How should we reform capital punishment policy in this country?
What is needed from the criminal justice system in order to satisfy these concerns? Pick two of these reforms and argue why they are the most feasible.
How do We Fix It? Suggestions for Reform
After more than 35 years of the Court's “tinkering with the machinery of death,” to use former Justice Harry Blackmun's evocative phrase (Callins v. Collins, 1994), it may be impossible to fix capital punishment in the United States, if “fixing” it means substantially reducing the problems of arbitrary and discriminatory application, and especially the problems of wrongful convictions and executions. Thus, the only way to fix the problems with capital punishment is to abolish it. However, short of total abolition there are numerous reforms that proponents of the penalty hope will make the capital punishment process less egregious. The problem with reform is that capital punishment, like any other sanction, invariably is imposed arbitrarily and too often in a discriminatory way. In addition, errors and mistakes are made by all of its participants and continue to plague the entire capital punishment process. To err is human. The problems are individual and structural, intentional and accidental. After 35 years of trying, further reform efforts are probably a fool's errand.
Good Defense Attorneys Can Make a Difference1
1 Space limitations preclude a detailed discussion of possible reforms; the interested reader should consult the following sources: Scheck, Neufeld, and Dwyer, 2001; State of Illinois, 2002; and The Constitution Project, 2005. Unless indicated otherwise, the information presented below is from these sources.
The quality of legal representation is arguably the most critical problem with the current capital punishment process. Unfortunately, most capital defendants are indigent and are not represented by privately retained defense counsel skilled in the complexities of capital jurisprudence, but instead are represented by court-appointed lawyers or public defenders who are inexperienced, overworked, understaffed, unprepared, less resourceful, less independent, poorly compensated, and, in some cases, have been reprimanded, disciplined, or subsequently disbarred (Bedau, 1982; Bowers, 1984; Coyle, Strasser, & Lavelle, 1990; Dow, 2002, 2005; Mello & Perkins, 1998).
In 2003, the American Bar Association's House of Delegates approved a revised edition of its 1989 guidelines for the appointment and performance of defense counsel in death penalty cases. The revised edition was created because of deficiencies in the older guidelines. However, as of May 2012, only three death penalty states—Kansas, Kentucky, and Oregon—explicitly follow the ABA guidelines (National Center for State Courts, 2012). The reason is twofold. First, according to critics of the guidelines, they are too expensive to implement (Post, 2004). Second, the Supreme Court has not required them. In fact, in Strickland v. Washington (1984), the case that provided a test for determining when counsel is ineffective, the Court adamantly refused to adopt performance guidelines for evaluating counsel in capital cases (Williams, 2005). It gave three reasons for its position. First, the Court pointed out the purpose of the effective assistance guarantee was “not to improve the quality of legal representation” (Strickland v. Washington, 1984, p. 699). Second, the Court opined that “no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant” (pp. 708–709). Third, the Court was concerned that the adoption of specific standards would encourage ineffectiveness claims, which would discourage many attorneys from representing defendants in capital cases.
As of May 23, 2012, only three death penalty states adopted the 2003 ABA guidelines; however, 28 of the 33 death penalty states adopted their own minimum guidelines or standards for the appointment of counsel at either the trial or appellate level, or both in capital cases (National Center for State Courts, 2012). The only death penalty states that have not yet adopted any minimum guidelines or standards are Delaware, Mississippi, New Hampshire, Ohio, South Dakota, and Wyoming. Clearly, these standards are better than no standards at all, but none of them can be considered particularly rigorous; they are truly minimum standards.
In addition, defense counsel in capital cases (including those in states with guidelines or standards) rarely has the resources necessary to mount an effective defense. It is not unusual for attorneys in capital cases to be compensated at less than minimum wage, and states have been known to appoint attorneys in capital cases who submitted the lowest bids (Bright, 1997b).
Punish the Misconduct of Defense Attorneys
Most acts of misconduct by defense attorneys in capital cases should result in the attorney being disciplined by the state bar association. Where applicable, such disciplined attorneys should be removed from the roster of attorneys eligible to handle death penalty cases. For egregious cases of misconduct, defense attorneys should be disbarred.
Improve Police Investigations, Interrogations, and the Handling of Evidence
Police should keep an open and objective mind during investigations. They should investigate crimes rather than trying to build a case against a likely suspect. Once a suspect has been identified, the police should continue to pursue all reasonable leads, whether they point toward or away from the suspect.
To reduce the number of false confessions, defense counsel should be provided to indigent suspects during police interrogation in potential death penalty cases. When there is doubt about whether the suspect is indigent, defense counsel should be provided. Police should also make a reasonable attempt to determine if a suspect is mentally retarded. If the suspect is deemed mentally retarded, the police should not ask leading questions (mentally retarded suspects are inclined to agree with the police version of events) and/or suggest that they believe the suspect is guilty.
In potential death penalty cases, the entire police custodial interrogation should be videorecorded to help validate the interrogation and confessions. Where videorecording is not feasible, audiorecording should be substituted. Interviews with significant witnesses in homicide cases should also be electronically recorded.
To make certain that the police provide all the evidence in their possession to the prosecution (a) all relevant evidence, including exculpatory evidence and its location, should be listed on schedules by the police, (b) specific police officers or employees should be assigned recordkeeping responsibility, and (c) prosecutors should be given certified written copies of the evidence schedules by the police.
Improve Eyewitness Identification Techniques and Procedures
Experts agree that the accuracy of eyewitness identifications could be greatly improved if several policy reforms were adopted in all jurisdictions, including the videotaping of all lineups, photo spreads, and other identification processes so that later any biases, suggestions, or hints that infected the process could be exposed and evaluated. In addition, convictions for murder based on the testimony of a single eyewitness or accomplice, without any other corroboration, should never be eligible for the death penalty.
