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Exonerations, Moratoriums, And Reforms

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EXONERATIONS, MORATORIUMS, AND REFORMS

Since the 1990s dozens of death row inmates have been exonerated, meaning that the original capital charges against them have been dropped. In some cases new evidence has come to light casting doubt on their guilt. In other cases legal challenges have changed the parameters used to determine who can be sentenced to capital punishment. Exonerations are heralded by death penalty opponents as proof that the U.S. capital punishment system is flawed and should be abandoned. Advocates of the death penalty argue that the importance of exonerations is exaggerated and their occurrence proves that the capital justice system protects the rights of defendants. Nevertheless, exonerations and other concerns about the capital punishment system have prompted reforms and spurred several states to temporarily cease conducting executions. These moratoriums allow officials time to reexamine their capital punishment systems and determine if there are systematic problems in their administration.

EXONERATIONS

The Death Penalty Information Center (DPIC) is opposed to capital punishment. In ''Innocence: List of Those Freed from Death Row'' (May 22, 2007, http://www.deathpenaltyinfo.org/article.php?scid1/46 did1/4110), the DPIC lists the names of 124 people that it claims have been exonerated from death row since 1973. The so-called Innocence List is often touted by death penalty opponents as proof that the U.S. capital punishment system is broken. According to the DPIC, defendants are added to the list when one of two things occurs: their conviction is overturned and they are acquitted on retrial or all charges are dropped; or they receive a governor's pardon because of new evidence of innocence.

Figure 8.1 shows the number of exonerations per year as of July 2, 2007. Between 1973 and 1998 a total of seventy-six inmates were exonerated, an average of three inmates per year. This average rose to eight between 1999 and 2003, with the highest number of exonerations (twelve) occurring in 2003. Only six inmates were exonerated from death row in 2004, followed by two inmates each in 2005 and 2006. Only one inmate had been exonerated in 2007 as of the date of publication of the figure.

As shown in Figure 8.2, six states account for over half of the exonerations: Florida (twenty-two), Illinois (eighteen), Louisiana (eight), Texas (eight), Arizona (eight), and Oklahoma (eight). The DPIC reports in ''Innocence: List of Those Freed from Death Row'' that seventy-three of the exonerated had their charges dismissed, forty-four were acquitted, and seven were pardoned. Fifteen defendants were exonerated based on deoxyribonucleic acid (DNA) evidence. Overall, the average amount of time that passed between death sentence and exoneration was 9.2 years.

Of the inmates exonerated, sixty-two were African-American and forty-nine were white. Twelve were Latino or Hispanic and one was of ''other'' race. Figure 8.3 shows the racial breakdown in percentage form.

Anthony Porter

According to the DPIC, in ''Innocence: List of Those Freed from Death Row,'' Anthony Porter of Illinois was convicted of two 1982 murders and sentenced to death in 1983. He was convicted based on the testimony of two eyewitnesses who separately claimed they saw Porter commit the crimes. By 1998 Porter had exhausted all his appeals. On September 21, 1998, two days before Porter's scheduled execution, his defense lawyer filed an emergency petition with the Illinois Supreme Court, arguing that the defendant was mentally retarded (he had an intelligence quotient of fifty-one) and did not understand what was about to happen to him. The court granted Porter a stay of execution to determine his mental competency.

In the meantime, an investigative journalism class taught by David Protess of Northwestern University had chosen Porter's case to review. The professor, his students, and Paul Ciolino, a private investigator, uncovered evidence of Porter's innocence. The first eyewitness (the second one had died) confessed to giving false testimony. The group tracked down the wife of the real murderer in Milwaukee (the couple had moved soon after Porter's arrest) and were able to convince her to confess to being present when her husband shot the victims. Next, the investigator succeeded in obtaining a videotaped confession from the murderer, Alstory Simon. On March 11, 1999, Porter's conviction was reversed; he had been on death row for seventeen years.

Curtis McCarty

Curtis McCarty of Oklahoma is the most recent death row exoneree. Cheryl Camp reports in ''Convicted Murderer Is Freed in Wake of Tainted Evidence'' (New York Times, May 22, 2007) that in 1986 he was convicted of killing Pamela Willis, who was found strangled and stabbed in 1982. There was much circumstantial evidence against McCarty including incriminating statements he made to friends and cell mates. Witnesses placed him at the scene on the day of the Willis murder. His conviction was also based on forensic evidence, primarily hairs, found on and in the victim's body.

In 1989 McCarty's verdict was overturned by a court of criminal appeals because of alleged misconduct by prosecutors and the police chemist Joyce Gilchrist. Upon retrial McCarty was convicted and again sentenced to death. This sentence was reversed on appeal because the jury had not been properly informed about its options. At a 1996 resentencing hearing, McCarty received the death penalty for the third time. An appeal and a request for postconviction relief were denied. A second application for postconviction relief was filed in 2005 and granted based on allegations of evidence suppression and ''bad faith'' on the part of the state. In 2007 evidentiary hearings were held by the district court judge Twyla Mason Gray. The findings were presented to the state appeals court, which reversed McCarty's conviction, vacated (annulled) his death sentence, and remanded the case for a new trial.

