Time to abandon the death penalty?

 

1.  How frequently are death penalty trials infected by constitutional errors that go uncorrected?

 

2.  What is the cost of a death penalty trial, and how does that cost compare to the cost of life in prison?

 

3.  In non death penalty contexts, people who allege race discrimination can use statistics to demonstrate their case. If defendants facing execution could also use statistical evidence to establish race discrimination, what impact would it have?

 

4.  Given the impossibility of eliminating mistakes altogether, how high an error rate, if any, should be tolerable in the death penalty system?

 

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1.  How frequently are death penalty trials infected by constitutional errors that go uncorrected?

 

Between 1976, the year the death penalty was reinstated after a four-year moratorium, and 1995, the year before Congress enacted the Anti Terrorism and Effective Death Penalty Act (AEDPA), death row inmates succeeded in their appeals around two-thirds of the time, according to a 2000 Columbia University study. 

 

This statistic does not mean that death row inmates walked out of prison; it means they got new trials, or new sentencing trials. Many were sentenced to death again, but many others were sentenced to life in prison. One result of this comprehensive study is to provide documentation of how commonly constitutional errors affect capital trials. And that number is, in fact, a conservative assessment of the pervasiveness of error, because in many contexts the error will be overlooked if it is deemed harmless by the appellate court. For example, if the police coerce a confession from a defendant, the defendant’s rights under the Fifth Amendment have been violated, but the Supreme Court has held that a defendant whose confession is coerced is not entitled to a new trial if there is other corroborative evidence of his guilt. So the two-thirds statistic tells us that constitutional error occurred in at least two of every three capital cases.  

 

Thus, the AEDPA, signed by Bill Clinton, has let many more constitutional errors go uncorrected since judges can grant inmates relief only if they conclude that the state court’s decision upholding the conviction and sentence were “objectively unreasonable.” The Supreme Court has ruled that a state court can get the wrong answer – that is, it can be wrong – and yet its decision will still not be objectively unreasonable unless no reasonable jurist could have arrived at that decision. The consequence of this unprecedented limitation on the power of federal courts to grant relief even when they are convinced that an inmate’s rights were violated is that death row inmates now prevail in their appeals well under 10 percent of the time – compared to 67 percent before the law was enacted. 

 

It is a mistake to think that death penalty trials are significantly more error-free than they were 15  years ago. What is different today is that errors are not remedied.  

 

2. What is the cost of a death penalty trial, and how does that cost compare to the cost of life in prison?

 

One of the common misunderstandings is that death penalty cases are expensive because of the several lawyers of appeals. And indeed, a typical death penalty case has three appeals: two in the state court system, and one in the federal court system.  

 

But these appeals are not what makes capital cases so expensive. The overwhelming percentage of costs are incurred before and during the trial. The central reason for this cost is that death penalty trials have two distinctive and expensive aspects. First, because the range of evidence relevant to whether the state should execute someone is so broad, death penalty lawyers spend a year or more prior to the trial investigating every aspect of their client’s background in an effort to learn and acquire evidence that might persuade the jury to spare his life. If one lawyer and one investigator spend 20 hours a week for 50 weeks locating and interviewing witnesses, and gathering and analyzing records (including school records, hospital records, employment records, military service records, and records from prior incarcerations, including juvenile incarcerations), they will aggregate 1,000 hours in trial preparation. At any hourly rate of $100, the case has already cost $100,000 before any experts have been paid, before the prosecution’s costs have been tallied, and before the trial has even started. Once the trial does start, the lawyers will spend several weeks, sometimes up to two months, picking the jury. In contrast, in a non death penalty case, a jury is usually seated in several hours. If it takes three weeks to pick the jury, the cost in defense legal fees alone just for picking the jury exceeds $37,000 (15 days X 10 hours / day X $250). Again, the trial has not even started, and we have not accounted for costs born by the state.  

 

All told, death penalty cases run from a low of $1.5 million, to $4 million or more, and at least three-fourths of those costs are trial-related–meaning no amount of streamlined appeals will reduce the figure substantially. 

 

In contrast, it costs less than $20,000 a year to confine a prisoner in a maximum security prison. If a convicted murderer has a life expectancy of 40 years inside prison (life expectancies are predictably lower than they are outside of prison), it will cost $800,000 to keep a prisoner locked up for the rest of his life – or somewhere between half and 20 percent as much as it will cost to execute him. 
 

3.  In non death penalty contexts, people who allege race discrimination can use statistics to demonstrate their case. If defendants facing execution could also use statistical evidence to establish race discrimination, what impact would it have?

 

In the mid 1980s, the Supreme Court ruled that defendants facing the death penalty cannot use statistics to demonstrate that the system discriminates on the basis of race. The case involved a comprehensive study in Georgia led by the late University of Iowa law professor David C. Baldus.  

 

The study showed that black defendants are nearly twice as likely as white defendants to be sentenced to death, and that murderers whose victim is white are nearly four times as likely to be sentenced to death as murderers whose victim is nonwhite.  

 

Since that time, the study has been replicated in more than a dozen jurisdictions, and the results have been more or less the same everywhere. In fact, since the death penalty was reinstated in 1976, around 80 percent of the people who have been executed in the U.S. were executed for killing a white person, even though blacks and whites are victims of homicide in roughly equal numbers. 

 

In Texas, where there have been more nearly 470 executions, only three have involved a white murderer whose victim was black. North Carolina recently enacted a measure that permits death row inmates to challenge the constitutionality of their sentence by relying on data like these. But under federal law, such challenges remain impermissible.  

 

4.  Given the impossibility of eliminating mistakes altogether, how high an error rate should be tolerable in the death penalty system?

 

One of the most important psychological developments over the past generation to have occurred in the criminal justice context has been the undermining of our certainty that the system is largely error-free. There have been more than 289 DNA post-conviction exonerations since the mid 1980s, and where DNA is involved, then we can be certain – to the extent we can ever be certain about anything – that an innocent man was sent to prison. In nearly three-fourths of the DNA cases, there was eyewitness testimony pointing to the accused. In nearly a quarter of the cases, there was a confession.   

 

Although death penalty cases typically do not involve DNA, they do involve the two types of evidence – eyewitness testimony and confessions – that the DNA cases have revealed to be remarkably unreliable. Estimates are that somewhere between 4 and 8 percent of the inmates on death row are innocent. No one knows how many innocent people, if any at all, have been executed. But in view of these data, it would take an uncommon degree of nonchalance to think no one has.  

 

Many people would refuse to get on an airplane that had a five percent chance of crashing. At what point does the number of crashes in the death penalty domain mean that it is a system we should abandon?