentucky is the only other statewith a similar law, but it has gonelargely unused because it provides forchallenges before trial instead of aftera verdict.

Other new death penalty laws ad-dressed narrow issues. Florida madeit a capital offense for someone sub-ject to a domestic violence protectiveorder to murder the person who ob-tained the order. Virginia provided thedeath penalty for the killing of fire-fighters or auxiliary police officers.Oklahoma gave corrections officialsgreater discretion in choice of drugsfor lethal injections. 29

Burns and Scheidegger both saypublic discontent with the protracteddelays after imposition of a death sen-tence will aid legislators in pushingstreamlining proposals. “Everyone agreesthe present system is unacceptable,”Scheidegger says.

“We’re swinging back to an envi-ronment where legislators will be re-ceptive to the argument that if thedeath penalty is obstructed, we shouldget rid of the obstructions instead ofgetting rid of the death penalty.” Schei-degger says.

But death penalty expert Streibdoubts that efforts to speed executionswill succeed. “If we are concernedabout catching mistakes, then we wantto be very, very careful,” says Streib.“I don’t see us changing that.”

OUTLOOK‘Tinkering’ With Death

I n the three years since the killingsof his wife and two daughters, Dr.

William Petit has unreservedly calledfor the death penalty for the two menaccused of the slayings: Steven Hayesand Joshua Komisarjevsky. But as hespoke on the courthouse steps afterHayes’ death sentence on Nov. 8, Petitbristled at the notion that the decisioncould bring “closure” for him.

“I don’t think there’s ever closure.I think whoever came up with thatconcept is an imbecile, whoever theyare,” Petit said with television camerasrolling. The killings had left “a holewith jagged edges,” he explained, “andover time, the edges may smooth outa little bit, but the hole in your heart,the hole in your soul is still there, sothere’s never closure.”

Hayes is due to be formally sen-tenced on Dec. 2. Co-defendantKomisarjevsky faces trial early in 2011.

But for either man, an execution —if ever carried out — likely lies yearsin the future, after a long course ofappeals and post-conviction challenges.

The delays, often stretching overdecades, frustrate death penalty sup-porters and anger many in the pub-lic. “It makes a mockery of the sys-tem,” says Burns with the districtattorneys’ group.

Delay, however, is built into the sys-tem — from the open-ended sentencinghearing required under Supreme Courtprecedent to the full round of appealsand state and federal post-convictionchallenges available to any defendant.And an adversary system premised onzealous legal representation for those ac-cused of crimes can be rushed only sofar. “I don’t see death penalty attorneystrying to speed up the system,” says lawprofessor Streib. “They’re trying to keeptheir clients alive as long as possible.”

Law enforcement advocates still ex-pect procedural obstacles to be sur-mounted over time. “Over the long term,as deterrence becomes clear, we willeventually get to the point of break-ing down those barriers,” Scheideggerof the Criminal Justice Legal Founda-tion says.

Death penalty opponents see anopposite trend. “The momentum is infavor of abolition,” says Redfield, rep-resenting the criminal defense lawyers’group. “The more that people thinkabout it, the more they will see thisis not in anybody’s interest. It coststoo much. It doesn’t deter anybody.”

Supreme Court Justice Stevens re-flected that latter view when he calledfor reconsidering the death penalty inhis separate opinion in the lethal injec-tion case in 2008. A decade-and-a-halfearlier, another liberal justice, Harry A.Blackmun, had similarly renounced thedeath penalty as his time on the courtwas about to end.

“From this day forward, I shall nolonger tinker with the machinery ofdeath,” Blackmun wrote in dissenting fromthe court’s otherwise routine denial of

984 CQ Researcher


review in a capital case in 1994. De-spite two decades of efforts by thecourt to ensure fairness, Blackmunwrote, “the death penalty remains fraughtwith arbitrariness, discrimination . . .and mistake.” 30

In both of the cases, Justice Scaliadisagreed, mocking his colleagues forsubstituting their view for the popu-lar will. “Convictions in opposition tothe death penalty are often passion-ate and deeply held,” Scalia wrote inthe 1994 case. “That would be no ex-cuse for reading them into a Consti-tution that does not contain them,even if they represented the convic-tions of a majority of Americans. Muchless is there any excuse for using thatcourse to thrust a minority’s viewsupon the people.” 31

However emotional, this debate ismore theoretical than real in much ofthe country. Since 1976, three states— Texas, Virginia and Oklahoma —have accounted for more than half ofthe executions in the United States,while 16 states and the District of Co-lumbia have carried out none.