Before a new trial could be held Judge Gray ordered McCarty released from prison. Her decision was based on a number of factors, including serious doubts about the reliability of Gilchrist's forensic work and testimony. Gilchrist was fired in 2001 after she was found to have committed misconduct in several criminal cases. She was accused of giving false and misleading testimony to help police and prosecutors convict suspects. She testified during McCarty's first two hearings that hairs found on and in the victim matched his hair type. In 2000, when McCarty's lawyers asked for DNA analysis of the hairs, Gilchrist reported they had been lost. The appeals court noted that ''circumstantial evidence indicated Ms. Gilchrist had destroyed the evidence to prevent DNA testing.'' In addition, DNA testing in 2002 on semen found at the crime scene and in 2007 on scrapings from the fingernails of the victim did not match McCarty. Judge Gray ruled that she had no choice but to release McCarty despite misgivings about his role in the crime. She stated ''I believe he was involved in some way in what is so horrific.''

The Innocence List Disputed

Proponents of the death penalty are critical of the DPIC's Innocence List, claiming that it exaggerates the number of innocent people on death row. In 2000 the DPIC reported the one hundredth addition to the list, an event that was widely publicized in the media. In response, Ramesh Ponnuru attacked the list in ''Bad List: A Suspect Roll of Death Row 'Innocents''' (National Review, September 16, 2002). Ponnuru claimed that most of the exonerations resulted from legal technicalities, rather than actual innocence. He recounted the violent criminal records of some of the exonerees and the formidable evidence introduced at trial against them. He described legal motions and maneuvers that ultimately resulted in the reversal of their sentences. He complained that ''the list leads people to think that innocence has been proven when the most that can be said is that the legal system cannot establish guilt beyond a reasonable doubt.''

Ponnuru argued that approximately 32 of the then 102 exonerees on the list could truly be regarded as innocent. He noted that more than seven thousand people have been on death row since 1973; thus, the percentage of actual innocence cases is extremely low.

In Critique of DPIC List (''Innocence: Freed from Death Row'') (2002, http://www.prodeathpenalty.com/DPIC.htm), Ward A. Campbell, the supervising deputy attorney general in California, investigated the 102 cases of exonerated death row inmates on the DPIC list at that time. He concluded that at least 68 of the 102 inmates on the list should not have been included. Campbell found that ''many defendants on the List were not 'actually innocent'''—that is, the prosecution found the defendant innocent of the crime. Some had pleaded guilty to lesser charges and had their sentences commuted. Campbell noted that ''an acquittal because the prosecution has not proven guilt beyond a reasonable doubt does not mean that the defendant did not actually commit the crime.''

On June 20, 2002, the Florida Commission on Capital Cases released Case Histories: A Review of 24 Individuals Released from Death Row (September 10, 2002, http://www.floridacapitalcases.state.fl.us/Publications/innocents_project.pdf), which lists the results of its investigation into twenty-four cases on the DPIC list. The commission concluded:

Of these 24 inmates, none were found ''innocent,'' even when acquitted, because no such verdict exists. A defendant is found guilty or not guilty, never innocent. The guilt of only four defendants, however, was subsequently doubted by the prosecuting office or the Governor and Cabinet members . . . . An analysis of the remaining 20 inmates can be divided into three categories that account for their releases: (1) seven cases were remanded due to evidence issues, (2) an additional seven were remanded in light of witness issues, and (3) the remaining six were remanded as a result of issues involving court officials.

QUESTIONS ABOUT LEGAL ERRORS IN DEATH PENALTY CASES

Liebman Study

James S. Liebman, Jeffrey Fagan, and Valerie West conducted the first study of its kind—a statistical study of modern U.S. capital appeals—for the U.S. Senate Judiciary Committee. The study, called A Broken System: Error Rates in Capital Cases, 1973–1995 (June 12, 2000, http://www2.law.columbia.edu/instructionalservices/liebman/liebman_final.pdf), examined all death penalty sentences (5,760) imposed in the United States over a twenty-three-year period.

On direct appeal, the state high courts reviewed 4,578 death sentences. Liebman, Fagan, and West found that 68% of the death sentences reviewed by courts across the country were found to have serious errors. For every one hundred death sentences, forty-one were returned to the courts during state appeal because of serious errors. Of the fifty-nine death sentences that reached the second state appeal, another six went back to court because of errors. At the third level of appeal—with the federal courts— twenty-one more cases were remanded to the lower courts because of errors found. In all, of the original one hundred death penalty sentences, sixty-eight had serious errors that required retrial. Of the sixty-eight defendants who were retried, 82% (fifty-six) were found not deserving of the death penalty. Another five inmates were found not guilty of the capital crime for which they received the death sentence.

THE LIEBMAN STUDY IS ANALYZED.

Critics challenged the results of the Liebman study. Appearing before the U.S. Senate Committee on the Judiciary hearing on ''Reducing the Risk of Executing the Innocent: The Report of the Illinois Governor's Commission on Capital Punishment,'' Senator Strom Thurmond (R-SC, 1902– 2003; June 12, 2002, http://judiciary.senate.gov/mem_ber_statement.cfm?id1/4256 wit_id 456) warned:

A Columbia University report known as the Leibman [sic] study is often cited as proof that capital punishment in this country is deeply flawed. This study . . . alleged that from 1973 to 1995, 70% of death penalty convictions were reversed on appeal. The implication is that 70% of the time, innocent people were sentenced to death. This study should be viewed carefully because during the time period addressed by this study, the Supreme Court issued a series of retroactive rules that nullified a number of verdicts. These reversals were not based on the actual innocence of defendants, but rather were based on procedural rules.

