Arbitrary death: an empirical study of mitigation.

Author:Hughes, Emily

Table of Contents Introduction I. The Historical Context of Capital Mitigation A. Supreme Court Cases: Mitigation as a Means to Temper Arbitrariness 1. Early Post-Furman Cases 2. The Second Wave a. 2000-2009: Williams, Wiggins, and Rompilla b. 2009-2010: The Supreme Court's 2009-2010 Term i. Constitutionally Adequate Investigations ii. Constitutionally Inadequate Investigations B. State Court Case Studies 1. Illinois 2. Arizona II. Experiences of Capital Mitigation Specialists A. Empirical Study Design B. The Hope of Mitigation 1. The Professionalization of Capital Mitigation 2. The ABA Guidelines'Role in Developing Norms C. The Fiction of Mitigation 1. Inadequate Resources to Support Mitigation 2. Skepticism Toward Mitigation III. The Arbitrary Imposition of Death A. Evidence of Arbitrariness B. Possibilities for Reform 1. Justice Through Mitigation 2. Justice Beyond Mitigation Conclusion Introduction

A capital jury's opportunity to consider mitigating evidence is one of the critical procedures the Supreme Court has endorsed to alleviate arbitrariness in the jury's decision of whether a defendant deserves to die. (1) This Article presents original empirical research suggesting that the system of gathering such evidence about a defendant's life history and presenting it to juries is deeply flawed. Interviews with thirty mitigation specialists who have represented over 700 capital defendants in twenty-five death penalty states reveal that mitigation operates in an arbitrary manner. (2) Mitigation has thus introduced new forms of arbitrariness into the death penalty instead of alleviating it altogether.

After Furman v. Georgia (3) invalidated existing death penalty statutes because unguided discretion had led to the arbitrary imposition of death sentences, (4) roughly two-thirds of the states redrafted their capital sentencing statutes to limit jury discretion and thereby avoid arbitrary results. (5) Without endorsing a specific sentencing scheme, when reviewing the states' newly crafted statutes the Supreme Court noted that its concerns about arbitrariness were "best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information." (6)

States interpreted this language to mean that capital sentencing decisions were unconstitutionally arbitrary if they were not guided by statutes that allowed for individualized consideration of the defendant's crime (aggravating evidence), as well as individualized consideration of the particular circumstances of the defendant's life (mitigating evidence). (7) States therefore redrafted their death penalty statutes to include consideration of both aggravating and mitigating evidence. (8) As the Court reviewed these newly revised statutes throughout the mid to late 1970s, the Court largely concluded that because states had added consideration of aggravating and mitigating evidence, capital sentencing decisions were no longer arbitrary. (9) Nonetheless, Justice Brennan vehemently disagreed in a strongly worded dissent in Pulley v. Harris, criticizing the Court for "deluding" itself by thinking that the death penalty was no longer arbitrarily imposed. (10)

The interviews with contemporary mitigation specialists that form the empirical basis of this Article underscore the continuing relevance of Justice Brennan's concern. The interviews reveal ways in which the imposition of the death penalty still rests on unconstitutionally arbitrary underpinnings.

These findings present a contemporary perspective that builds on my own prior research as well as that of other scholars. (11) The Capital Jury Project is a national consortium of researchers studying how jurors in capital cases make the decision of whether to sentence a capital defendant to life or death. (12) Capital Jury Project researchers have interviewed more than 1,200 jurors who actually made the life or death sentencing decisions for more than 350 capital trials in more than fourteen different states. (13) "Despite the reforms inspired by Furman and approved in Gregg," the Capital Jury Project's research "demonstrates that jurors are not deciding who deserves the death penalty in the way the [United States] Supreme Court has held the constitution requires." (14)