Within states, the concentration ofdeath sentences is even greater, ac-cording to data compiled by FrankBaumgartner, an anti-death penaltyprofessor of political science at the Uni-versity of North Carolina-Chapel Hill.Out of 3,146 counties, only 454 —roughly one-seventh — have carriedout executions. Harris County (Hous-ton) alone accounts for 115 executions,more than any state except Texas. 32

Scheidegger attributes the geographicconcentration in part to “abolitionist”sentiment on courts in some states andfederal circuits that results in rulings ef-fectively thwarting death penalty laws.Whatever the cause, death penalty op-ponents say the pattern shows that cap-ital punishment remains as arbitrary asthe Supreme Court found it to be inits 1972 Furman decision striking downall existing death sentences.

For his part, Streib expects deathsentences to continue to decline evenif polls continue to show majority sup-port for the death penalty in theory.He notes that polls also show a nearmajority would be “satisfied” with lifeimprisonment without parole in whatare now capital cases.

More broadly, Streib calls the de-bate “fairly irrelevant” to the criminaljustice system. “It’s less than one-halfof 1 percent of all people arrested formurder who are executed,” Streib says.“It’s a great debating point, but it isjust irrelevant in the whole criminaljustice process.”

Notes

1 Background drawn in part from ongoing cov-erage by William Glaberson in The New YorkTimes, including these stories: “Jurors Vote forDeath in Connecticut Trial,” Nov. 9, 2010, p. A1;and “Man Is Found Guilty on 16 Counts in Con-necticut Triple-Murder Trial,” Oct. 6, 2010, p. A25.2 Quoted in William Glaberson, “Cheshire Case

Jurors Speak on Death Verdict,” The New YorkTimes, Nov. 9, 2010, p. A27. For recent CQ Re-searcher coverage, see these reports by KennethJost: “Death Penalty Controversies,” Sept. 23, 2005,pp. 785-808; “Rethinking the Death Penalty,”Nov. 16, 2001, pp. 945-968.3 See “Death Sentences and Execution, 2009,”Amnesty International, www.amnesty.org/en/library/asset/ACT50/001/2010/en/17348b70-3fc7-40b2-a258-af92778c73e5/act500012010en.pdf.4 See David Grann, “Trial by Fire: Did Texasexecute an innocent man?” The New Yorker,Sept. 7, 2009, www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann.5 The decision is Baze v. Rees, 553 U.S. 535(2008), www.supremecourt.gov/opinions/07pdf/07-5439.pdf.6 Stuart Banner, The Death Penalty: An Amer-ican History (2002), p. 114.7 For a good journalistic overview of thescholarship, see Adam Liptak, “Does DeathPenalty Save Lives? A New Debate,” The NewYork Times, Nov. 18, 2007, sec. 1, p. 1, www.nytimes.com/2007/11/18/us/18deter.html?pagewanted=2&_r=1&sq=does%20the%20death%20penalty%20save%20lives&st=cse&scp=1. Thewebsite version includes hyperlinks to sev-eral of the major articles. Some backgrounddrawn from article.8 Banner, op. cit., pp. 279-281.9 John Donohue and Justin J. Wolfers, “TheDeath Penalty: No Evidence for Deterrence,”in Joseph E. Stiglitz, et al. (eds.), The Economists’Voice: Top Economists Take On Today’s Problems(2008), p. 255.10 “Report and Recommendations on the Ad-ministration of the Death Penalty in California,”California Commission on the Fair Administra-tion of Justice, June 30, 2008, www.ccfaj.org/documents/reports/dp/official/FINAL%20REPORT%20DEATH%20PENALTY.pdf. For coverage, seeMaura Dolan, “Death row report sees failedsystem,” Los Angeles Times, July 1, 2008, p. A1.11 The case is Wiggins v. Smith, 539 U.S. 510(2003). Bruck is quoted in Charles Lane, “DeathPenalty of Md. Man Is Overturned,” TheWashington Post, June 27, 2003, p. A1.12 The decision is State v. Gamble, Ala. Ct. Crim.Apps., Oct. 1, 2010, www.schr.org/files/post/Gamble%20CCA%20Rule%2032%20Opinion%20affirming%20IAC%2010-01-10.pdf. Lawyers for theSouthern Center for Human Rights representedGamble. See “SCHR Wins Reversal of Death Sen-tence for Alabama Prisoner LaSamuel Gamble,”Oct. 18, 2010, www.schr.org/action/resources/schr_wins_reversal_of_death_sentence_for_alabama_death_row_prisoner_lasamuel_gamble.

