Capital punishment: advocates' deadly combination of inadequacy and misconduct.

• Author: Bush, Anthony Brian

"I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." (1)

1. INTRODUCTION

   The nexus between the Eighth Amendment's ban on governmental imposition of "cruel and unusual punishments" (2) and the death penalty continues to be a controversial topic among judges, scholars, students, and others who have given it a moment's reflection. In an attempt to reconcile this relationship, the Supreme Court held that imposition of the death penalty must be analyzed under "evolving standards of decency that mark the progress of a maturing society." (3) Recently, the Court's application of this standard resulted in the categorical exclusion of two classes of defendants from death penalty eligibility. (4) The first exclusion came in 2002 when the Court ruled that executing those who are mentally "retarded" is a "purposeless and needless imposition of pain and suffering." (5) Three years later, the Court held that executing defendants who were juveniles at the time they committed the crime is unconstitutional. (6) Notwithstanding the indecency of executing the innocent, the lack of recognition for such incidents continues to inhibit the maturation of our society.

   This essay argues that the current administration of the death penalty is a violation of the Constitution's prohibition of "cruel and unusual punishments." Section II briefly summarizes the history of the death penalty in this country, beginning with its temporary moratorium and concluding with the resultant legislative refinement. Sections HI and IV analyze the problems of ineffective assistance of counsel, prosecutorial misconduct, and the significance of each in the realm of capital punishment. In addition, the latter two sections illustrate the standards for evaluating each advocate's conduct and suggest some remedial measures for alleviating these administrative shortcomings.

2. POST-FURMAN HISTORY OF THE DEATH PENALTY

   In 1972, for the first time in our history, the Supreme Court in Furman v. Georgia (7) held that the states' method for administering the death penalty was cruel and unusual punishment in violation of the Eighth Amendment. (8) The majority opinion, delivered by Justice Potter Stewart, acknowledged that the arbitrary and capricious manner in which the states implemented the death penalty was unconstitutional. (9) Justices Brennan and Marshall, concurring with the result but not the reasoning, concluded that the death penalty, in and of itself, was "per se" unconstitutional. (10)

   The Furman Court based its holding on the administration of capital punishment in two southern states: Georgia and Texas. The Georgia statute provided that punishment for a convicted murderer was death, however, under two exceptions the punishment could be life in prison: if the conviction was based exclusively on circumstantial testimony or the jury returned a recommendation of mercy. (11) The Texas statute gave the jury the discretion to sentence the convicted murderer to either death or a prison sentence greater than two years. (12) Due to a lack of standards to limit sentencing discretion, the administration of such death penalty statutes was unconstitutional. (13)

   Subsequently, Congress and nearly thirty-five states (14) rewrote their death penalty statutes to comply with the majority's dictates in Furman by either establishing procedural safeguards or crime-specific mandatory sentencing. (15) Four years later, the Court revisited and upheld the constitutionality of the death penalty in Gregg v. Georgia, (16) Proffitt v. Florida, (17) and Jurek v. Texas. (18) These revised statutes mandated that a state could impose the death penalty only after meeting two criteria; a jury must find aggravating factors at a sentencing hearing following a determination of guilt and the jury's decision must be subject to meaningful appellate review. (19)

   Notwithstanding this legislative reform commencing with Gregg, errors in the administration of the death penalty continue to occur at an alarming rate. (20) Incompetent defense counsel, prosecutorial misconduct, improper jury instructions, and judge and jury biases are among these administrative errors. According to one study, 92% of all states with the death penalty have error rates of at least 52%. Eighty-five percent of those states have error rates of at least 60%, and most disturbingly, 61% of those states have error rates of at least 70%. (21) Inescapably, the combination of such high error rates and the fact that our state and federal governments have executed 1,070 inmates since Gregg's revocation of Furman's "de facto moratorium" (22) leads to the conclusion that governments have executed innocent people. (23)

