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Criminological Research and the Death Penalty: Has Research by Criminologists Impacted Capital Punishment Practices?

• Published: 16 April 2019
• Volume 44 , pages 536–580, ( 2019 )

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• Gordon P. Waldo 1 &
• Wesley Myers 1  

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At the request of the SCJA president this paper addresses five questions. Does criminological research make a difference relative to the death penalty? - If criminological research does make a difference, what is the nature of that difference? - What specific instances can one cite of research findings influencing death penalty policy decisions? Why hasn’t our research made more of a difference? What can we do, either in terms of directing our research or in terms of disseminating it, to facilitate it making a difference? Specific examples of research directly impacting policy are examined. The evidence presented suggests that research on capital punishment has had some impact on policy, but not nearly enough. There is still a high level of ignorance that has limited the impact of criminological research on death penalty policy. The proposed solution is to improve the education of the general public and decision makers in order to increase the impact of criminological research on capital punishment policy.

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One of the most interesting things the senior author learned in his first statistics class as an undergraduate, which became much clearer when he took his first graduate research methods class, was that if a correlation exists between two variables it does not automatically mean that one of the variables caused the other variable. This is true even if the one that appeared to be the cause (independent variable) met the first criteria for causation and occurred prior to the presumed effect (dependent variable). As he began to teach the first research methods course ever taught in the Criminology Program at Florida State University he also learned about extraneous variables, intervening variables, component variables, antecedent variables, suppressor variables, distorter variables, spurious non-correlations, conditional relationships, conjoint influence, etc. (Rosenberg, 1968 ). These different types of variables will not be discussed, but their existence has relevance in trying to answer the questions posed to the panelists. Instead, reference will be made to ‘direct’ and ‘indirect’ influences in this paper because each can be important in bringing about change.

Two other methods the courts have used in this regard is the number of states that have made a significant change in their death penalty statutes, such as the number of states changing the age for execution of juveniles (Thompson v. Oklahoma, 1988 ) . Another method the United States Supreme Court has used is international opinions. “It is proper that we acknowledge the overwhelming weight of international opinion …. The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions” (Roper v. Simmons, 2005 p.11).

Warden describes the first exoneration as follows. “The first of what would become a cavalcade of post-Furman Illinois death row exonerations occurred in 1987 when a young prosecutor, Michael Falconer, came forward with exculpatory evidence that exonerated two condemned Chicagoans, Perry Cobb and Darby Tillis. It is hard to imagine more fortuitous or improbable events than those that led to the exonerations of Cobb and Tillis, who had been sentenced to death for a double murder that occurred a decade earlier.’ In 1983, the Illinois Supreme Court reversed and remanded their case because the trial judge had rejected a defense request to give the jury an accomplice instruction. The prosecution’s star witness, Phyllis Santini, had driven the getaway car used in the crime - admittedly but, she claimed, unwittingly. Chicago Lawyer , an investigative publication … carried a detailed article based on the Illinois Supreme Court opinion and case file. As luck would have it, Falconer, who recently had graduated from law school, read the article, which discussed Santini’s testimony in some depth. Years earlier, Falconer had worked with Santini at a factory and, as he would testify, she had told him that her boyfriend had committed a murder and that she and the boyfriend were working with police and prosecutors to pin it on someone else. “I thought to myself, ‘Jeez, there’s a name from the past,”‘Falconer reflected in a Chicago Lawyer interview. “I read on and started thinking, ‘Holy shit, this is terrible.”‘He called a defense lawyer mentioned in the article, reporting what Santini had told him. At an ensuing bench trial in 1987, Cobb and Tillis were acquitted by a directed verdict on the strength of Falconer’s testimony.” By then, Falconer was a prosecutor in a neighboring jurisdiction.” Cobb and Tillis eventually received gubernatorial pardons based on innocence. As serendipitous as the Cobb and Tillis exonerations” were, they were no more so than many that would follow. … (there were) 20 Illinois death row exonerations -each involving odds-defying fortuity. The error rate among 305 convictions under the 1977 Illinois capital punishment statute was in excess of 6% (Warden, 2012 p. 247–248).

Justice Marshall was careful to fully support his position surrounding the lack of a deterrent effect of the death penalty with two lengthy ‘laundry lists’ of research in the footnotes of his published opinion which are abbreviated here. “See, e. g., Jon Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976); David Baldus & James Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); William Bowers & Glenn Pierce, The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment, 85 Yale L. J. 187 (1975); Issac Ehrlich. The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (June 1975); Hook, The Death Sentence, in The Death Penalty in America 146 (Hugo Adam Bedau ed. 1967); Thurston Sellin, The Death Penalty, A Report for the Model Penal Code Project of the American Law Institute (1959).” And “See Passell & Taylor, The Deterrent Effect of Capital Punishment: Another View (unpublished Columbia University Discussion Paper 74–7509, Mar. 1975), reproduced in Brief for Petitioner App. E in Jurek v. Texas, O. T. 1975, No. 75–5844; Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975); Baldus & Cole, A Comparison of the Work of Thorsten Sellin & Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); Bowers & Pierce, The Illusion of Deterrence in Isaac Ehrlich’s Research on Capital Punishment, 85 Yale L. J. 187 (1975); Peck, The Deterrent Effect of Capital Punishment: Ehrlich and His Critics, 85 Yale L. J. 359 (1976). See also Ehrlich, Deterrence: Evidence and Inference, 85 Yale L. J. 209 (1975); Ehrlich, Rejoinder, 85 Yale L. J. 368 (1976)… See also Bailey, Murder and Capital Punishment: Some Further Evidence, 45 Am. J. Orthopsychiatry 669 (1975); W. Bowers, Executions in America 121–163 (1974).”

