The slow wheels of Furman's machinery of death.

• Author: Newton, Brent E.

1. INTRODUCTION

   Shortly after receiving my law license at the age of twenty-four, I served as co-counsel on the initial appeal of Carl Buntion, who had been sentenced to death for the 1990 capital murder of a Houston police officer. In 1995, the Texas Court of Criminal Appeals affirmed his conviction and sentence on direct appeal. (1) Buntion thereafter filed habeas corpus actions in the state and federal courts and, after fourteen years of post-conviction litigation, eventually was granted a new capital-sentencing hearing because of constitutionally defective jury instructions at his original sentencing. (2) Texas again sought, and ultimately obtained, the death penalty at Buntion's re-sentencing hearing in 2012. (3)

   As I write this article, now in my mid-forties, Buntion has been under a sentence of death for nearly two decades. Based on the likelihood of delays resulting from his next round of appeals, I estimate that Buntion, who was nearly seventy-two when he was re-sentenced to death, (4) will end up having lived for three decades on death row before eventually being executed (assuming that he does not die of natural causes first).

   Buntion's extended time on death row is hardly aberrational. According to the Justice Department's Bureau of Justice Statistics, which collects and publishes data concerning both federal and state death-row inmates, the average condemned inmate in 2010 (the most recent year for which data are reported) spent nearly fifteen years under a sentence of death before being executed. (5) Notably, the BJS's statistics significantly understate the actual average because the data are based solely on executed inmates' time on death row following their "most recent sentencing date[s]." (6) The years that executed inmates spent on death row in connection with earlier death sentences that were reversed on appeal (followed by new death sentences at re-sentencing) are excluded from the BJS data in computing averages. Because half or more of all death sentences have been reversed on appeal in the modern era, (7) often after many years of litigation, and because subsequent re-sentencings often result--as in Buntion's case--in new death sentences, (8) the actual average likely is closer to twenty years than to fifteen. (9)

   If current trends continue to hold, the average delay between sentencing and execution will not decrease and very well may increase. The figure below, (10) based on BJS's annual data from 1984 through 2010, shows a trend line of increasing average times between imposition of a death sentence and execution during the past three decades. (As noted, these data under-represent the average total time that executed inmates spent on death row in connection with both initial and subsequent death sentences. The figure nevertheless offers a good depiction of the trend line.)

   [FIGURE OMITTED]

   Some simple math concerning incoming and outgoing inmates on death row accounts for the growing delays. The size of death row in the United States has remained stable during the past fifteen years or so--between 3,000 and 3,600 inmates each year since 1995 (remaining at around 3,200 since 2005). (11) From 1995 through 2010, the number of inmates added to death row annually always has substantially exceeded the annual number of executions. (12) The number of death sentences has ranged from a high of 315 in 1996 to a low of 104 in 2010. (13) By comparison, the annual number of executions has been much smaller; in 1999, there were ninety-eight executions (the high point in the modern era), while the average from 2006 to 2010 was only forty-six per year. (14) A stable population of death-row inmates--virtually all of whom are pursing multiple rounds of appeal that postpone their execution dates (15)--and a decreasing number of annual executions necessarily means an increase in the average time between imposition of a death sentence and execution.

   Additional BJS data also suggest the likelihood of increasing average delays. At the end of 2010, the average condemned inmate had been on death row for approximately thirteen years since the imposition of the most recent death sentence. (16) Almost two thirds of death-row inmates had been on death row for a decade or more since their most recent death sentences. (17) A substantial number had been on death row for over fifteen years since imposition of their most recent death sentences. (18) Assuming a stable inmate population, it would take seventy years to execute the death sentences of the 3,200 or so inmates now on death row if executions continue at the current rate of forty-six per year. (19)

   As discussed below in Part II, the underlying cause of the lengthy delays is the protracted appellate process in capital cases; the appellate delays, in turn, are a function of the elaborate legal "machinery of death" (20) created after the Supreme Court's landmark decision in Furman v. Georgia. (21) Furman and its progeny created an extremely complex body of constitutional rules in capital cases, which has made the wheels of that machine move very slowly. As discussed below in Parts III and IV, such systemic delays in the implementation of capital punishment raise serious constitutional doubts about the current death-penalty system. Furman created an Eighth Amendment paradox in which unconstitutional delays are caused by an elaborate capital-punishment jurisprudence that was intended to promote constitutional death sentences. In Part V below, I propose a possible solution to the Furman paradox--albeit one that would require the state and federal governments to rebuild the current death-penalty machine as they did after Furman.