The press release ''Nevada's Death Penalty System Is Working!'' (September 19, 2000, http://www.prodeathpe_nalty.com/Liebman/Nevada.htm) notes that Frankie Sue Del Papa, the Nevada attorney general, also took issue with the Liebman study. According to Del Papa, the Liebman study claimed that of the 108 death sentences in Nevada, 34 were reversed, accounting for an error rate of 38%. (The correct percentage is 31.5%.) The attorney general's researchers found 152 cases with 30 death sentence reversals for an error rate of 19%. The Liebman study also used a two-year period to determine the reversal rate of federal habeas appeals. It reached an overall error rate of 50% after finding two reversals out of four that underwent federal review. Del Papa's office found seventeen federal reviews with four reversals for a 23% error rate. According to Del Papa, the Liebman study ''creates the impression that the reversals are due to innocence, but most are attorney or judge procedural errors. Some are cases where juries followed the existing law, but later the Supreme Court changed it, and constitutional changes are applied retroactively on death cases, to give the defendant every benefit. [The study] also failed to report that after a new trial or penalty hearing, in 12 of those 31 cases death sentences were imposed again. In 13 cases, inmates received 'life-in-prison' sentences. Those were not inmates found to be innocent of their murders!''

Latzer Study

In ''Capital Appeals Revisited'' (Judicature, vol. 84, no. 2, September–October 2000), Barry Latzer and James N. G. Cauthen noted that their reexamination of the Liebman study found that about one-fourth (27%)—and not two-thirds (68%)—of capital convictions were reversed between 1973 and 1995. Latzer and Cauthen stated that the Liebman study did not differentiate between reversals of convictions and reversals of death sentences.

Latzer and Cauthen conducted their own investigation, based on the theory that many of the appeals resulted in reversed sentences but not reversed convictions. The study covered the period 1990 to 1999, using reversal data in the same twenty-six states studied by Liebman and his colleagues. Latzer and Cauthen wanted more recent data of the death penalty system that would provide more complete reversal rate differences.

Latzer and Cauthen found that of the 837 death penalty reversals in state-level direct appeal or postconviction review, 61% were sentence reversals and 39% were conviction reversals (reversals addressing the guilt or innocence of the defendant). Using the Liebman study's conclusion that five out of ten capital judgments were reversed at either the direct-appeal phase or postconviction review phase, Latzer and Cauthen applied this finding to their study and concluded that, of the five reversals, three were sentence reversals and two were conviction reversals.

Latzer and Cauthen also investigated reversals at the federal level—the third stage of death penalty judgment review—using data from the Ninth Circuit Court of Appeals, the largest of the circuit courts. Of the twenty-nine capital cases reversed by the court during the ten-year period, twenty-one (72.4%) were sentence reversals and eight (27.7%) were conviction reversals. This was consistent with their findings regarding direct-appeal and postconviction sentence reversals at the state level. Using the Liebman study's finding that sixty-eight out of one hundred capital judgments were reversed, Latzer and Cauthen concluded, ''If 68 of 100 capital decisions are reversed after direct, post-conviction, and federal habeas corpus review, and 39 percent of these are conviction reversals, then convictions in 26.52 (39 percent of 68) of 100 capital decisions are reversed.''

DNA TESTING

Before DNA testing became available as proof of identity, the U.S. Supreme Court held the view that U.S. appellate courts could not reverse a murder conviction based on newly discovered post-trial evidence. The National Institute of Justice (NIJ) mentioned this in the report Postconviction DNA Testing: Recommendations for Handling Requests (September 1999, http://www.ncjrs.gov/pdffiles1/nij/177626.pdf). According to the commission, the nation's highest court ruled in Herrera v. Collins (506 U.S. 390, 1993) that newly discovered evidence does not constitute grounds for a federal habeas relief if there is no evidence of a constitutional violation occurring during state criminal proceedings. (In this case, Leonel Torres Herrera alleged ten years after his initial trial that he was innocent of a double murder, presenting ''actual evidence'' that his brother, who had since died, had committed the crime.) The commission, however, stated that with the availability of DNA testing, ''the possibility of demonstrating actual innocence has moved from the realm of theory to the actual.''

The science of DNA testing is improving rapidly. When DNA testing was first used in criminal trials starting in the mid-1980s, DNA samples had to be not only fresh but also contain thousands of cells. As DNA technology has become more sophisticated, scientists are able to test a single cell for DNA patterns that could link suspects to hair or semen found on a victim. In the twenty-first century a crime laboratory can identify unique DNA patterns in a tiny sample of less than fifty cells. DNA testing has played a substantial role in proving the innocence of a number of people wrongly convicted. The DPIC reports in ''Innocence: List of Those Freed from Death Row'' that as of May 2007, 15 of the 124 inmates released from death row since 1973 were exonerated by DNA evidence.

When biological material has been left at the scene of the crime, DNA testing can establish with near certainty a defendant's innocence or guilt. DNA, which stores the genetic code of the human body, is found in saliva, skin tissue, bones, blood, semen, and the root of hair. Biological samples that were difficult to test in the 1980s may yield more accurate information where previous results had proved inconclusive.

By the mid-1990s DNA evidence was being used to prove that certain prisoners on death row had been wrongly convicted. In 1996 David Protess and another group of students at Northwestern University's Medill School of Journalism helped uncover new evidence that proved the innocence of four African-American men who were convicted for a 1978 gang rape and double murder. Two received life imprisonment, whereas the other two were sentenced to death. DNA tests helped prove the men's innocence. In March 1999 the four men received a $36 million settlement from Cook County, Illinois, to resolve a lawsuit charging police misconduct. In a Florida case, Frank LeeSmithwassentencedtodeathin1986fortherapeand murder of an eight-year-old girl. DNA testing performed in 2000 proved Smith's innocence. However, Smith had died of cancer the previous year while awaiting execution.