This only happened once with a legislator who was in favor of the death penalty and opposed to abortion. I later learned from other lobbyist’s that he was known as a ‘weird duck’ and they tried to stay away from him. Fortunately, he is no longer in the legislature.

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Waldo, G.P., Myers, W. Criminological Research and the Death Penalty: Has Research by Criminologists Impacted Capital Punishment Practices?. Am J Crim Just 44 , 536–580 (2019). https://doi.org/10.1007/s12103-019-09478-4

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Legislators in several states have filed bills aimed at abolishing capital punishment in recent months, as the number of men and women facing death sentences continues to drop nationally and conservative U.S. Supreme Court justices have expressed frustration over delays in carrying out executions .

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While more than half of U.S. states and the federal government allow capital punishment, most executions between 1976 and 2017 occurred in five states — Florida, Missouri, Oklahoma, Texas and Virginia, according to the federal Bureau of Justice Statistics.

Men receive the overwhelming majority of death sentences. But more than a dozen women have been executed since 1976, when the U.S. Supreme Court lifted a moratorium on capital punishment.

While most death row prisoners die by lethal injection, many states allow other methods such as electrocution, hanging and firing squad. All executions in 2017, the most recent year for which the federal government provides data, were by lethal injection. A 2018 report from the U.S. Department of Justice offers a broad overview of the nation’s various capital punishment policies as well as a state-by-state tally of death row inmates and executions.

States that authorize capital punishment often post online rosters of their death row inmates. The roster for the Florida Department of Corrections, for example, shows there were 342 people on death row there as of early May 2019. In Idaho, there were eight .

Below, we’ve summarized 14 academic studies about capital punishment to help journalists ground their coverage and better understand the issue. This sampling of peer-reviewed research looks at capital punishment from multiple angles, including inmate experiences on death row, factors that affect sentencing and shifts in public opinion about the death penalty. We’ve also included several studies on prisoners’ last words.

———-

Impact of the news media

Disentangling Victim Gender and Capital Punishment: The Role of Media Phillips, Scott; Haas, Laura Potter; Coverdill, James E. Feminist Criminology , 2012.

This study of capital punishment cases in Texas suggests that the Houston Chronicle ’s news coverage of murder cases influenced prosecutors’ decisions about whether or not to seek the death penalty.

The researchers analyzed the criminal cases of 504 defendants indicted for capital murder in Harris County, Texas between 1992 and 1999. They discovered that 139 of the victims were female, 31 of whom were subject to “sexual degradation,” meaning they were either raped or raped and also “disrobed.” They also examined the newspaper’s coverage of these cases.

The researchers find that “sexual degradation shapes media coverage.” Cases that did not involve sexual degradation prompted 2.8 news articles each, on average, prior to the defendant’s indictment. If a victim was raped but not disrobed, the case generated an average of 4.4 articles. If the victim was raped and disrobed, the newspaper published an average of 14.7 articles about each case.

The analysis, according to the authors, shows that the district attorney “sought death in 9 of the 19 sexual degradation cases that generated 0 to 3 newspaper articles, compared to 11 of the 12 sexual degradation cases that generated 4 or more newspaper articles. Thus, sexual degradation alone — in the absence of intense media coverage — does not necessarily move the DA [district attorney] to seek death. But sexual degradation cases that catch the eye of the media also catch the eye of the DA. The data strongly suggest that the DA is aware of, and responsive to, media coverage of pending capital murder cases.”

Factors affecting sentencing

How Defendants’ Legal Status and Ethnicity and Participants’ Political Orientation Relate to Death Penalty Sentencing Decisions Alvarez, Mauricio J.; Miller, Monica K. Translational Issues in Psychological Science , 2017.

For this study, researchers sought to determine whether U.S. adults would punish a criminal defendant differently based on characteristics such as the defendant’s race, ethnicity and immigration status. The researchers recruited 300 U.S. citizens to read a 2,500-word summary of a mock murder trial and then asked them to decide whether to sentence the mock defendant, already found guilty of murder, to death or life in prison. Each participant also answered questions aimed at measuring their political orientation and other factors that might influence their decision-making, including their level of anti-immigrant bias.

Overall, survey participants gave harsher sentences to immigrant defendants than they did to defendants described as being born in the U.S. But sentencing decisions were influenced by participants’ political orientation. “More liberal and middle of the road participants viewed documented immigrant defendants as more deserving of the death penalty, compared to U.S. born defendants,” the authors write. On the other hand, more conservative participants “viewed documented immigrant defendants as being similarly deserving of the death penalty compared to U.S. born defendants.”

