Capital Punishment in America.

• Author: White, Welsh S.

The execution of Robert Harris in California on April 21, 1992, indicates that the pattern of American executions, which has changed dramatically over the past three decades, may be ready to shift again. During the mid-1960s, executions, which had occurred at the rate of about fifty per year in the late 1950s,(1) slowed to a trickle and then stopped.(2) As a result of a series of Supreme Court decisions, culminating in Furman v. Georgia,(3) which held the then-existing system of capital punishment unconstitutional, no executions occurred from June 2, 1967 until January 17, 1977. In the late 1970s, executions resumed under a new legal structure,(4) but until the mid-1980s few people were actually executed.(5) Starting in 1984, defendants have been executed at the rate of about twenty per year, but these executions have taken place primarily in six southern states.(6) Although many defendants in large nonsouthern states have been sentenced to death,(7) Harris was one of the first to be executed after full pursuit of all legal remedies.(8) Harris' execution foreshadows nationwide application of capital punishment, which means that substantially more defendants are likely to be executed.

Against this backdrop, Raymond Patemoster's informative book on capital punishment is timely and significant.(9) Capital Punishment in America is not a work of original research, but a consideration of some of the most important issues relating to capital punishment. After providing an overview of capital punishment in the United States, Paternoster considers capital punishment's legal and constitutional issues, the death penalty's operation, and arguments for and against the death penalty and concludes with a prediction that capital punishment will eventually disappear. Clearly written, with helpful tables and extensive references, the book is valuable either as a text for students who have not yet studied capital punishment or as a source for those who want to explore a particular aspect of the subject in greater detail.

1. An Overview of Capital Punishment

   Capital Punishment in America aims to provide a comprehensive picture of the death penalty in this country and to predict its future. The book's success in presenting a clear picture of the various aspects of capital punishment is decidedly uneven, however. Not surprisingly, given his background as a social scientist, Paternoster stands on surer ground when he deals with the empirical or philosophical aspects of capital punishment than when he tackles legal or constitutional issues. Moreover, the unclear picture that Paternoster's latter discussion provides of both death penalty litigation and the direction of death penalty jurisprudence constitutes an insecure foundation for his bold prediction of capital punishment's demise.

   Paternoster is most effective in analyzing the empirical data relating to capital punishment's application. Although this material is somewhat technical, Paternoster's exposition provides a reasonably clear picture of who is being executed. His review of the empirical studies indicates that, even in states that have a substantial death row population, juries impose the death sentence on convicted murderers in only about twenty percent of the cases (pp. 168-69). He also maintains that, except in cases with the most aggravated circumstances,(10) no close correlation exists between findings of aggravated circumstances and imposition of the death penalty (pp. 165-67). Moreover, the data convincingly demonstrate that the victim's race is an important variable in capital sentencing. Assuming that all other factors are similar, the killer of a white victim in Georgia is more than five times as likely to be sentenced to death than the killer of a nonwhite victim (p. 134), and, of all possible racial combinations, blacks who kill whites are most often sentenced to death (p. 157). These data, buttressed by similar findings from other states, provide ample support for Paternoster's conclusion that the death penalty continues to be arbitrarily imposed (pp. 182-83).

   Paternoster's consideration of the penological arguments for and against the death penalty also provides a valuable picture of certain aspects of capital punishment. His analysis of the empirical data relating to capital punishment's efficacy as a deterrent reinforces the truth of Professor Charles Black's statement, made nearly two decades ago: "[A]fter all possible inquiry, including the probing of all possible methods of inquiry, we do not know, and for systematic and easily visible reasons cannot know, what the truth about this |deterrent' effect may be."(11) In addition, Paternoster's chapter on capital punishment's cost (pp. 187-216), while not comprehensive,(12) effectively refutes the argument that retaining the death penalty as our harshest penalty is economically beneficial. Paternoster also fairly presents and then incisively criticizes some of the other leading contemporary arguments in favor of the death penalty (pp. 246-70). Overall, this part of Capital Punishment in America lucidly describes the most important arguments for and against capital punishment.

   Paternoster's treatment of the legal and constitutional issues surrounding capital punishment is less successful. In his discussion of the current legal system, he presents an accurate summary of several of the Supreme Court's most important capital punishment decisions but fails to place these cases in a framework that intelligibly depicts capital punishment's overall legal structure. Following Robert Weisberg's classic article relating to the Supreme Court's death penalty jurisprudence,(13) Paternoster summarizes the Court's decisions in Lockett v. Ohio(14) and Zant v. Stephens,(15) but, unlike Weisberg, he does not use these cases to draw clear conclusions about either the Court's role in regulating capital punishment(16) or the nature of capital punishment litigation.(17)

   Consideration of the Court's treatment of ineffective representation in capital cases provides a useful prism for examining these issues. Paternoster details several striking examples of incompetence, including a case in which the defendant's attorney, in his argument to the jury, referred to his client as "nigger";(18) one in which defense counsel had not yet read the state death penalty statute at the time of the trial;(19) and another in which the defense attorney was parking his car when the key prosecution witness was testifying.(20) After noting that innumerable similar examples exist,(21) Paternoster reviews and analyzes the Court's decision in Strickland v. Washington(22) and concludes that the Strickland test does not adequately deal with the problem of attorney incompetence in capital cases (p. 89). Because Paternoster fails to provide an overall context for assessing counsel's role in capital cases, however, his brief analysis of Strickland yields no significant insight into either the impact of counsel's inadequacies on capital punishment litigation or the nature of the legal system's response to the problems generated by counsel's frequent inadequacies. In order to provide a fuller basis for evaluating Paternoster's prediction of capital punishment's demise, I will briefly address these issues.

2. Defense Counsel's Role in Capital Cases

   A capital trial differs from most criminal trials in that it has two phases. If the defendant is convicted of a capital offense in the first phase, the case proceeds to a penalty phase at which the sentencer (usually the same jury that convicted the defendant) will have to decide whether the defendant should be sentenced to death or some lesser punishment. At the penalty trial, the prosecutor is permitted to introduce evidence relating to statutorily defined aggravating circumstances, and the defense is allowed to introduce mitigating evidence relating to either the defendant's background or the circumstances of the offense. In most jurisdictions, the sentencer then determines whether the death penalty should be imposed through a weighing of the aggravating and mitigating circumstances.(23)

   In many capital cases, the prosecutor will be able to present an overwhelming case at the guilt stage. In these cases, defense counsel's central mission will be to present an affirmative "case for life" through the introduction of mitigating evidence at the penalty stage.(24) Counsel has several objectives in presenting such evidence: to make the jury empathize with the defendant;(25) to convince the jury that the defendant will not be a future danger if his life is...