Backlog of DNA Testing

Given the high price of analyzing DNA samples (each test costs about $2,000 to perform), DNA evidence from crime scenes often goes untested. Such testing, however, could exonerate death row inmates who have been falsely accused. In December 2000 Congress authorized the U.S. Department of Justice to provide state crime laboratories more than $30 million to analyze the backlog of DNA samples that had been collected but never tested. Under the DNA Analysis Backlog Reduction Act of 2000, states would receive funding to conduct tests on about half a million samples collected from criminals and crime scenes that had never been analyzed. In August 2001 the U.S. attorney general John Ashcroft (1942–) announced that, besides the state initiative, the Justice Department had authorized the collection of DNA samples from about twenty thousand to thirty thousand federal, military, and District of Columbia offenders.

In The Report to the Attorney General on Delays in Forensic DNA Analysis (March 2003, http://www.ncjrs.gov/pdffiles1/nij/199425.pdf), the NIJ reveals that a task force assembled by the NIJ found a continuing backlog in the testing of DNA samples collected at crime scenes. Even though an estimated 350,000 rape and homicide DNA samples needed testing at that time, just 10% of the samples were in forensic crime laboratories. Most of the evidence samples were in the custody of law enforcement agencies because most laboratories lacked the proper storage facilities for preventing damage to the evidence.

Even if the laboratories had the proper storage facilities, the analysis of DNA samples could not take place because of the shortage of trained forensic scientists. Newly hired scientists need on-the-job training that requires an experienced scientist to spend time working one-on-one with new hires. The task force found that even when these problems were confronted, public crime laboratories could not retain their staff because of their lower compensation, compared to that paid by private companies.

Postconviction DNA Testing

The federal Innocence Protection Act became law on October 30, 2004. The law established the conditions under which a federal prisoner who pleads not guilty can receive postconviction DNA testing. If a trial defendant faces conviction, the act calls for the preservation of the defendant's biological evidence. A five-year, $25 million grant program was also established to help eligible states pay for postconviction testing.

MORATORIUMS AND REFORMS

Since the turn of the twenty-first century a number of moratoriums and reforms have been put in place in death penalty states in an attempt to remedy perceived problems in their capital punishment systems.

California

In 2004 the California Commission on the Fair Administration of Justice (CCFAJ) was created by the state's legislators to examine California's criminal justice system and make recommendations to remedy any problems. As of November 2007, the CCFAJ (http://www.ccfaj.org/reports.html) had released six reports:

  • Report and Recommendations Regarding Eye Witness Identification Procedures (April 13, 2006)
  • Report and Recommendations Regarding False Confessions (July 25, 2006)
  • Report and Recommendations Regarding Informant Testimony (September 29, 2006)
  • Report and Recommendations Regarding Forensic Science Evidence (May 8, 2007)
  • Emergency Report and Recommendations Regarding DNA Testing Backlogs (February 20, 2007)
  • Report and Recommendations on Professional Responsibility and Accountability of Prosecutors and Defense Lawyers (October 18, 2007)

California legislators acted on the recommendations provided in these reports by passing bills designed to reform the state's eyewitness identification procedures and require recording of suspect interrogations. In 2006 Governor Arnold Schwarzenegger (1947–) vetoed both bills citing procedural problems with them. Revamped versions of the bills passed the legislature in 2007, but were again vetoed by the governor.

In December 2006 a federal judge in California ruled in Morales v. Tilton (No. C 06 219 JF RS) the state's lethal injection protocol unconstitutional after hearing arguments from the lawyers for the death row inmate Michael Morales. The judge complained that the protocol ''lacks both reliability and transparency'' and results in ''undue and unnecessary risk of an Eighth Amendment violation.'' The state began construction of a new execution chamber and development of new lethal injection protocols. As of November 2007, a de facto (in practice, as opposed to de jure, meaning in law) moratorium remained in effect in California.

Florida

In December 2006 the execution of Angel Diaz by the state of Florida attracted international attention after it took Diaz more than thirty minutes to die and required a second dosage of lethal injection chemicals. Public outcry led to revisions in the state's lethal injection protocols and a temporary moratorium on executions. In July 2007, with new protocols in place, the Florida governor Charlie Crist (1956–) ended the moratorium by signing the death warrant for Mark Dean Schwab, a convicted murderer and child molester. Several days later a Florida circuit court judge reinstated the moratorium expressing concern that the new protocols are not adequate to address the problems that arose during the Diaz execution. On November 1, 2007, the Florida Supreme Court rejected challenges to the state's new lethal injection procedures and ruled that Schwab's execution could be carried out. On November 15, 2007, within hours of Schwab's execution, the U.S. Supreme Court issued a stay of execution and a de facto nationwide moratorium on executions until it considered a challenge to lethal injections in the spring of 2008.

Illinois

On January 31, 2000, Illinois became the first state to declare a moratorium on the death penalty. Governor George Ryan (1934–), a death penalty supporter, suspended all executions because he believed the state's death penalty system was ''fraught with errors.'' The Chicago Tribune had issued a report showing that thirteen inmates in Illinois had been released from death row since 1976. The reasons for the exoneration of these inmates ranged from DNA evidence showing innocence, to false testimonies by jailhouse informants, to coercion of so-called witnesses by the prosecution and police.

Governor Ryan then established the Governor's Commission on Capital Punishment to investigate the thirteen cases, as well as all capital cases in Illinois. In April 2002 the Report of the Governor's Commission on Capital Punishment (http://www.idoc.state.il.us/ccp/ccp/reports/commission_report/summary_recommendations.pdf) was released. The commission issued eighty-five recommendations it thought would help reform the state's death penalty process. The recommended reforms included videotaping of capital suspects during interrogation at police facilities, banning the death penalty in cases where the conviction is based on a single-eyewitness testimony, and thorough examination of a jailhouse-informant testimony at a pretrial hearing to determine whether to use that testimony during trial.