The researchers note that when they compared documented immigrant mock defendants with those who were naturalized citizens, “more liberal participants viewed documented immigrant defendants as more deserving of the death penalty than naturalized citizen defendants, while middle of the road and more conservative participants viewed both defendants as being similarly deserving of the death penalty.”

Possibility of Death Sentence Has Divergent Effect on Verdicts for Black and White Defendants Glaser, Jack; Martin, Karin D.; Kahn, Kimberly B. Law and Human Behavior , 2015.

Researchers conducted a national, web-based survey of a random sample of 276 U.S. adults to determine whether respondents would choose harsher sentences for black or white defendants on trial for murder. Respondents were asked to read a 1,185-word, four-page trial summary outlining the facts of a mock murder case, which was based on transcripts from actual murder trials in California. Survey participants — half were women and the vast majority were white — had to choose to convict or acquit the defendant.

Participants were given a version of the trial summary, which differed in two ways. In some versions, the defendant faced a death sentence while in others, he faced life in prison without the possibility of parole. Defendants were given “first names stereotypically associated with Blacks (Darnel, Lamar, Terrell) or Whites (Andrew, Frank, Peter).”

The main takeaways: Participants chose to convict nearly 73.9% of defendants whose names were associated with black men and 60.9% of defendants with names associated with white men. When study participants read the version of the case featuring a defendant facing a death sentence, they chose to convict 80% of defendants with black-sounding names and 56.5% of defendants with white-sounding names.

The authors write that their findings “indicate that, not only are potential jurors influenced by punishment severity, but defendant race alters how they are swayed — with deleterious outcomes for Black defendants. The demonstration that sentence severity, specifically, the possibility of a death sentence, has a qualitatively different effect on verdicts for ostensibly Black and White defendants is novel.”

Predictors of Death Sentencing for Minority, Equal, and Majority Female Juries in Capital Murder Trials Richards, Tara N.; et al. Women & Criminal Justice , 2016.

This study looks at the link between jury decisions in capital offense cases and the sex composition of juries in North Carolina between 1977 and 2009. It finds that juries with an equal number of male and female members “were associated with a 65% increase in the odds of recommending the death penalty.” When juries had seven or more female members, the odds of recommending a death sentence fell by 32%. The researchers did not find a statistically significant relationship between male-majority juries and sentencing decisions.

No Sympathy for the Devil: Attributing Psychopathic Traits to Capital Murderers Also Predicts Support for Executing Them Edens, John F.; et al. Personality Disorders: Theory, Research, and Treatment , 2013.

The personality traits that defendants exhibit during capital murder trials influence whether or not laypeople think they deserve the death penalty, this study suggests. “A defendant’s perceived lack of remorse in particular was influential, although perceptions of grandiose self-worth and a manipulative interpersonal style also contributed incrementally to support for a death sentence,” the authors write.

Researchers examined data from three studies — two published and one unpublished — to determine whether defendants’ personality traits affect attitudes about capital punishment. In all three studies, students recruited from a university in the southern U.S. were asked to choose a criminal sentence for a mock defendant after reading a summary of a mock murder trial. The higher the students rated the defendant on a “global psychopathy” scale, the more likely they were to choose a death sentence.

The researchers write that the results “inform how perceptions of socially undesirable personality traits relate to attitudes about the sanctioning of criminals, particularly murderers facing a possible death sentence. Our findings converge with other research … suggesting that perceived lack of remorse carries considerable weight in terms of influencing legal decision-makers.”

Public support for capital punishment

Racial-Ethnic Intolerance and Support for Capital Punishment: A Cross-National Comparison Unnever, James D.; Cullen, Francis T. Criminology , 2010.

This study finds that citizens of several European countries, including France, Great Britain and Spain, were more likely to support capital punishment if they were intolerant of racial and ethnic minorities.

The researchers analyzed a variety of surveys conducted in European nations between 1992 and 2006.

The main takeaway: “In France, Belgium, the Netherlands, East and West Germany, Italy, Luxembourg,  Denmark, Great Britain, Greece, Spain, Finland, Sweden, Austria, and Canada, individuals  who were racially and ethnically intolerant — expressing animus toward immigrants — were significantly  and substantively more likely to support the death penalty. In two countries, Portugal and Ireland, racial-ethnic intolerance did not positively predict support for either the death penalty or more general punitive attitudes,” the authors write.

The researchers also find that European youth with anti-immigrant attitudes were more likely to support capital punishment.

To Execute or Not to Execute? Examining Public Support for Capital Punishment of Sex Offenders Mancini, Christina; Mears, Daniel P. Journal of Criminal Just ice, 2010.

In this study, researchers examine whether the public agreed with a move by states in the 1990s to extend the death penalty to convicted sex offenders.

The researchers find, based on an analysis of a 1991 national telephone poll of 1,101 people, that the public’s views on punishing sex crimes with the death penalty depended on whether the victim was an adult or child. According to the opinion poll, conducted by the Minneapolis Star Tribune , 27% of Americans supported capital punishment for offenders who raped an adult while 51% favored it for offenders who sexually abused a child.