Punish Police Misconduct
Depending on the seriousness of the misconduct, offending police officers should be reprimanded, suspended without pay, decertified (if applicable), or terminated. Particularly serious misconduct by police officers should be prosecuted in the federal courts.
Improve the Work and Credibility of Crime Lab Technicians
To promote greater credibility in the work of crime lab technicians, such labs and their budgets should be independent and not under the supervision of a police department or prosecutor's office, as is typically the case. Crime labs should also be accredited by professional organizations and subject to regulatory oversight and external blind proficiency testing (in which samples are sent in as ordinary evidence to corroborate the validity of results). Agent technicians who make mistakes should be disciplined.
Require DNA Testing
DNA testing should be required in cases in which DNA evidence is available and there is a reasonable probability that the DNA results could exonerate the defendant
Set Rigorous Standards for Jailhouse Snitches/Informants
Before allowing a jailhouse snitch/informant to testify, a committee of prosecutors should be able to provide satisfactory answers to the following questions: (a) Is there corroborating evidence to support their statement, other than the testimony of another snitch? (b) Does the statement provide details of the crime, or lead to evidence that could only be known by the perpetrator? (c) Could the incriminating evidence have been obtained from a source other than the accused, such as press accounts or legal proceedings? (d) Does the snitch/informant have a reputation for being dishonest? And (e) Does the snitch/ informant regularly provide incriminating evidence? There should be a presumption that the testimony of a jailhouse snitch/informant is unreliable, and the prosecutor should be required to overcome that presumption before a jury is allowed to hear the evidence. Any deal that police officers or prosecutors make with a snitch/informant should be recorded, preferably videotaped. Finally, the uncorroborated testimony of a jailhouse snitch/informant witness about the confession or admission of the defendant should never be the sole basis for imposition of a death penalty.
Guide Prosecutors’ Decisions to Seek the Death Penalty
Statewide written protocols should be developed to guide county prosecutors in making death penalty determinations. The guidelines should include the requirement that each county prosecutor establish within his or her office a committee to review homicide cases where the death penalty may be sought in order to assist the prosecutor in making the decision. Prior to trial, the governor should appoint a state-wide committee to review death eligibility decisions made by prosecutors. When the committee decides that death is not the appropriate sentence in the case, the prosecutor should not be authorized to overrule and to seek the death penalty. Committee authorization of the death penalty should become mandatory and required by statute.
Improve Disclosure Requirements
The prosecutor should be required to file a certificate with the court at least 14 days before the date set for the trial guaranteeing that all material that is required to be disclosed to the defense has been disclosed. Following conviction, the prosecutor should have a continuing obligation to make timely disclosure to the defendant's counsel, or the defendant if not represented by counsel, of the existence of evidence known to the prosecutor that tends to negate the guilt of the defendant or mitigate the defendant's capital sentence.
Punish Prosecutor Misconduct
For extreme misconduct, prosecutors should be criminally prosecuted. At the least, statutes should be narrowed that grant prosecutors broad immunity from civil suits in cases of intentional misconduct. For egregious cases of misconduct, prosecutors should be disbarred.
Better Training and Certification of Trial Judges in Capital Cases
Capital case training should be provided for all trial judges who preside over capital cases. The training should be required before a judge hears a capital case. A statewide bench manual covering capital cases should also be developed and used. Trial judges should be certified to hear capital cases by the state supreme court or the chief judges of judicial circuits. Certification should be based on experience and training. Only certified judges should hear capital cases.
Give Trial Judges Veto Power
The trial judge should have to indicate on the record whether he or she agrees with the jury's sentence of death. When the judge does not agree with the jury's death sentence, the defendant must not be sentenced to death.
Eliminate Time Limits and Other Constraints on Claims of Actual Innocence
Claims of actual innocence in capital cases based on newly discovered evidence should be heard by a court of record any time after conviction, without regard for other post–conviction matters or timing. Also, state “closed discovery” laws should be repealed. Those laws prevent defense attorneys or journalists from reviewing evidence following a conviction, thus making the detection of miscarriages of justice even more difficult.
Improve the Clemency Process
To make officials more accountable in their decision making, clemency boards should hold public hearings to determine their recommendations to the governor. Governors should meet personally with attorneys and should be required to provide the public with an explanation of their clemency decisions. Better yet, to depoliticize the process, clemency decisions should not be made by governors, but, instead by respected three-judge panels.
Moratorium
Short of total abolition, some observers, including some respected individuals who support the death penalty in principle, have called for a moratorium on executions until some of the more egregious problems with its administration are fixed.
Conclusion
Currently, the United States is one of only 57 countries in the world to retain the death penalty; more than 70% of the world's nations have abolished it in law or in practice (Amnesty International, 2012). As noted previously, 35 jurisdictions in the United States have capital punishment statutes; 18 jurisdictions do not. In 19 of those 35 jurisdictions, fewer than 10 inmates have been executed since 1976. Three of those 19 jurisdictions—Kansas, New Hampshire, and the U.S. military—have not executed anyone since at least 1976. On the other hand, five death penalty jurisdictions have executed nearly two-thirds of the inmates executed since 1976: Texas, Virginia, Oklahoma, Florida, and Missouri. Texas, alone, accounts for 37% of all executions in the United States since 1976. Thus, except for fewer than 30% of the world's countries, a handful of states in the United States, and a few counties in those states, the death penalty is a dying practice. Clearly, those countries and states without a death penalty (or without imposing the death penalty) are able to administer justice and avoid calamities without capital punishment.