John J. Kinsella (June 12, 2002, http://judiciary.senate.gov/testimony.cfm?id1/4256 wit_id1/4623), the first assistant state's attorney of DuPage County, Illinois, was asked to appear before the U.S. Senate Judiciary Committee to express his views as a prosecutor concerning Governor Ryan's moratorium and the Commission on Capital Punishment. Kinsella noted that the governor had only one active prosecutor among the fourteen commission members. Even though many of the commission recommendations involve how the police should perform their jobs, not one police officer was invited to be a part of the commission. No victim rights groups were also represented. Furthermore, most of the members were death penalty opponents.

According to the DPIC (2007, http://www.deathpe_naltyinfo.org/article.php?did=126), on January 10, 2003, the day before leaving office, Governor Ryan pardoned four inmates who had been on death row in Illinois at least twelve years. The governor claimed the men were innocent of the murders for which they had been convicted. He found that the police had tortured the men into making false confessions. Three of the men had been released. The fourth inmate remained in prison because of a separate conviction. The following day Governor Ryan commuted 167 death sentences to life imprisonment without the possibility of parole, emptying death row.

Rod R. Blagojevich (1956–) entered office on January 12, 2003, and as of August 31, 2007, the Illinois moratorium had not been lifted. However, the Illinois death row has not remained empty. According to Tracy L. Snell of the Bureau of Justice Statistics, in Capital Punishment, 2005 (December 2006, http://www.ojp.us_doj.gov/bjs/pub/pdf/cp05.pdf), there were seven inmates on death row in Illinois at year-end 2005.

Maryland

In July 2001 a de facto moratorium occurred in Maryland pending the resolution by the state's high court of an appeal by inmate Steven Oken challenging the constitutionality of Maryland's capital punishment laws. Oken was sentenced to death in 1991 for the 1987 murder of Dawn Marie Garvin. He had also received life sentences for killing his sister-in-law and a motel desk clerk in Maine.

In May 2002 the Maryland governor Parris N. Glendening (1942–) imposed a moratorium to allow for the completion of a study on capital punishment. Robert L. Ehrlich Jr. (1957–), the newly elected governor, lifted the ban on executions in January 2003.

Maryland again imposed a moratorium in February 2003 after the state's highest court stayed the execution of Oken, who was scheduled to die the following month. The Maryland Court of Appeals granted the temporary reprieve to hear Oken's case at a future date. On May 1, 2003, during his fourth review by the state's appellate court, Oken argued that the state's death penalty is unconstitutional in light of the Supreme Court ruling in Apprendi v. New Jersey (530 U.S. 466, 2000), which held that jurors must use the higher standard of ''beyond a reasonable doubt'' in considering evidence during the sentencing phase of a trial.

In Oken v. State (No. 117, November 17, 2003), the Maryland Court of Appeals upheld Oken's death sentence. The court did not address Oken's Apprendi argument and ruled only on his claim that Ring v. Arizona (536 U.S. 584,2002) implicated the state's death penalty law. The court rejected this claim. In 2003 Ehrlich signed Oken's death warrant, and Maryland's moratorium ended on July 17, 2004, with the execution of Oken by lethal injection.

In December 2006 another moratorium began after the Maryland Court of Appeals ordered a legislative review of the manual detailing lethal injection procedures for executions.

Nebraska

In May 1999 the Nebraska legislature became the first in the country to pass a bill proposing a two-year moratorium on executions. The bill also called for a study, during the moratorium, to determine the fairness of the administration of the death penalty. Governor Mike O. Johanns (1950–) vetoed the bill. The governor also vetoed the proposed study, but the legislature overrode his veto.

On July 25, 2001, David C. Baldus et al. released their findings concerning the state death penalty in The Disposition of Nebraska Capital and Non-capital Homicide Cases (1973–1999): A Legal and Empirical Analysis (http://www.ncc.state.ne.us/pdf/others/other_homicide/execsum.pdf), which was funded by the Nebraska Commission on Law Enforcement and Criminal Justice. Baldus et al. reviewed more than seven hundred homicide cases that resulted in a conviction. They then closely examined the decision-making process in 177 death-eligible cases, 27 of which received the death sentence. Baldus et al. did not find racial bias in the use of the death penalty. White defendants (15%) were just as likely as nonwhite defendants (16%) to receive the death penalty. Baldus et al. also concluded that there was no significant evidence of unfair treatment based on the victim's race—17% of defendants who murdered white victims and 11% of defendants who murdered minority victims were sentenced to death.

However, Baldus et al. found that death-eligible defendants who murdered victims of ''high socioeconomic status'' were nearly four times as likely to receive the death sentence than those who murdered poor victims, even when similar crimes had been committed. In addition, they found geographic disparities in seeking the death penalty. Prosecutors in rural capital trials were more likely to seek the death penalty than their urban counterparts (31% versus 20%).

New Hampshire

In May 2000 the New Hampshire legislature passed a bill abolishing the death penalty. However, Governor C. Jeanne Shaheen (1947–) vetoed the bill. A similar bill introduced in the New Hampshire House of Representatives in January 2001 was defeated three months later. Even though the death penalty is in the statute books, New Hampshire has not sentenced anyone to death since reinstating capital punishment in 1991. The state had not had an execution since 1939. As of November 2007, New Hampshire had no inmates on death row.