The researchers also find that people who believe sex offenders are prone to recidivism and that the criminal justice system does not do enough to address sex crime were more likely to support the death penalty for sex offenders.

“Vicarious experiences with sexual victimization — that is, knowing someone who was victimized — was associated with decreased support for executing such offenders,” the authors write.

As a crime deterrent

What Do Panel Studies Tell Us About a Deterrent Effect of Capital Punishment? A Critique of the Literature Chalfin, Aaron; Haviland, Amelia M.; Raphael, Steven. Journal of Quantitative Criminology , 2013.

Researchers analyzed multiple published studies to try to gauge how effectively capital punishment deters homicide. What they learned: the academic literature is inconclusive.

“First, we believe that the empirical research in these papers is under-theorized and difficult to interpret,” the authors write. “Second, many of the papers purporting to find strong effects of the death penalty on state-level murder rates suffer from basic methodological problems.”

The authors also note the difficulty of studying the effects of the death penalty, considering states generally execute only a few people per year.

Assumptions Matter: Model Uncertainty and the Deterrent Effect of Capital Punishment Durlauf, Steven N.: Fu, Chao; Navarro, Salvador. American Economic Review , 2012.

In this article, researchers look at some of the reasons why it’s still unclear whether capital punishment policies deter homicide. They examine how previous researchers’ assumptions about homicide influenced estimates for the number of lives saved when a convicted murderer is executed.

The authors’ explanation is technical and focuses on statistical modeling. “Depending on the model, one can claim that an additional criminal executed induces 63 additional murders or that it saves 21 lives,” the authors write. “This demonstrates the ease with which a researcher can, through choice of modeling assumptions, produce evidence that each execution either costs many lives or saves many lives.”

Inmate experiences on death row

Suicide on Death Row Tartaro, Christine; Lester, David. Journal of Forensic Sciences , 2016.

While death row inmates in the U.S. are supposed to be closely supervised, they are more likely to commit suicide than male prisoners who aren’t serving death sentences. They also are more likely to commit suicide than males over age 15 who are not incarcerated, according to this study.

From 1977 to 2010, there were an average of 2.74 suicides a year on death row. The average suicide rate was 129.70 deaths per 100,000 death row inmates. For state prison inmates not facing execution, the suicide rate was 17.41 deaths per 100,000 inmates, on average. And for males over age 15, it was 24.62 deaths per 100,000 people.

The researchers note that suicide rates for death row inmates and males in the general prison population have fallen gradually since the late 1970s. They also note that the suicide rate among death row inmates is lower during years when a greater number of death row inmates are executed.

Wasted Resources and Gratuitous Suffering: The Failure of a Security Rationale for Death Row Cunningham, Mark D.; Reidy, Thomas J.; Sorensen, Jon R. Psychology, Public Policy, and Law , 2016.

This study focuses on the behavior of death row inmates who were “mainstreamed” into the general prison population at a high-security prison in Missouri between 1991 and 2015. Elsewhere in the U.S., prisoners with death sentences tend to be segregated from other prisoners and placed in “supermaximum confinement” at a high cost to taxpayers.

The key takeaways: Over the 25-year period, not only were death row inmates as likely as or less likely than other prisoners to be involved in “assaultive misconduct,” but rates of violence among death row inmates were lower after they were mainstreamed than they had been when prisoners were segregated on death row.

“Because the CP [Capital Punishment] inmate has a limited life expectancy, he is arguably particularly motivated to make those remaining days as positive for himself as possible,” the authors write. “Rather than having ‘nothing to lose,’ the CP inmate may pragmatically recognize he has more at stake in each day and thus more to gain or lose by his conduct.”

A Review on Time Perception of Death Row Inmates’ Denials in Their Last Statements in the Context of Forensic Linguistics: The Sample of Texas Huntsville Unit Uysal, Basak. Journal of Death and Dying , 2018.

This study examines the last statements of 537 death row inmates executed in Texas between 1982 and 2016. A key takeaway: Seventy inmates used their final words to deny they committed the crimes with which they’d been convicted while 108 chose not to say or write anything at all. “The main topics reflected by the denier offenders are defense, love, wishing, and sadness, and the topics reflected less are atonement, forgiveness, and ending,” the author writes.

Those who gave last statements used 102 words, on average. Inmates who denied their crimes used an average of 138 words. The shortest statement is one sentence while the longest comprises 134 sentences. The most educated inmates “talk less and use fewer words.”

The Functional Use of Religion When Faced with Imminent Death: An Analysis of Death Row Inmates’ Last Statements Smith, Ryan A. The Sociological Quarterly , 2018.

This analysis of death row inmates’ final statements focuses on the use of religious words and phrases. This researcher also examined the last words of the 537 death row inmates sentenced to die in Texas between 1982 and 2016. Of the 429 inmates who gave oral last statements, more than 6 out of 10 expressed themselves using religious sentiments, which “challenge the stereotyped image of the hardened, unrepentant death row inmate,” the author writes.

