CHAPTER 10 CAPITAL CASES
Jurisdiction | North Carolina |
Chapter 10 Capital Cases
In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the United States Supreme Court ruled that the "the imposition and carrying out of the death penalty in [Furman and its companion] cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id., 408 U.S., at 239-240 (per curiam). The five justices who arrived at that conclusion did so for different reasons (each wrote individually, without joining the others' opinions). Furman now is commonly interpreted as invalidating death-penalty laws that fail to constrain sentencing discretion adequately, thus risking arbitrary capital punishment decisions. As a result of this momentous ruling, the death-penalty statutes in effect throughout the country were declared unconstitutional and more than 600 prisoners awaiting execution had their death sentences commuted to life imprisonment.1
Legislatures in a majority of the states quickly re-enacted death-penalty statutes that were designed to comply with Furman's uncertain mandate. In 1976, the Supreme Court approved newly enacted laws that narrowed the range of death-eligible crimes and incorporated standards to guide capital sentencing discretion.2 At the same time, the Court declared unconstitutional legislation that made capital punishment mandatory on conviction for designated crimes.3 In arriving at those decisions, using language that would be echoed repeatedly in later rulings, the justices announced that, for purposes of constitutional analysis, "death is different" from other forms of criminal punishment.
[T]he penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case. Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion).
Because the death penalty is uniquely severe as well as irrevocable, many people would agree that wrongful convictions in capital cases are "qualitatively different" from other miscarriages of justice, and that "a corresponding difference in the need for reliability" attaches to capital murder trials. We know, however, that erroneous capital murder convictions not only have occurred in the post-Furman era, but have been revealed with uncommon regularity. In 2008, Professors Samuel Gross and Barbara O'Brien explained:
Since 1973, 128 U.S. criminal defendants who were sentenced to death have been exonerated. This is a startlingly high number, considering that death sentences amount to less than one-tenth of 1 percent of prison sentences in the United States. Most likely, this extraordinary number of capital exonerations is caused in part by a higher underlying error rate among capital convictions and in part by a higher rate of detection of those errors after conviction. It is well known that more resources are devoted to capital defense than to other cases, before and after conviction, but it is hard to believe that better review alone explains the capital exoneration rate. If that were the whole story, it would mean, for example, that if we had reviewed prison sentences with the same level of care that we devoted to death sentences, there would have been approximately 87,000 non-death-row exonerations from 1989 through 2003 rather than the 266 that were reported in a comprehensive study in 2005.4
We have discussed reports that shed light on the incidence and causes of wrongful capital convictions in earlier chapters and we already have encountered many such cases. With the possible exception of the emergence of DNA exonerations, the awful prospect of executing an innocent person has been unrivaled in helping to focus attention on wrongful convictions in the United States.5 In the following sections, we examine a number of issues relating to miscarriages of justice in capital cases.
1. Quinones I, II, and III
RAKOFF, District Judge.
The Federal Death Penalty Act, 18 U.S.C. §§3591-3598, serves deterrent and retributive functions, or so Congress could reasonably have concluded when it passed the Act in 1994. But despite the important goals, and undoubted popularity, of this federal act and similar state statutes, legislatures and courts have always been queasy about the possibility that an innocent person, mistakenly convicted and sentenced to death under such a statute, might be executed before he could vindicate his innocence — an event difficult to square with basic constitutional guarantees, let alone simple justice. As Justice O'Connor, concurring along with Justice Kennedy in Herrera v. Collins, 506 U.S. 390 (1993), stated: "I cannot disagree with the fundamental legal principle that executing the innocent is inconsistent with the Constitution. Regardless of the verbal formula employed — 'contrary to contemporary standards of decency,' 'shocking to the conscience,' or offensive to a 'principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental'—the execution of a legally and factually innocent person would be a constitutionally intolerable event." Id. at 870.
To the majority in Herrera, however, as to most judges and legislators at the time (1993), the possibility that an innocent person might be executed pursuant to a death penalty statute seemed remote. Thus, Chief Justice Rehnquist, writing for the Court in Herrera, discounted as potentially unreliable a study that had concluded that 23 innocent persons were executed in the United States between 1900 and 1987. See Herrera, 113 S.Ct. at 868, n. 15. While recognizing that no system of justice is infallible, the majority in Herrera implicitly assumed that the high standard of proof and numerous procedural protections required in criminal cases, coupled with judicial review, post-conviction remedies, and, when all else failed, the possibility of executive clemency, rendered it highly unlikely that an executed person would subsequently be discovered to be innocent.
That assumption no longer seems tenable. In just the few years since Herrera, evidence has emerged that clearly indicates that, despite all the aforementioned safeguards, innocent people —mostly of color—are convicted of capital crimes they never committed, their convictions affirmed, and their collateral remedies denied, with a frequency far greater than previously supposed.
Most striking are the results obtained through the use of post-conviction testing with deoxyribonucleic acid ("DNA"). Although DNA testing is of remarkably high reliability, its value as a forensic tool in criminal investigations was not demonstrated until 1985 and its use in re-evaluating prior convictions was only beginning at the time Herrera was decided in 1993. Yet in just the few years since then, DNA testing has established the factual innocence of no fewer than 12 inmates on death row, some of whom came within days of being executed and all of whom have now been released.4 This alone strongly suggests that more than a few people have been executed in recent decades whose innocence, otherwise unapparent to either the executive or judicial branches, would have been conclusively established by DNA testing if it had been available in their cases.
The problem, however, goes well beyond the issue of the availability of DNA testing. Indeed, the success of DNA testing in uncovering the innocence of death row defendants has itself helped spark reinvestigation of numerous other capital cases as to which DNA testing is unavailable or irrelevant but as to which other techniques can be applied. Partly as a result, in just the past decade, at least 20 additional defendants who had been duly convicted of capital crimes and were facing execution have been exonerated and released.5 Again, the inference is unmistakable that numerous innocent people have been executed whose innocence might otherwise have been similarly established, whether by newly-developed scientific techniques, newly-discovered evidence, or simply renewed attention to their cases.
Moreover, even the frequency of these recent exonerations resulting from DNA testing and from fresh attention to neglected cases hardly captures either the magnitude of the problem or how little it was recognized until recently. It was not until the year 2000, for example, that Professor James S. Liebman and his colleagues at Columbia Law School released the results of the first comprehensive study ever undertaken of modern American capital appeals (4,578 appeals between 1973 and 1995). That study, though based only on those errors judicially identified on appeal, concluded that "the overall rate of prejudicial error in the American capital punishment system" is a remarkable 68%. James S. Liebman, et al., A Broken System: Error Rates in Capital Cases (2000) at ii. No system so "persistently and systematically fraught with error," id., can warrant the kind of reliance that would justify removing the possibility of future exoneration by imposing death.
Just as there is typically no statute of limitations for first-degree murder—for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time—so too one may ask whether it is tolerable to put a time limit on when someone wrongly convicted of murder must prove his innocence or face extinction. In constitutional terms, the issue is whether — now that we know the fallibility of our system in capital cases — capital punishment is unconstitutional because it creates an undue risk that a meaningful number...
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