New Jersey

In 2006 the New Jersey legislature created the New Jersey Death Penalty Study Commission to assess the administration of capital punishment in the state. All death sentences were put on hold until at least sixty days after completion of the commission's report, New Jersey Death Penalty Study Commission Report (January 2007, http://www.njleg.state.nj.us/committees/dpsc_final.pdf). The report included eight major findings and recommendations:

  • 'No compelling evidence'' was found to support the idea that the death penalty ''serves a legitimate peno-logical'' purpose
  • The costs of capital punishment were found to be higher than the costs of life in prison without parole
  • Evidence indicated that the death penalty is ''inconsistent with evolving standards of decency''
  • Data did not support the idea that racial biases affect the application of capital punishment in New Jersey
  • The abolishment of the death penalty would eliminate the ''risk of disproportionality in capital sentencing''
  • The penological benefit of capital punishment was deemed not worth the risk of possibly making an ''irreversible mistake''
  • Life sentences with no chance of parole were declared sufficient to ensure public safety and address other social and penological concerns
  • State funds should be allocated to provide needed services to the families of murder victims

As of November 2007 a de facto moratorium on executions remained in place in New Jersey.

New York

GUILTY PLEAS. Until 1998 New York's death penalty statute prohibited the imposition of a death sentence when a defendant entered a guilty plea. The maximum penalty in such a case would be life imprisonment without parole. However, a defendant who pleaded not guilty would have to stand trial and face the possibility of a death sentence. The law provided two levels of penalty for the same offense, imposing the death penalty only on those who claimed innocence.

Defendants in two capital cases challenged the plea provisions of New York's death penalty statute, claiming these provisions violated their Fifth Amendment right against self-incrimination and Sixth Amendment right to a jury trial. This was the first major constitutional challenge to New York's death penalty law. On December 22, 1998, the New York Court of Appeals (New York's highest court), in Hynes v. Tomei (including Relin v. Mateo, 92 N.Y. 2d. 613, 706 N.E. 2d. 1201, 684 N.Y.S. 2d. 177), unanimously agreed, thereby striking down these plea-bargaining provisions as unconstitutional. The court, relying on the U.S. Supreme Court decision in United States v. Jackson (390 U.S. 570, 1968), observed that ''the Supreme Court in Jackson prohibited statutes that 'needlessly' encourage guilty pleas, which are not constitutionally protected, by impermissibly burdening constitutional rights.'' The ruling left the death penalty intact, but the court could no longer give preference to those who entered a guilty plea.

JURY DEADLOCK INSTRUCTIONS.

In 2004 the New York Court of Appeals agreed to hear another challenge to the constitutionality of New York's death penalty. Stephen LaValle was sentenced to death in 1999 by a New York jury for the murder and rape of Cynthia Quinn. Under New York law, a jury can sentence a defendant convicted of murder to life in prison without parole or to death. All jurors must vote unanimously. In the event of a hung jury, the court sentences a guilty defendant to life imprisonment with parole eligibility after serving a minimum of twenty to twenty-five years, leaving room for the convict to be released.

LaValle claimed that this ''jury deadlock instruction'' violated his constitutional rights because it would encourage members of the jury who do not favor the death penalty to vote for the death penalty if they are in the minority. LaValle even presented a study showing that most jurors would choose the death penalty if given the choice of the death penalty or imprisonment with a chance of parole. In People v. LaValle (783 NYS 2d, 485, 2004), the New York Court of Appeals agreed with LaValle and vacated his sentence. The state high court stated that this jury instruction was a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, citing the U.S. Supreme Court's decision in Woodson v. North Carolina (428 U.S. 280, 1976). The Court held in Woodson that a mandatory death sentence for a capital offense was unconstitutional and forced jurors to charge the defendant with a lesser charge if they did not want to see the defendant sentenced to death.

This decision by the New York court effectively put a moratorium on the New York death penalty until the New York state legislature changed the death penalty statutes. Roughly a year later, the New York State Assembly Codes Committee (the state legislative committee in charge of changing death penalty statutes) defeated a bill to reinstate the death penalty, claiming that the system was riddled with flaws. As of November 2007, the unofficial moratorium on the death penalty remained in effect.

North Carolina

In August 2006 the North Carolina governor Mike F. Easley (1950–) signed a new law that created the North Carolina Innocence Inquiry Commission (NCIIC). The eight-member committee will review innocence claims and new evidence not previously presented at trial. After a majority recommendation by the committee, a disputed case will be reviewed by a panel of three North Carolina Superior Court judges. A unanimous decision by the panel can overturn a conviction. The NCIIC is the first commission of its type in the United States. In ''North Carolina Becomes First State with an Innocence Commission'' (TalkLeft.com, August 3, 2003), Jeralyn Merritt reports that after signing the bill the governor remarked, ''As a state that exacts the ultimate punishment, we should continue to ensure that we have the ultimate fairness in the review of our cases.''

Tennessee

In February 2007 the Tennessee governor Phil N. Bredesen (1943–) ordered a ninety-day moratorium on executions until the state's lethal injection and electrocution procedures could be reviewed and revised. New lethal injection protocols were issued by May 2007, and the state ended the moratorium that month with the execution of Philip Workman. Workman had been convicted of killing a police officer in 1982. The state announced that a postexecution autopsy indicated the lethal injection procedure had proceeded properly.

Texas

In Recommendations to Governor Rick Perry (January 2006, http://www.governor.state.tx.us/divisions/general__counsel/files/CJAC-0106.doc), the Governor's Criminal Justice Advisory Council (CJAC) in Texas makes a number of recommendations to change the state's justice system to reduce the number of wrongful convictions. These include changes to allow greater postconviction DNA testing and grants for innocence projects at the state's law schools. In addition, the CJAC recommends greater funding for a public defenders office and increased compensation for prisoners who have been wrongfully convicted.