The author states that the study “deepens our understanding of the manner in which death row inmates use religion to cope with imminent death.” But he also points out that some people may question the authenticity of their final words, which are “solicited under artificial circumstances because statements are made moments before execution when the inmate is strapped to a gurney in front of witnesses.”

Of note: Inmates’ final statements became more religious after 1996, when Texas began allowing victims’ families and close friends to witness executions and hear last statements.

Forgiveness, Spirituality and Love: Thematic Analysis of Last Statements from Death Row, Texas (2002–17) Foley, S.R.; Kelly, B.D. QJM: An International Journal of Medicine , 2018.

For this study, researchers examined the final statements of the 70 inmates executed in Texas between 2011 and 2017, 61 of whom gave oral last statements. All Hispanic inmates made last statements, compared with 92% of black inmates and 70.8% of white inmates. On average, prisoners had less than 10 years of education and their median age was 40.5 years.

The most common theme in statements was love followed by spirituality, the researchers find. Third most common was an apology to the victim’s family, which was included in 30% of statements. Meanwhile, 16% of prisoners apologized to their own families, 11% asked for forgiveness and 10% denied committing the offense for which they were executed. Nobody quoted poetry or literature, the researchers note.

Less than half as many inmates asked for forgiveness in their final statements as had done so in earlier years. Between 2002 and 2006, according to the study, 32% of prisoners asked for forgiveness before their execution. Between 2006 and 2011, 25% did.

Looking for more research on prison inmates? Check out our collection of government reports and academic papers that help paint a picture of the men, women and children who are in custody nationwide. We’ve also summarized research that looks at private prisons , which inmates get the most visitors and whether more educated adults receive shorter prison sentences .

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10 facts about the death penalty in the u.s..

Here’s a closer look at public opinion on the death penalty, as well as key facts about the nation’s use of capital punishment.

Unlike other U.S. religious groups, most atheists and agnostics oppose the death penalty

Roughly two-thirds of atheists (65%) and six-in-ten agnostics (57%) either “strongly” or “somewhat” oppose the death penalty.

Death penalty draws more Americans’ support online than in telephone surveys

The difference in support for the death penalty by survey mode has important consequences for understanding trends on the issue.

Most Americans Favor the Death Penalty Despite Concerns About Its Administration

Nearly eight-in-ten U.S. adults (78%) say there is some risk an innocent person will be put to death, and 63% say the death penalty does not deter people from committing serious crimes.

Trump used his clemency power sparingly despite a raft of late pardons and commutations

Only two other presidents since 1900 – George W. and George H.W. Bush – granted fewer acts of clemency than Trump.

California is one of 11 states that have the death penalty but haven’t used it in more than a decade

More than a third of the states that allow executions haven’t carried one out in at least 10 years or, in some cases, much longer.

Where the public stands on key issues that could come before the Supreme Court

Ahead of the Senate’s deliberations over Kavanaugh, here’s a look at where the public stands on some of the major legal, political and social issues that could come before the Supreme Court in the years ahead.

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The U.S. has more foreign students enrolled in its colleges and universities than any other country in the world. Explore data about foreign students in the U.S. higher education system.

U.S. ends year with fewest executions since 1991

Just five states – Alabama, Florida, Georgia, Missouri and Texas – accounted for all 20 executions in the U.S. in 2016.

Support for death penalty lowest in more than four decades

The share of Americans who support the death penalty for persons convicted of murder is now at its lowest point in more than four decades.

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Syracuse Journal of Law & Civic Engagement

An inquiry into the ethics of capital punishment.

D. Alicia Hickok , Partner at Drinker Biddle & member of the American Bar Association’s Steering Committee of the Death Penalty Representation Project , & J.J. Williamson , Associate in the Drinker Biddle’s Litigation Group

The word “ethic” is derived from the Greek “ethos,” which itself has taken on multiple meanings. In the traditional Greek, it is used by Aristotle to describe the apparent character of the speaker. The Oxford English Dictionary recognizes that its origin relates to nature or disposition, but instead defines “ethos” as “[t]he characteristic spirit of a culture, era, or community as manifested in its attitudes and aspirations” or “the character of an individual as represented by his or her values or beliefs.” [1] Regardless of the definition, it is apparent that ethical behavior is necessarily an individual action and portrayal in relation to a community – although Aristotle’s definition is more susceptible to an absolute source of such “right behavior” or “moral action” than the Oxford English Dictionary’s.

The United States Supreme Court has certainly recognized that current community values are critical to an analysis regarding whether capital punishment violates the Eighth and Fourteenth Amendments to the United States Constitution. [2] But it has also recognized that an examination of those values must be tempered with respect for the “dignity of man” such that punishment must not be excessive, either through “the unnecessary and wanton infliction of pain” or by being “grossly out of proportion to the severity of the crime.” [3] These “natural law” values correspond in many instances to moral views set forth in ancient and sacred writing. Any analysis of the ethics of capital punishment thus need to echo the Supreme Court’s recognition of the possibility that something that has become “accepted” in society may nonetheless be “immoral.”

