Chapter 10 Capital Cases

• Jurisdiction: United States

Chapter 10 Capital Cases

A. Introduction

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).

Whether the justices have faithfully enforced that ringing pronouncement, which later decisions have suggested applies almost exclusively to the penalty phase of capital trials, can fairly be questioned.⁴ Nevertheless, because the death penalty is both uniquely severe and 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 the guilt-determination stage of capital murder trials, as well. We know, however, that erroneous capital murder convictions have occurred in the post-Furman era. We briefly discussed reports that shed light on the incidence and causes of wrongful capital convictions in Chapter 1 and we have encountered some of these cases in other chapters. 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 issues relating to miscarriages of justice in capital cases.

B. The Risk of Error in Capital Cases

1. Estimating the Incidence of Wrongful Capital Convictions and Executions

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 2005.⁶

Exonerations in capital cases continued over the decade since this article was published. By August 1 2018, 34 additional individuals had been exonerated and released from the nation's death rows, bringing the total number of post-Furman capital case exonerations to 162.⁷ Five of the exonerations occurred in 2017,⁸ and 20 were based on post-conviction DNA analyses.⁹ In 2014, Professors Gross and O'Brien, with colleagues, refined their earlier analysis and estimated that one out of 25 persons sentenced to death (4.1%) between 1973 and 2004 were falsely convicted.¹⁰ They pointed out that this estimate "is only part of a disturbing picture. Fewer than half of all defendants who are convicted of capital murder are ever sentenced to death in the first place...."¹¹ They posited that "the rate of innocence must be higher for convicted capital defendants who are not sentenced to death than for those who are. The net result is that the great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten."¹² Regarding the question of how many innocent persons may have been executed, they explained: "We cannot estimate that number directly but we believe it is comparatively low.... However, no process of removing potentially innocent defendants from the execution queue can be foolproof. With an error rate at trial over 4%, it is all but certain that several of the 1,320 defendants executed since 1977 were innocent."¹³ In a separate study, Professor D. Michael Risinger examined wrongful convictions in capital rape-murder cases between 1982 and 1989 and calculated an approximate 3.3% error rate, which he described as "[a] conservative minimum factual innocence rate...."¹⁴ And finally, in somewhat of a self-reported examination of innocence among about-to-be executed inmates, a group of researchers coded the last statements of 353 male death row inmates in Texas, determining that 11.6% claimed innocence, though about two-thirds did not reference guilt or innocence.¹⁵

In Chapter 1 we discussed the seminal study completed by Professors Hugo Adam Bedau and Michael Radelet, in which they reported finding 350 cases of wrongful conviction in capital and potentially capital cases in the United States between 1900 and 1985, including 23 cases where, in their judgment, innocent persons were executed.¹⁶ We also noted that others have disputed their methodology and conclusions.¹⁷ No uncontroverted cases of erroneous executions have been documented in the post-Furman era. That is a vastly different proposition from the conclusion that none have occurred. Indeed, the logic of the inference offered above by Professor Gross and colleagues, the troubling circumstances surrounding Texas's 2004 execution of Cameron Todd Willingham, which we discussed in Chapter 7, several "near misses" in which individuals were exonerated after coming dangerously close to being executed, and doubts raised in other cases suggest that erroneous executions are likely to have occurred.¹⁸

Thirty states, the federal government, and the United States Military currently authorize capital punishment, while 20 states and Washington, D.C., do not.¹⁹ In October 2017, some 2,792 prisoners were under sentence of death nationwide, ranging from the highly populated death rows of California (742), Florida (367), and Texas (241), to just a single individual in New Hampshire and Wyoming.²⁰ Annual new entries to death row have plummeted over the past two decades, peaking at 315 in 1996 and falling to 39 in 2017.²¹ Twenty-three executions were carried out, in seven different states, in 2017, compared to the modern era high of 98 executions in 1999.²² Death-penalty legislation has been repealed in five states since 2007 (New Jersey, New Mexico, Illinois, Connecticut, and Maryland) and has been invalidated by judicial decision and not resuscitated in three others (New York, Delaware, and Washington).²³ Results from the October 2017 Gallup Poll reflect that 55% of respondents reported favoring the death penalty for murder, down from the 80% support registered in the mid-1990s and the lowest rate of support since 1972.²⁴ Concerns that innocent persons may be or have been executed have been at the forefront in contributing to these dramatic changes in the availability and use of capital punishment, and popular support for it.²⁵ Prominent in these developments was former Illinois Governor George Ryan's decision to impose a moratorium on executions in the state in 2000, and in 2003 to commute the sentences of all 167 prisoners on Illinois' death row to life imprisonment. He took that action in light of Illinois' record of having executed 12 men convicted of murder between 1977 and 2000 and over the same interval freeing 13 others from death row (one who came within 48 hours of execution) on grounds of innocence.²⁶

As we shall see, not everyone agrees that death penalty cases are as prone to error as some scholars have estimated, or that the risk of erroneous executions should curtail the use of capital punishment.²⁷ We now turn to Supreme Court and other judicial decisions which consider the possible constitutional significance of miscarriages of justice in capital cases, and which elaborate on the issues we have just introduced.

2. The Constitution and the Risk of Erroneous Executions

We considered the Supreme Court's decision in Herrera v. Collins, 506 U.S....