History of the Problem
A landmark study of capital cases from 1973 through 1995 revealed that in seven out of every ten cases that were fully reviewed, courts found serious, reversible error.2 Even after state courts reversed 47% of the capital convictions due to these errors, federal courts found serious error in 40% of the remaining death sentences.3 The most common errors prompting reversal of death sentences were “egregiously incompetent defense lawyers” and suppression of exculpatory evidence by prosecutors or police.4 At the same time, too many death row inmates suffer from severe mental illness. Additionally death sentences are disproportionately imposed on people of color, with African Americans comprising more than 40% of today’s death-row inmates while constituting only 12% of the national population.5
These findings reveal critical problems with capital punishment in the United States: 1) lack of sufficient review of capital convictions; 2) racial disparities in the application of the death penalty; 3) unjust application of the death penalty to the mentally ill; and 4) lack of adequate capital counsel for indigent defendants.
Changes to Habeas Corpus Limit Access to Critical Review
Despite grave concerns about the reliability and fairness of capital convictions, federal legislation, most prominently the AEDPA and the USA Patriot Reauthorization Act (PIRA),6 along with U.S. Supreme Court decisions interpreting these statutes, have significantly limited federal review of state court convictions. As a result, defendants who have suffered serious constitutional violations, such as inadequate defense counsel, racially discriminatory jury selection, and suppression of exculpatory evidence, are left with no recourse.
Since AEDPA’s enactment in 1996, state and federal prisoners have been forced to navigate a labyrinth of complex procedural rules and stringent deadlines to assert claims of serious constitutional violations in post-conviction proceedings. AEDPA burdens state prisoners, in particular, by requiring greater deference to state court decisions, thus constraining federal review of constitutional violations. Indeed, federal courts may only grant habeas relief to state prisoners where the state court’s decision was “contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States,” or was based on “an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.”7 This is particularly troublesome given that petitioners in state post-conviction proceedings do not have a right to counsel and therefore, are too often unrepresented in these proceedings.
The constraints on the ability of federal courts to serve as a final check on state capital convictions are particularly damning for prisoners who assert claims of actual innocence, when we know with certainty that defendants have been, and will be, wrongfully convicted of capital crimes.8 Since 1973, 138 death-row inmates from 26 states have been exonerated and released from custody after serving years (often decades) on death row.9 Even more disturbing are the cases of the men and women who have been executed despite concerns over their possible innocence. For example, in 2009, five years after Texas executed Cameron Todd Willingham for killing his three daughters by setting fire to his home, a report to the Texas Forensic Science Commission concluded there was no scientific basis for claiming the fire was arson.10 A four-person panel of the Commission acknowledged that state and local arson investigators used "flawed science" in determining the blaze had been deliberately set.11 Serious doubts about the accuracy of the arson investigation had been raised prior to Mr. Willingham’s execution and, if heeded, could have prevented the death of a potentially innocent man.12 The conviction and execution of innocent defendants is not only a moral travesty, but also a disservice to society’s need for justice and public safety. These risks can be mitigated by eliminating the unreasonable restrictions currently place on habeas petitions.
Racial Disparities in the Federal Death Penalty
The administration of the death penalty in the U.S. has also proven to be far too susceptible to the effects of race. Since 1988, approximately 73% of all approved federal capital prosecutions have been against defendants of color.13 Today, African Americans comprise more than 40% of death-row inmates while constituting only 12% of the national population.14 White federal defendants are almost twice as likely to have the death penalty reduced to life sentences through plea bargains.15 An analysis for the Senate and House Judiciary Committees also revealed that, out of 28 studies on racial disparity in the death penalty, 82% found that the race of the victim influenced whether a defendant was charged and convicted of a capital murder.16 In Georgia, for example, a defendant who murdered a white victim was 4.3 times more likely to receive the death sentence than a defendant who murdered an African American victim.17
A Department of Justice study of federal cases from 1988 to 2000 also revealed especially pervasive racial disparities at the stage when prosecutors were deciding whether to charge a homicide as a federal crime or leave it in a state’s criminal justice system.18 Unfortunately, the study did not examine the reasons for these racial disparities, and the Department has yet to conduct a follow up study on the role of racial bias in the application of the federal death penalty.