The response to an “immoral” but “accepted” practice represents an ethical choice. Indeed, many people have explored the dilemmas that arise when a community – either through its laws or practices – mandates or prohibits a course of action that is fundamentally at odds with what a person recognizes as an ultimate moral code. This is seen in Judeo-Christian scripture at least as early as Daniel 6, when King Darius was beguiled into signing a law that forbade prayer to any but him. Daniel was a slave who had become a trusted advisor to the king. He continued with his duties, but also continued to pray to God at home daily; the legal consequence of which was that Darius was compelled to throw Daniel into a lions’ den (from which, Daniel 6 explains, God delivered him, thus honoring Daniel’s adherence to the conduct dictated by his faith rather than the law created by the king).

In examining the ethics of capital punishment, then, this article will address three questions: Is there an absolute position on the death penalty that renders it immoral in all circumstances? What does the law permit, command, or prohibit? Does the practice accord with these permissions, commands, and prohibitions – and is the perception that it does? The answer to those questions then prompts a fourth: how is a lawyer in today’s legal system to act ethically in a state that authorizes capital punishment?

I. Is Capital Punishment Wrong According to Traditional Moral Measures?

One might perhaps think that the answer to any question of the ethics of capital punishment begins and ends with moral law. To be sure, in Gregg v. Georgia , [4] the Supreme Court recognized that right and wrong can transcends the laws on the books at any given moment. It certainly is the case that for some religious groups, any notion of capital punishment is contrary to fundamental beliefs. But it is equally the case that not all persons within those religious traditions – and not all religions – condemn capital punishment.

It is beyond the scope of this article to explore the full range of religious responses, which range from a conviction that the taking of a life can be compensated for only by another life to a belief that the sacredness of life can never justify condoning of the taking of another’s life, and include everything in between.

A brief overview of a couple of religious perspectives may, however, give a flavor of the moral reasoning undergirding religious responses. Those who favor the death penalty often cite both to the religious admonitions to honor civil law and to the recognition in Exodus 21 that injury is to be recompensed in kind, admonishing Israel to take life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise.” [5]

On the other hand, of those who are fundamentally opposed to capital punishment, most believe that taking of the life of another is wrong even for the state to do. In addition, many express a belief that capital punishment is an offense against the community, or that it is unfairly harmful to the person delegated to carry out the sentence. The conviction that the taking of life is wrong is heightened by – or in some cases replaced with – concerns that the punishment does not achieve its stated goals and is too fraught with uncertainty to be a viable sentence, even if there is a theoretical authority for a state to take a life.

Thus, for example, the Green Country Society of Friends spoke out about Oklahoma’s death penalty statute in 1996 by first recognizing that people “have the need and the right to seek safety and order for themselves and their communities” but rejecting capital punishment as a means to achieve that because (1) it does not respect the Spirit of God that they believe dwells in each person; (2) it “magnifies the tragedy of a lost life by killing again, ignoring the human capacity for change, quenching forever the possibility of redemption and renewed contribution”; (3) because it harms the community by giving violence a “legitimate status as a way to resolve problems”, sanctioning vengeance as an acceptable response to harm, shifting the focus from healing and help to victims, offenders, and affected families and communities, and because it is possible that an innocent person is being executed; (4) because those persons to whom the task of execution is delegated are at “moral and psychological peril to themselves.” [6] In 1999, the United States Conference of Catholic Bishops, observing that it had been opposed to the death penalty for over twenty-five years, stated:

We oppose capital punishment not just for what it does to those guilty of horrible crimes but for what it does to all of us as a society. Increasing reliance on the death penalty diminishes all of us and is a sign of growing disrespect for human life. We cannot overcome crime by simply executing criminals, nor can we restore the lives of the innocent by ending the lives of those convicted of their murders. The death penalty offers the tragic illusion that we can defend life by taking life.

We are painfully aware of the increased rate of executions in many states. Since the death penalty was reinstituted in 1976, more than 500 executions have taken place, while there have been seventy-four death-row reversals late in the process. Throughout the states, more than 3,500 prisoners await their deaths. These numbers are deeply troubling. The pace of executions is numbing. The discovery of people on death row who are innocent is frightening. [7]

After Timothy McVeigh, a Catholic, was executed in Indiana, John and Lauren McBride authored an article in the Saint Anthony Messenger, a paper in the area, [8] reflecting on the execution and on a commencement address that Sister Helen Prejean gave at St. Mary of the Woods College in 2001. Sister Helen Prejean had said that that the death penalty was imploding because it “has always been unfair,” remarking on the expense, the lack of deterrence, and the irreversible and irremediable character of the penalty. Quoting Matthew 25, the authors of the article contended that when Jesus taught that what was done to the least of his brothers was done to him, and linked that to Sister Helen’s admonition that scripture teaches not to return hate with hate or violence with violence. The author also quoted Archbishop Daniel M. Buechlein of the Indianapolis Archdiocese (which includes Terre Haute), who wrote that the “death penalty ‘feeds a frenzy for revenge… [which] neither liberates the families of victims nor ennobles the victims of crime. Only forgiveness liberates.’” [9] In conclusion, the authors reflected on a movement in churches across the nation to ring their bells whenever an execution takes place, remembering John Donne’s statement that “any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.” [10] The author also interviewed others who were not opposed to the death penalty per se but nonetheless expressed concerns that the process needed reform and decried the racial and economic disparities in its application.