TEXAS FAIR DEFENSE ACT.

On June 14, 2001, Governor Rick Perry (1950–) signed the Texas Fair Defense Act, providing, for the first time, state funding for indigent (poor) defense services. The $12 million yearly appropriation helps establish public defender offices. Two lawyers are provided in capital cases, unless the state indicates in writing that it will not seek the death penalty. The law also limits judges' powers by requiring appointments be made from a rotating list of qualified lawyers. Moreover, courts must pay reasonable fees, including necessary overhead reimbursements.

Under the law, death penalty lawyers have to attend annual training on capital defense to remain on the rotating list. In addition, the law established a Texas Task Force on Indigent Defense to be responsible for setting standards for lawyers. The task force also monitors the operation of the public defender programs in the counties. The task force and the county capital appointment committee review the list of lawyers who handle capital cases.

The Texas Fair Defense Act was passed as a result of findings by Texas Appleseed, a nonpartisan legal advocacy group. In December 2000 Texas Appleseed reported in The Fair Defense Report: Analysis of Indigent Defense Practices in Texas (http://www.texasappleseed.net/pdf/projects__fairDefense_fairref.pdf) that, unlike other active death penalty states, Texas had been ''virtually alone'' in not having a statewide program to assist indigent defendants with legal representation. As of November 20, 2000, among states that most actively imposed the death penalty, Texas was one of two states that did not fund indigent defense representation (Arizona was the other state). Texas was also the only state that had no statewide oversight commission, public defender agencies, and capital trial unit.

Texas Appleseed pointed out that Texas did not have an oversight commission that could develop standards for appointment and compensation of lawyers in capital cases. In some states a similar commission also monitors the performance of the defense counsel and the judges' fee decisions.

Many death penalty states have a specialized statewide capital trial unit that assists court-appointed private defense lawyers. In addition, nine states—Colorado, Connecticut, Delaware, Maryland, Missouri, New Hampshire, New Jersey, New Mexico, and Wyoming—have a public defender program, most of which provide public defenders in every county statewide. Texas, however, used private lawyers appointed by judges on a case-by-case basis. These lawyers lacked the support of a public defender system that could make available the expertise of other lawyers more experienced in capital cases, as well as the training programs that such a system provides.

Washington

CONTROVERSY OVER GREEN RIVER KILLER PLEA BARGAIN.

A plea agreement between a serial killer and Norm Maleng, the prosecutor for King County, Washington, caused controversy over the fair application of the death penalty. Gary Leon Ridgway escaped the death penalty by agreeing to provide information about the forty-eight women he had murdered. Ridgway, known as the Green River Killer because he dumped the bodies of his victims, many of them prostitutes and runaways, along the Green River near Seattle, Washington, committed his crimes between 1980 and 1998. Authorities say this is the largest number of murders ever committed by a serial killer. In November 2001 authorities linked Ridgway's DNA to samples found on some of the victims. In December 2003 Ridgway received forty-eight consecutive life terms without the possibility of parole. He was also ordered to pay $10,000 for each victim.

Both sides of the death penalty issue have used the Ridgway case to bolster their causes. Opponents of the death penalty argue that if a case involving the largest number of serial killings did not warrant the death penalty, then others involving fewer murders certainly do not deserve the ultimate punishment. Some note that if the criminal justice system did not sentence a white mass murderer to death, then it should think twice about imposing the death penalty on an African-American who has killed just one person or a few. Proponents of capital punishment use the case as an example of how murderers can manipulate the system, and they call for shortening the time between death sentencing and execution. Still others think the prosecutor took the right course by not acting on his initial plan to seek the death sentence. He believed that victims' families could find closure through the information Ridgway could provide about their loved one's death.

In ''The Ultimate Sacrificed'' (Seattle Times,November 8, 2003), David A. Nichols, a Washington Superior Court judge, calls for the abolition of the death penalty in his state. He points out that it is a ''mockery of all reasonable notions of justice'' that a mass murderer is able to avoid the death penalty because he has something to offer in exchange for the deal, whereas another murderer gets the death sentence because he has nothing to offer. However, the case did not result in overturning the death penalty in Washington, which was still in effect in 2007.

The American Bar Association Advocates a Nationwide Moratorium

The American Bar Association (ABA) is a voluntary professional association for people in the legal profession. In 2001 the ABA began the Death Penalty Moratorium Implementation Project (DPMIP), an effort to secure a nationwide moratorium on the death penalty.

In 2004 the DPMIP began assessing state death penalty systems to determine their level of agreement with ''minimum standards of fairness and due process.'' The project relies on the ABA publication Death without Justice: A Guide for Examining the Administration of the Death Penalty in the United States (June 2001, http://www.abanet.org/irr/finaljune28.pdf) to provide protocols (codes for correct conduct) against which it assesses each state's capital punishment laws and processes. As of November 2007, eight state assessments had been published:

ALABAMA.

The DPMIP report for Alabama calls for reform of seven major problems it cites in the state's capital punishment system:

  • Inadequate indigent defense services at trial and on direct appeal
  • Lack of defense counsel for state postconviction proceedings
  • Lack of a statute protecting people with mental retardation from execution
  • Lack of a postconviction DNA testing statute
  • Inadequate proportionality review by the Alabama Court of Criminal Appeals
  • Lack of effective limitations on the interpretation of the ''heinous, atrocious, or cruel'' aggravating circumstance that could allow the circumstance to be used improperly as a ''catchall provision''
  • Capital juror confusion as evidenced by interviews with capital jurors indicating confusion about mitigating and aggravating factors and other legal issues arising during trial

ARIZONA.