About the AuthorAssociate Editor Kenneth Jost graduated from HarvardCollege and Georgetown University Law Center. He is theauthor of the Supreme Court Yearbook and editor of TheSupreme Court from A to Z (both CQ Press). He was a mem-ber of the CQ Researcher team that won the American BarAssociation’s 2002 Silver Gavel Award. His previous reportsinclude “Death Penalty Controversies” (2005) and “Rethinkingthe Death Penalty” (2001). He is also author of the blogJost on Justice (http://jostonjustice.blogspot.com).


13 For a comprehensive history, see Banner, op.cit.Historical overviews can be found in MatthewB. Robinson, Death Nation: The Experts ExplainAmerican Capital Punishment (2008), pp. 14-51;Victor L. Streib, Death Penalty in a Nutshell(3d ed.) (2008), pp. 1-8.14 The citation is 408 U.S. 238 (1972). For anoverview of the Supreme Court’s death penaltycases, see David Savage, CQ Press Guide to theU.S. Supreme Court (5th ed.) (2010), Vol. 1, pp.764-773.15 The citation is 428 U.S. 153 (1976). Thedecisions striking down mandatory deathpenalty laws are Woodson v. North Carolina,428 U.S. 280 (1976), and Roberts v. Louisiana,428 U.S. 325 (1976).16 The citation is 481 U.S. 279 (1987). Namesand citations for other cases can be found inSavage, op. cit.17 The major decisions are Lockett v. Ohio, 438U.S. 586 (1978) (mitigating evidence), and Paynev. Tennessee, 501 U.S. 808 (1991) (victim im-pact statements).18 For background, see Kenneth Jost, “DNADatabases,” CQ Researcher, May 28, 1999, pp.449-472.19 The decisions are Kennedy v. Louisiana, 554U.S. -- - (2008); Roper v. Simmons, 543 U.S.551 (2005); Atkins v. Virginia, 536 U.S. 304(2002). For accounts of each case, see the re-spective yearly editions of Kenneth Jost, TheSupreme Court Yearbook.20 The decision is Baze v. Rees, op. cit. Foran account, see Jost, The Supreme Court Year-book 2007-2008.21 For background, see Steve Weinberg, “Wrong-ful Convictions,” CQ Researcher, April 17, 2009,pp. 345-372.22 For the recent studies, see California Com-mission, op. cit.; Philip J. Cook, “Potential Sav-ings from Abolition of the Death Penalty inNorth Carolina,” American Law and EconomicsReview, Vol. 11, Issue 2 (2009), pp. 498-529.23 For original story reopening case, see StevieMills and Maurice Possley, “Man executed ondisproved forensics,” Chicago Tribune, Dec. 9,2004, p. 1.24 Corzine quoted in Deborah Howlett,“Death row disappears as Corzine signs bill,”The (Newark) Star-Ledger, Dec. 18, 2007, p. 1;Richardson quoted in “Richardson Signs BillAbolishing Death Penalty,” Albuquerque Jour-nal, March 13, 2009, p. 1.25 See Death Penalty Information Center, “Smarton Crime: Reconsidering the Death Penaltyin a Time of Economic Crisis,” October 2009,www.deathpenaltyinfo.org/documents/Costs