These concerns are echoed in Jewish law, which did not proscribe capital punishment, but which did define strict parameters within which it could be applied. The Talmud Sanhedrin, in exchanging views on the Mosaic law from the third to the fifth centuries C.E., stressed the need for procedural protections before a person could be sentenced to death for treason, discussing the scriptural requirement that there be two witnesses. [11] If one witness was disqualified, the evidence of the others was invalid. Witnesses were sequestered and examined and cross-examined, with accusing witnesses permitted to retract testimony but defending witnesses not. Inconsistencies – even as to time or day – disqualified witnesses. These protections were both to “ensure reliability of outcome and to enhance the possibility of acquittal in a capital case.” [12]

A Talmudic brief was submitted as an amicus in Bryan v. Moore . [13] The authors of the brief were addressing only whether electrocution was cruel and unusual. In their analysis, they recognized that from ancient times, rabbis have been divided whether capital punishment could ever be imposed. Even those that sanctioned it required strict standards of proof (before a court of at least 23 judges), and when execution was carried out, the law required a means to be chosen that prevented unnecessary pain and avoided mutilation or dismemberment. Indeed, any in favor point to sacred writings that stress the authority to enforce justice and protect a community but also stress the exceptional nature of the punishment. [14]

These historic and faith-based perspectives, taken together, have led many persons – and an increasing number of states – to conclude that even if it is theoretically possible to have a crime that warrants a sentence of death, the cost (both economically and morally) is too high, the risk of inaccuracy is too great, and the procedural protections are not strict enough.

But many others, including many with deeply-held religious convictions, affirm the decisions of the Supreme Court, Congress, and the legislatures and high courts of many other states that continue to uphold and enforce the death penalty. That said, the law enunciated by the United States Supreme Court has not stagnated over time. Instead, the United States Supreme Court has narrowed the classes of persons who can be subject to the death penalty and has fleshed out the characteristics that need to accompany any capital sentencing scheme in order for it to satisfy the requirements of the United States Constitution.

II. What Does the Law Permit, Command, or Prohibit?

Because statutes ultimately must conform to the Constitution, the starting point for this analysis are the determinations of the United States Supreme Court in holding that capital punishment was not absolutely proscribed by the Constitution. Two days before the bicentennial, on July 2, 1976, the United States Supreme Court issued five opinions, three affirming the constitutionality of state capital sentencing schemes, and two striking down other such schemes as unconstitutional. In Gregg , the Court explained that in an Eighth Amendment analysis of a statute, there is a presumption that a statute is valid, in part because legislative judgment “weighs heavily in ascertaining [contemporary] standards” and to “respond to the will and consequently the moral values of the people.” [15] After tracing the history of capital punishment in this country, the Court found that the “relative infrequency” with which juries imposed capital sentences did not reflect a “rejection of capital punishment per se” but the belief that the “most irrevocable of sanctions should be reserved for a small number of extreme cases.” [16] The Court also recognized both the retributive and deterrent effects of the death penalty. [17]

But while a state has the right to impose the death penalty, it cannot do so arbitrarily or capriciously, and it must ensure that the sentencer’s discretion is guided and informed. [18] In looking at Georgia’s statutory scheme in particular, the Supreme Court observed that the Georgia Supreme Court was required to “review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and ‘[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.’” [19] Thus, each instance in which a death sentence is imposed will receive the direct attention of the justices of the state’s Supreme Court, and they will address directly some of the criteria that the United States Supreme Court found needed to be present in a capital sentencing scheme to render it constitutional. [20]

Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case. In the years immediately following Gregg , it was that court’s regular practice to include in its review cases that did not result in a death sentence. The Supreme Court later clarified in Pulley v. Harris that a comparative proportionality review was not demanded for every capital sentence. [21] More recently, however, the Court explained that it had intended only to “convey our recognition of differences among the States’ capital schemes and the fact that we consider statutes as we find them” – not to undermine the Court’s prior conclusions that “such review is an important component of the Georgia scheme.” [22] As shown in the attached chart, it appears that currently there are at least nine states that have no provision for proportionality review in their state statutes.