   The frequency of wrongful convictions in capital cases, in conjunction with the substantial variations in the death penalty's administration among those states with capital punishment, (24) illustrates that these various administrations share common deficiencies. One study, based on the examination of forty-eight exonerations, concluded that the factors contributing to these errors were racial prejudice, mental incompetence, inadequate defense counsel, prosecutorial misconduct, and faulty forensic science. (25) Comparatively, a second report revealed that the three most common errors in capital cases are extremely incompetent defense counsel, prosecutorial misconduct, and faulty jury instructions. (26) This second report, which involved every death penalty appeal from 1973 until 1995, found that the overall prejudicial error rate in those particular capital cases was 68%. (27)

   One possible explanation for such error rates across administratively diverse capital punishment regimes is the fact that partisan advocates, some who either are inadequate or disregard our judicial system and the rules of ethics, administer each regime. Reports indicating that the two most prevalent errors in capital punishment are ineffective assistance of counsel and prosecutorial misconduct expound upon this explanation. As a result, we may be unable to rest on the supposition that either defense counsel or prosecutors will further the ultimate objective of convicting the guilty and freeing the innocent. (28) The following sections analyze both administrative deficiencies and illustrate the relationship of each with the possibility of erroneous executions.

3. INEFFECTIVE ASSISTANCE OF COUNSEL

   Perhaps the most pervasive problem with the current administration of the death penalty is the quality of representation defense attorneys provide to defendants. Albeit somewhat nebulous, effective assistance of counsel is essential in our adversarial system of criminal justice, without which, defendants are often deprived of their constitutional rights. (29) Too often, a jury sentences a defendant to death because of the ineffectiveness of the defendant's lawyer rather than the "heinousness of the crime or the incorrigibility of the defendant." (30) Ineffective assistance is pervasive in all spheres of indigent representation; however, this section focuses strictly upon its impact on the administration of the death penalty.

   Various individuals within the legal profession have acknowledged ineffective representation and its impact on capital cases. (31) In 1986, Justice Thurgood Marshall noted that, "capital defendants frequently suffer the consequences of having trial counsel who are ill equipped to handle capital cases." (32) Fifteen years later, Justice Ruth Bader Ginsburg said, "I have yet to see a death case among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented at trial." (33) In concurrence, Justice Sandra Day O'Connor expressed her concern that state and federal governments were possibly executing defendants because of inadequate representation. (34)

   The overwhelming number of capital cases in which either inexperienced or inadequately resourced defense lawyers have represented indigent defendants warrants these assessments. Lawyers without knowledge of either their state's death penalty statute or the bifurcated process of a capital trial have represented capital defendants who received death sentences. (35) Various governmental branches have imposed death sentences in situations including those where defense counsel slept through most of the trial, (36) referred to his own client using racial epithets, (37) appeared before the court intoxicated, (38) filed an appellate brief consisting of one page of argument, (39) and failed to present mitigating evidence during the sentencing phase. (40)

   Section A of this comment chronicles a defendant's constitutional right to the effective assistance of counsel, beginning with the Sixth and Fourteenth Amendments to the United States Constitution and concluding with some important United States Supreme Court decisions interpreting these amendments. Next, section B explains the requirements of making a successful ineffective assistance of counsel claim. Section C focuses on the primary factors contributing to ineffective assistance of counsel: the lack of funding and the Strickland standard for evaluating counsel performance that is practically insurmountable for indigent defendants attempting to raise such claims. In conclusion, section D offers some suggestions to improve the effectiveness of defense counsel including better compensation and reformulating the Strickland standard.

   1. The Right to the Effective Assistance of Counsel

      The Supreme Court has based the right to the effective assistance of counsel on two constitutional amendments: the Sixth Amendment (41) and the Due Process Clause of the Fourteenth Amendment. (42) The Sixth Amendment states, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." (43) The Fourteenth Amendment's Due...