RptFinal.pdf; Gallup, “Death Penalty,” www.gallup.com/poll/1606/death-penalty.aspx (visitedNov. 5, 2010).26 For coverage, see Bill Rankin, “Defenderagency seeks special session for funds,” The At-lanta Journal-Constitution, Nov. 2, 2010, p. 1B.Some background drawn from Adam Liptak,“Poor Defendants and a Strained State BudgetCross Paths in Georgia,” The New York Times,July 6, 2010, p. A13. The Supreme Court de-clined to hear the case referenced in Liptak’sstory. See also Andria Simmons, “A murder trialcaught up in a legal quandary,” The AtlantaJournal-Constitution, Oct. 9, 2010, p. 5B.27 For coverage, see Jimmie E. Gates, “State’slegal help for death row inmates called afailure,” The Clarion-Ledger (Jackson, Miss.),Oct. 19, 2010.28 Quoted in Nathan Koppel, “Death Penal-

ty Goes on Trial in North Carolina,” The WallStreet Journal, Sept. 20, 2010, p. A6.29 See Death Penalty Information Center, “Re-cent Legislative Activity,” www.deathpenaltyinfo.org/recent-legislative-activity; National Con-ference of State Legislatures, “Samples of Re-cently Enacted Capital Punishment Legislation,”www.ncsl.org/default.aspx?tabid=21019.30 See Collins v. Collins, 510 U.S. 1114 (1994)(Blackmun, J., dissenting from denial of cer-tiorari). For coverage, see Linda Greenhouse,“Death Penalty Is Renounced by Blackmun,”The New York Times, Feb. 23, 1994, p. A1.31 Collins v. Collins, op. cit. (Scalia, J., con-curring).32 Frank R. Baumgartner, “The Geography ofthe Death Penalty,” Oct. 17, 2010, www.unc.edu/~fbaum/Innocence/NC/Baumgartner-geography-of-capital-punishment-oct-17-2010.pdf.

FOR MORE INFORMATIONAmerican Association of Intellectual and Developmental Disabilities, 501 Third St.,N.W., Suite 200, Washington, DC 20001; (202) 387-1968; www.aamr.org. Promotesprogressive policies for people with intellectual and developmental disabilities.

American Bar Association Death Penalty Representation Project, 740 15thSt., N.W., Washington, DC 20005; (202) 662-1734; new.abanet.org/DeathPenalty/RepresentationProject. Recruits competent volunteer attorneys for death row inmates.

Criminal Justice Legal Foundation, P.O. Box 1199, Sacramento, CA 95816;www.cjlf.org; (916) 446-0345. Public interest law organization seeking legal balancebetween crime victims and the criminally accused.

Death Penalty Information Center, 1101 Vermont Ave., N.W., Suite 701, Wash-ington, DC 20005; (202) 289-2275; www.deathpenaltyinfo.org. Offers analysis andinformation on issues concerning capital punishment.

Innocence Project, 100 Fifth Ave., Third Floor, New York, NY 10011; (212) 364-5340;www.innocenceproject.org. Litigation and public policy organization seeking exonerationfor the wrongfully convicted.

National Association of Criminal Defense Lawyers, 1150 18th St., N.W., Suite 950,Washington, DC 20036; (202) 872-8600; www.criminaljustice.org. Works with criminaldefense lawyers to ensure justice and due process for all those accused.

National Conference of State Legislatures, 444 N. Capitol St., Suite 515, Wash-ington, DC 20001; (202) 624-5400; www.ncsl.org. Provides research and technicalassistance to state legislators and their staffs.

National District Attorneys’ Association, 99 Canal Center Plaza, Suite 510,Alexandria, VA 22314; (703) 549-9222; www.ndaa.org. Professional organizationrepresenting criminal prosecutors around the world.

Southern Human Rights Center, 83 Poplar St., N.W., Atlanta, GA 30303; (404) 688-1202; www.schr.org. Provides legal representation for people facing the death penalty.