The DPMIP report for Arizona recommends reforms for four major problems identified in the state's capital punishment system:

  • Decentralized defense services that lack adequate oversight and standards
  • Insufficiently compensated appointed counsel
  • Lack of a mechanism to ensure proportionality review to protect against arbitrariness in capital sentencing
  • Lack of effective limitations on the ''especially cruel, heinous, or depraved'' aggravating circumstance to prevent ambiguity in its interpretation by capital juries

FLORIDA.

The DPMIP report for Florida identifies eleven major problems requiring reform in the state's capital punishment system:

  • Florida leads the nation in death-row exonerations
  • Inadequate compensation for conflict trial counsel in death penalty cases
  • Lack of qualified and properly monitored capital collateral registry counsel (''private lawyers who are appointed from the statewide registry to represent death-sentenced inmates during post-conviction proceedings'')
  • Inadequate compensation for capital collateral registry attorneys
  • Significant capital juror confusion as evidenced by interviews with capital jurors
  • Lack of unanimity in jury's sentencing decision in capital cases
  • The practice of judicial override of jury recommendations of life imprisonment
  • Lack of transparency in the clemency process
  • Racial disparities in Florida's capital sentencing that make African-American defendants more likely to receive the death penalty if the victim is white, than if the victim is African-American
  • Geographic disparities in Florida's capital punishment system
  • Death sentences imposed on people with severe mental disability

GEORGIA.

The DPMIP report for Georgia highlights seven major problems within the state's capital sentencing process:

  • Inadequate defense counsel at trial
  • Lack of defense counsel for state habeas corpus proceedings
  • Inadequate proportionality review by the Georgia Supreme Court
  • Inadequate jury instructions on mitigating factors as evidenced by interviews with capital jurors
  • Racial disparities in capital sentencing in which both the race of the defendant and the race of the victim predict who is sentenced to death
  • Inappropriate burden of proof for mentally retarded defendants
  • Death penalty for felony murder (a killing in the commission of a felony irrespective of malice, meaning that a conviction of felony murder does not require a finding of an intent to kill or of a reckless indifference to life)

INDIANA.

The DPMIP report for Indiana recommends reform of six problem areas identified in the state's capital punishment system:

  • Inadequate qualification standards for defense counsel
  • Lack of an independent appointing authority
  • Lack of meaningful proportionality review of death sentences
  • Significant capital juror confusion over roles and responsibilities when deciding whether to impose a death sentence
  • Racial disparities that mean those convicted of killing white victims are sentenced more severely than those convicted of killing nonwhite victims.
  • Death sentences imposed on people with severe mental disability

OHIO.

The DPMIP report for Ohio notes ten major problems in the state's capital punishment system:

  • Inadequate procedures to protect the innocent, specifically failure to require preservation of biological evidence for as long as the defendant remains incarcerated, failure to require that crime laboratories and law enforcement agencies be certified by nationally recognized certification organizations, failure to require the audio or videotaping of all interrogations in potential capital cases, and failure to implement lineup procedures that protect against incorrect eyewitness identifications
  • Inadequate access to experts and investigators
  • Inadequate qualification standards for defense counsel
  • Insufficient compensation for defense counsel representing indigent capital defendants and death row inmates
  • Inadequate appellate review of claims of error
  • Lack of meaningful proportionality review of death sentences
  • Virtually nonexistent discovery provisions in state postconviction
  • Racial disparities in capital sentencing wherein perpetrators are more likely to end up on death row if the homicide victim is white rather than African-American
  • Geographic disparities in capital sentencing within the state
  • Death sentences imposed and carried out on people with severe mental disability

PENNSYLVANIA.

The DPMIP report for Pennsylvania identifies eight major problems requiring reform in the state's capital punishment system:

  • Inadequate procedures to protect the innocent, specifically failure to require preservation of biological evidence for as long as the defendant remains incarcerated, failure to require the audio or videotaping of all interrogations in potential capital cases, and failure to implement lineup procedures that protect against incorrect eyewitness identifications
  • Inadequate safeguards against poor lawyering, specifically failure to guarantee the appointment of two attorneys at all stages of a capital case, inadequate compensation afforded capital attorneys, and lack of a statewide independent appointing authority responsible for training, selecting, and monitoring capital defense attorneys to ensure that competent representation is provided to each capital defendant
  • No state funding of capital indigent defense services
  • Inadequate access to experts and investigators
  • Lack of data on death-eligible case means that Pennsylvania cannot ensure that its system ensures proportionality in chargingor sentencing, ordetermine theextent of racial or geographic bias in its capital system
  • Significant limitations on postconviction relief
  • Significant capital juror confusion wherein capital jurors fail to understand their roles and responsibilities when deciding whether to impose a death sentence
  • Racial and geographical disparities in the state's capital sentencing

TENNESSEE.

The DPMIP report for Tennessee notes ten major problem areas in the state's capital punishment system:

  • Inadequate procedures to address innocence claims and ensure they receive adequate judicial review
  • Excessive caseloads for defense counsel in public defender offices representing capital defendants
  • Inadequate access to experts and investigators by capital defendants
  • Inadequate qualification and performance standards for defense counsel
  • Lack of meaningful proportionality review by the Tennessee Supreme Court and the Tennessee Court of Criminal Appeals
  • Lack of transparency in the clemency process
  • Significant capital juror confusion as evidenced by capital juror interviews
  • Racial disparities in the state's capital sentencing that favor the ''majority'' race or ethnicity
  • Geographical disparities in the state's capital punishment system
  • Death sentences imposed on people with severe mental disability
Capital Punishment: Cruel and Unusual?

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