In the same way that the Capital Jury Project has focused on jurors, so other scholars have focused on attorneys. Six years ago, Welsh S. White published a study based on interviews with thirty capital defense attorneys. (15) White found that post-Furman reforms have heightened the importance of attorneys' skills on the jury's capital sentencing decision: the worse the attorney's skills, the more certain a defendant will be sentenced to death. (16) White further explained that because thorough investigation often differentiates the most effective capital defense attorneys from other lawyers, (17) a capital defendant assigned a poorly skilled attorney who failed to conduct a thorough mitigation investigation is more likely to receive a death sentence. (18) White concluded, "[T]here is thus no reason to believe that the post-Furman reforms have diminished or will diminish the extent to which the death penalty will be arbitrarily applied. " (19) Even though White identified a critical link between a defense attorney's ability to use mitigating evidence at trial and the exhaustive mitigation investigation that must precede the trial, he did not focus on the process of conducting the mitigation investigation itself. (20)

This Article moves beyond jurors and attorneys to look at mitigation specialists. Mitigation specialists uncover extensive information about the life of the capital defendant from the defendant's family, teachers, friends, and almost anyone who has ever been part of the defendant's life. They do this work to construct a psychosocial history, or life history, of the capital defendant. This life history helps defense counsel explain to jurors why punishment less than death is appropriate for the particular capital defendant. (21) In addition to their critical importance during the sentencing phase, mitigation specialists ensure that attorneys methodically and thoughtfully integrate mitigating evidence into the overall preparation of the case, which includes pre-trial negotiations, jury selection, and the guilt/innocence phase. (22) Indeed, a thorough mitigation investigation is crucial to all stages of a capital case and is not relegated exclusively to the sentencing phase or even to the trial. The investigation of mitigating evidence can sometimes lead to pre-trial plea negotiations in which the defendant agrees to plead guilty and receive a sentence of life without parole. (23) Similarly, a prosecutor may decide to try the defendant for a first-degree murder rather than for a capital crime because of something the defense learned during the mitigation investigation. (24)

Despite the critical role that mitigation specialists serve, scholars have not studied their significance within the death penalty system. (25) This Article fills that gap. Through in-depth interviews with capital mitigation specialists nationwide, this Article explores what mitigation specialists encounter as they investigate a capital client's life history. For example, sometimes mitigation specialists have adequate funding to conduct detailed investigations of a capital client's life history, while other times mitigation specialists cannot conduct any investigation whatsoever because the judge will not approve their appointment on the case. By analyzing mitigation specialists' experiences, my research develops a critical corollary to White's thesis regarding the arbitrariness of the death penalty. My research suggests that because of the extreme disparity in the way mitigation investigations actually work, post-Furman reforms have not eliminated arbitrariness in capital sentencing decisions. (26)

Part I provides an overview of Supreme Court and select state precedent relevant to the intersection of arbitrariness and mitigation. Part II presents empirical evidence from an original qualitative study of thirty capital mitigation specialists. Following a brief description of the project design and methodology, this Part describes what mitigation specialists encounter when investigating and developing the life history of capital defendants. The interview data from this research reveal that even though mitigation specialists strive to conduct thorough investigations, they are often thwarted in their ability to do so. Part Ill analyzes how the experiences of mitigation specialists contribute to the arbitrariness with which the death penalty is administered and proposes reform. It concludes that reform is necessary to enable all capital defendants, in all death penalty jurisdictions, to receive constitutionally sound mitigation investigation and advocacy. Unless such mitigation reform is achieved, sentencers will risk imposing the death penalty arbitrarily and therefore unconstitutionally.

  1. The Historical Context of Capital Mitigation

    In order to situate this Article's findings within the historical context of capital mitigation, this Part begins with a brief analysis of some of the Court's fundamental capital cases. This analysis is divided into two time frames: (1) the Court's early post-Furman cases addressing mitigation, which span the late 1970s; and (2) the "second wave" of the Court's mitigation cases, beginning in 2000 and extending through the last day of the Court's 2009-2010 term. Following this analysis, the second section of this Part analyzes state court opinions to explore how two state jurisdictions--Arizona and Illinois--implemented the Court's mitigation precedent. (27)

    1. Supreme Court Cases: Mitigation as a Means to Temper Arbitrariness

      Furman v. Georgia is a well known per curiam decision overturning...

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