FOR MORE INFORMATION

986 CQ Researcher

Selected Sources

Bibliography

Books

Acker, James R., Robert M. Bohm and Charles S. Lanier(eds.), America’s Experiment with Capital Punishment: Re-flections on the Past, Present, and Future of the UltimatePenal Sanction (2d ed.), Carolina Academic Press, 2003.The book opens with the editors’ overview followed by

essays by more than 30 authors on public opinion and pol-icy, fairness and effectiveness, administration of the deathpenalty and death row issues. Acker is a professor at theUniversity of Albany’s School of Criminal Justice, Bohm aprofessor of criminal justice and legal studies at the Univer-sity of Central Florida, Lanier a former co-director of theUniversity of Albany’s Capital Punishment Research Initiative.

Banner, Stuart, The Death Penalty: An American History,Harvard University Press, 2002.A professor at UCLA Law School traces with relative objectiv-

ity the legal, political and cultural history of the death penaltythrough the end of the 20th century. For a longer history by aconfirmed opponent, see Hugo Bedau, The Death Penalty inAmerica (Oxford University Press, 4th ed., 1997).

Baumgartner, Frank R.; Suzanna [Linn] DeBoef, and AmberE. Boydstun, The Decline of the Death Penalty and theDiscovery of Innocence, Cambridge University Press, 2008.The authors trace and analyze the “new” innocence argu-

ment against the death penalty, which they say has been “soeffective in changing U.S. public opinion and public policy.”Baumgartner is now a professor of political science at theUniversity of North Carolina-Chapel Hill; Linn a professor atPennsylvania State University, Boydstun an assistant professorat the University of California-Davis.

Parrish, Michael E., The Supreme Court and CapitalPunishment: Judging Death, CQ Press, 2010.A professor of history at the University of California-San

Diego uses excerpts from Supreme Court decisions and otherdocumentary materials to trace the history of the court’sdeath penalty jurisprudence from its limited role before the20th century through the Due Process Revolution, abolitionand reinstatement.

Rivkind, Nina, and Steven F. Shatz, Cases and Materialson the Death Penalty (3d ed.), West Group, 2009.The law school casebook comprehensively covers death

penalty law, primarily through Supreme Court decisions fromthe early 20th century to the present day.

Streib, Victor L., Death Penalty in a Nutshell (3d ed.),Thomson/West, 2008.A professor at Ohio Northern University’s Petit College of Law

opens with a historical overview followed by chapters on

substantive criminal law, trial procedures, post-trial proceduresand special issues, including racial bias.

Walker, Thomas G., Eligible for Execution: The Story ofthe Daryl Atkins Case, CQ Press, 2009.A political science professor at Emory University chronicles

the case that led to the Supreme Court’s decision prohibitingexecution of offenders with intellectual disabilities. A com-panion website (http://walker.cqpress.com) includes biblio-graphic information and links to case documents and com-mentary discussing the decision.

Articles

Grann, David, “Trial by Fire: Did Texas execute an innocentman?”The New Yorker, Sept. 9, 2009, www.newyorker.com/reporting/2009/09/07/090907fa_fact_grann.The article critically dissects the conviction and death sen-

tence received by Cameron Todd Willingham for the deathsof his three young children in a house fire deemed to havebeen deliberately set based on what is now disputed forensictestimony. For an opposite view of the case, see materials onthe blog Homicide Survivors (http://homicidesurvivors.com/categories/Cameron%20Todd%20Willingham.aspx).

On the Web

The Death Penalty Information Center, which op-poses capital punishment, maintains a comprehensive data-base with information on executions in the United Statessince 1976, methods of execution, demographics of the ex-ecuted and state-by-state counts (www.deathpenaltyinfo.org/executions). The data are generally accepted as au-thoritative except for the center’s compilation of death-rowinmates described as “exonerated” because of reversals oftheir sentences. The center updates the site regularly.The Criminal Justice Legal Foundation lists a variety

of resources from a pro-death penalty perspective on apage on its website (www.cjlf.org/deathpenalty/DPinformation.htm). The materials include a critique written in2001 of the Death Penalty Information Center’s “innocence”list. The National District Attorneys Association pub-lishes a monthly compilation of news clips of interest toprosecutors, including death-penalty developments(www.ndaa.org/).The American Bar Association Death Penalty Rep-resentation Project site includes extensive resources per-taining to the representation of capital defendants anddeath row inmates (http://new.abanet.org/DeathPenalty/RepresentationProject/Pages/Resources.aspx). The sitealso includes links to other organizations that either opposecapital punishment or are critical of the death penalty asimplemented in the United States.