2. FURMAN AND ITS ELABORATE MACHINERY OF DEATH

   Forty years ago, the Court in Furman dismantled the death-penalty machine then in operation and gave the American justice system an opportunity to reconstruct the machine in order to comply with the Eighth Amendment's ban on cruel and unusual punishment. Because the members of the Furman majority did not speak with a single voice, however, the Court's proposed blueprint for rebuilding the machine was somewhat sketchy. Yet a few themes were evident in two or more of the five separate concurring opinions, including these:

   * The death penalty was arbitrarily imposed in only a tiny fraction of eligible cases (22) and thus failed to meaningfully promote governmental interests in retribution and deterrence; (23)

   * The death penalty was capriciously imposed at the unguided discretion of capital sentencers; (24)

   * It was disproportionately applied against the poor and persons of color; (25) and

   * Capital punishment was an inherently cruel and unusual method of punishment. (26)

   Although the Court's short per curiam opinion simply stated that "the imposition and carrying out of the death penalty in [Furman and its companion cases, all from Georgia or Texas] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments," (27) the clear import of the separate opinions of the five Justices in the majority was to invalidate the entire system of capital punishment then existing throughout the United States. (28) In other words, because of the systemic or structural flaws identified by the Justices, "any given death sentence" in the United States was constitutionally invalid, regardless of what specific error may have existed (or not existed) in individual cases. (29)

   Most states, and eventually the federal government, responded by creating new death-penalty statutes designed to avoid the defects identified by the members of the Furman majority. (30) They used different models, although the primary example--based on the Model Penal Code--created a bifurcated system with separate guilt and punishment phases, the latter involving the weighing of aggravating circumstances against mitigating circumstances in deciding whether to impose a death sentence. (31)

   In 1976, the Supreme Court rejected facial challenges to the new death-penalty statutes in several states and, in the process, held that the core of the post-Furman death-penalty system passed constitutional muster under the Eighth Amendment. (32) In these landmark 1976 cases (some disapproving state procedures (33)), the Court highlighted two Eighth Amendment requirements for a constitutional death-penalty system: First, to avoid the arbitrariness identified in Furman, a capital-sentencing scheme must rationally "narrow the class" (34) of eligible capital crimes by providing for the consideration of aggravating circumstances applicable to only a discrete class of murders and also must sufficiently "channel" (35) the capital sentencer's discretion in deciding whether to impose the death penalty. Second, the scheme must permit mitigating evidence to be introduced by the defendant, and must ensure that it be given meaningful consideration by the sentencer during the punishment phase. (36)

   The Court also strongly endorsed what has come to be known as "meaningful appellate review" (37) in death-penalty cases. (38) After Furman, virtually all death-penalty jurisdictions created a mandatory direct appeal following imposition of a death sentence. (39) Therefore, it was not simply new post-Furman trial court procedures that caused the Court to approve the modern death-penalty statutes; it also was the belief that the appellate courts would carefully review death-penalty cases to assure that those procedures were being followed. In the post-Furman era, the Court repeatedly has stressed the "duty [of an appellate court] to search for constitutional error with painstaking care," an obligation that "is never more exacting than it is in a capital case." (40)

   Yet the 1976 cases did not definitively settle all questions concerning the constitutionality of the post-Furman death penalty statutes. Every year since 1976, the Court, applying its gradualist, "common law" approach to appellate litigation, (41) has tweaked, and occasionally...