Despite the disturbing role race plays in the death penalty, in 1987, the U.S. Supreme Court held that statistical evidence of race disparities in the imposition of the death penalty did not violate the Eighth and Fourteenth Amendments to the U.S. Constitution.19 The Court reasoned that these statistics did not demonstrate intentional race discrimination in a specific defendant's trial.20 In response, Representative John Conyers, Jr. (D-MI) drafted the Racial Justice Act as an amendment to 1994 omnibus crime legislation.21 The Racial Justice Act prohibited federal and state executions imposed on the basis of race, permitting the use of statistical evidence to support the inference that race was a factor in decisions to seek or impose the death penalty. Although the measure passed in the House, it failed in the Senate by a 58-41 vote.
In 1995, the Department of Justice amended its regulations to require the U.S. Attorney General to review every federal death-eligible case throughout the nation, and to decide whether the death penalty will be sought in any or all of such cases, regardless of the recommendation of the local U.S. Attorneys.22 This over-centralization of the federal death penalty's decision-making process has proved cumbersome, slow, and extremely costly. It may also exacerbate racial disparities by placing the decision-making authority to not pursue capital charges in too few hands. Since the 1995 change in regulations, 31 federal defendants of color have been sentenced to death, compared with 25 white defendants.23
Mental Illness and the Federal Death Penalty
It is estimated that up to 10% of death row inmates suffer from serious mental illness.24 This is true despite the fact that diminished mental capacity is a mitigating factor that juries can consider when determining whether to sentence a defendant to death.25 In recent years the Supreme Court has cited evolving standards of decency to protect vulnerable populations from sentences of death based on their lack of judgment and culpability.26 While perhaps criminally culpable for their conduct, like juveniles and those with mental retardation, the severely mentally ill can lack the judgment, understanding, and self-control that would warrant the imposition of the death penalty.27 This is particularly true when severely mentally ill defendants were suffering from psychotic delusions or other debilitating psychological conditions at the time they committed their crimes. It is unjust to exercise the most severe of sanctions on a population whose diminished capacity makes them less culpable.
Access to Capital Counsel for Indigent Defendants
Further exacerbating the problems in pursuing capital prosecutions, capital defendants are predominately poor and must rely upon a dysfunctional indigent defense system that is in crisis. Indigent defense attorneys are overworked, underpaid, and too often lack independence and the necessary experience and skills to effectively represent their clients—especially in capital cases. With such inadequate resources, capital defendants are at a greater risk of facing death sentences that are arbitrary and unfair. Moreover, the absence of a right to counsel in post-conviction proceedings, coupled with the myriad procedural and substantive hurdles in raising a claim of ineffective assistance of counsel, leaves capital defendants with little recourse when they are deprived of the necessary legal resources.
Federal support for capital representation is critical to ensuring that every capital defendant receives a fair and just trial. A recent report by the Subcommittee on Federal Death Penalty Cases of the Committee on Defender Services of the Judicial Conference of the United States found that defendants whose defense costs were in the lowest one-third were more than twice as likely to be sentenced to death than those with greater defense resources.28 The report also found that attorneys for defendants in low cost cases were less likely to have “distinguished prior experience” in capital cases, placing these defendants at a disadvantage.29
In 2004, with large bipartisan support, Congress passed and President George W. Bush signed the Justice for All Act (JFAA).30 The JFAA authorized $75 million in annual grants to improve standards for prosecutors and defense counsel appointed to state capital cases over a five year period. Unfortunately, Congress never appropriated full funding for this provision.31 Additionally, many post-conviction defender organizations, known as capital resource centers, which procured and provided legal representation to death row inmates at the post-conviction stage, were forced to close when Congress eliminated their federal funding in 1996.32 These organizations demonstrated how proper training and support for competent death penalty counsel can cost-effectively and dramatically increase the quality of capital representation in state and federal post-conviction proceedings, as well as direct representation of capital defendants.
For federal defenders, a lack of independence is also an obstacle to effective representation of their clients. At the federal level, judges control many of the decisions regarding a federal defender’s budget and resources for a particular case.33 Rules vary among federal circuits regarding presumptive limits on expenditures for cases and the ability of attorneys to obtain authorization to hire experts and investigators. This creates inconsistencies in the quality of representation for defendants in different circuits and can prevent counsel from providing the zealous advocacy to which defendants are entitled.
Because death is different, there is an even greater urgency for the federal government to implement the following reform proposals to protect the constitutional rights of each individual at risk of execution. The guiding principle behind these recommendations is the need to administer the death penalty in a fair and equitable manner, with assurances of adequate and fully-funded legal representation and checks within the system to remedy constitutional violations and serious, reversible errors.