Costs

“Debating the Cost of Capital Punishment,” Idaho StateJournal, Jan. 31, 2010, p. H6.Many cash-strapped states are reconsidering the high costs

of sentencing prisoners to the death penalty.

Mintz, Charlie, “Are Capital Punishment’s Financial CostsWorth It?” East Bay (California) Express, Aug. 18, 2010.A new study suggests that the administration of the death

penalty is far more expensive than life in prison.

Wilson, Betsy, “Illinois Can’t Afford the Costs,” St. LouisPost-Dispatch, Jan. 29, 2010, p. A15.Illinois taxpayers derive no benefit from the state spending

millions of dollars annually on the death penalty.

Young, JoAnne, “Death Penalty Costs Debated,” Lincoln(Nebraska) Journal Star, Jan. 21, 2010, p. B1.Nebraska state senators have rejected a proposal to determine

the costs of carrying out the death penalty in the state.

Deterrence

Garland, David, “Five Myths About the Death Penalty,”St. Paul (Minnesota) Pioneer Press, July 29, 2010.The fact that many prisoners on death row wait for as

long as 30 years before being executed does not make forsure or swift deterrence.

MacQuarrie, Brian, “N.H. Trial Fuels Death Penalty Debate,”The Boston Globe, Nov. 14, 2010, p. A1.A New Hampshire state representative says the death penalty

might deter criminals who take time to plan their actions.

Romboy, Dennis, “Does the Death Penalty Deter?”Deseret(Utah) Morning News, June 11, 2010.There is no clear-cut answer as to whether the death penalty

deters someone from killing someone else.

Legal Representation

Bath, Alison, “Louisiana Death Penalty: An Eye for anEye or Ineffective?” The Times (Louisiana), Dec. 3, 2009.More qualified legal representation for Louisiana death row

inmates has contributed to an increase in exonerations andsentence reversals.

Bluestein, Greg, “Ga. Capital Cases End Up in US SupremeCourt,” The Boston Globe, Sept. 18, 2010, p. A12.Prosecutors admit that a capital defendant in Georgia was

limited in his legal representation due to a funding short-fall.

Lynch, John, “Public Defender: Paying Private Lawyer FloutsLaw,” Arkansas Democrat-Gazette, March 13, 2010.The Arkansas state legislature has created a public defender

commission to provide quality control over attorneys ap-pointed to defend those facing capital crimes.

Life Without Parole

“Fewer Death Sentences in Alabama, Nation,”Birmingham(Alabama) News, Jan. 5, 2010, p. 1A.More and more juries are viewing life without parole as

sufficient punishment for capital crimes.

Batheja, Aman, “Death Sentences Have Dropped SharplyAfter Life Without Parole Became Possible,” Fort Worth(Texas) Star-Telegram, Nov. 15, 2009, p. B1.More Texas juries are waiving the death penalty since life

without parole became an option in 2005.

Coolidge, Sharon, and Jon Craig, “Board Votes for Mercyfor Killer,” Cincinnati Enquirer, May 19, 2010.The Ohio Parole Board has recommended life without pa-

role for a man convicted of fatally beating his on-again, off-again girlfriend.

Egelko, Bob, “Support Remains Strong for Capital Pun-ishment,” The San Francisco Chronicle, July 22, 2010,p. C1.Californians maintain solid support for the death penalty

when it comes to especially heinous crimes, but they are di-vided on whether life in prison without parole is a better op-tion for most first-degree murder.

The Next Step:Additional Articles from Current Periodicals

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CQ Researcher, 11, 945-968.

CHICAGO STYLEJost, Kenneth. “Rethinking the Death Penalty.” CQ Researcher,

November 16, 2001, 945-968.

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CQR Death Penalty Debates - Frank Baumgartner · The death sentence given to Steven Hayes on Nov. 8...

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Transcript of CQR Death Penalty Debates - Frank Baumgartner · The death sentence given to Steven Hayes on Nov. 8...