In Proffitt v. Florida , [23] the sentencing findings of the jury were advisory only; the actual sentence was determined by the trial judge, but “‘[i]n order to sustain a sentence of death following a jury recommendation of life, the facts suggesting a sentence of death should be so clear and convincing that virtually no reasonable person could differ. [24] The Supreme Court found that jury sentencing was not constitutionally mandated. [25] Likewise, in Jurek v. Texas , [26] the Court upheld Texas’s capital sentencing scheme, concluding that Texas’s narrowing of death-eligible crimes to a limited category of murders served the same function as aggravating factors did in Georgia and Florida. [27] But the Court was careful to say that it would not be enough to limit the evidence relevant to why a death penalty should be imposed; there must also be consideration of evidence why the death penalty should not be imposed. In other words, a capital sentencing system must: “guide[] and focus[] the jury’s objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” [28] “What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.” [29] Finally, “[b]y providing prompt judicial review of the jury’s decision in a court with statewide jurisdiction, Texas has provided a means to promote the evenhanded, rational, and consistent imposition of death sentences under law.” [30]

In contrast, in Woodson v. North Carolina , [31] the Supreme Court rejected the North Carolina statutory scheme, because North Carolina mandated a sentence of death for first-degree murder – in part because the Court construed such statutes as “simply paper[ing] over the problem of unguided and unchecked jury discretion.” [32] The Court explained what it meant to have a jury consider evidence in mitigation:

A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death. This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. [33]

Although Louisiana’s statute used “a different and somewhat narrower” definition of death-worthy murder than North Carolina, it was also mandatory, and the Supreme Court found it likewise unconstitutional in Roberts v. Louisiana . [34] In so holding, the Supreme Court reiterated that mandatory sentences simply could not be upheld, because society has “reject[ed] the belief that ‘every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.’” [35] The Court was also troubled that in order to provide an opportunity to sentence a defendant to less than death, juries were instructed on lesser offenses, regardless of the evidence, which the Court found “plainly invites the jurors to disregard their oaths and choose a verdict for a lesser offense whenever they feel the death penalty is inappropriate – a result that contained an unacceptable “element of capriciousness.” [36]

Through a series of opinions, the Supreme Court would later clarify that a jury cannot sentence a defendant to death without being allowed to consider mitigating evidence; indeed, “when the jury is not permitted to give meaningful effect or a ‘reasoned moral response’ to a defendant’s mitigating evidence – because it is forbidden from doing so by statute or a judicial interpretation of a statute – the sentencing process is fatally flawed.” [37] And, of course, a jury cannot consider evidence in mitigation that counsel fails to uncover, apprehend, pursue, and present. Accordingly, counsel cannot competently represent a capital defendant without developing sufficient evidence about his or her background to make a reasonable strategic decision about what evidence to present in mitigation. [38]

Of course, evidence may not be put in front of a jury because it was never produced to the defense. The role of prosecutors to ensure a fair trial predates AEDPA by decades.

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

It is fair to say that the average jury, in a greater or less degree, has confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. [39]

These principles have given rise to a series of decisions, beginning with Brady v. Maryland , [40] in which the Supreme Court has articulated the constitutional obligation of the prosecution to provide the defense with exculpatory and impeachment evidence. Claims involving the obligations of the attorneys in a case (so-called Strickland (ineffectiveness) or Brady (withholding of evidence)) are the primary claims raised in collateral changes to capital convictions.

In addition, in recent years, certain classes of persons have been determined incapable of being sentenced to death, including persons who are mentally retarded (in Atkins v. Virginia ) [41] and juveniles ( Roper v. Simmons ). [42] In extending the rationale of Atkins to juveniles, the Supreme Court found that there were three characteristics of juveniles that rendered the death penalty inappropriate: (1) the lack of maturity and “underdeveloped sense of responsibility;” (2) a heightened susceptibility to “negative influences and outside pressures;” (3) and a less “well formed” character. [43] The Supreme Court concluded that:

These differences render suspect any conclusion that a juvenile falls among the worst offenders. The susceptibility of juveniles to immature and irresponsible behavior means “their irresponsible conduct is not as morally reprehensible as that of an adult.” Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment. The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character. From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed. Indeed, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside. [44]

There are also constraints upon the execution [45] and trial of persons who are mentally incompetent, [46] but these constraints have not led to a blanket prohibition against capital sentences for persons with specific mental illnesses – or to a suspension of all proceedings while a person is incompetent. [47]

There is one more factor that has not yet been addressed specifically by the United States Supreme Court but that bears on the reliability of the verdict and the information that is in front of sentencers to consider. There is wide variation in the statutory (or rules) requirements for notice of intent to seek the death penalty by the prosecution, with most states requiring notice at some point after arraignment (typically sixty days or less), but others requiring notice only at a certain point before trial . Indeed, in Alabama, the death penalty may be sought in any case in which a district attorney has charged a defendant with capital murder, with no notice other than the charge itself required. [48] And in New Hampshire, the only requirement is that notice occur before trial or acceptance of a guilty plea. South Carolina and Tennessee require notice only thirty days prior to trial. [49] If a defendant is provided with ample resources to prepare for a capital penalty phase – whether or not it is to occur – notice may not be problematic. But where resources are limited, it appears unreasonable to ask a lawyer – or for that matter, a trial court – to authorize extensive resources to prepare for a case in mitigation that may or may not be a part of the trial. And yet, mitigation preparation – with its requisite investigation and consultation of experts – cannot be authorized and carried out in only a month without seriously undermining the reliability of the information that is placed before the sentencer.

At the moment then, a capital sentence can be upheld by the Supreme Court as constitutional only if there is a trial in which the community can have confidence. That, in turn, requires a competent defendant represented by counsel who has the resources, time, and skill to present a sentencer with evidence in mitigation that informs the sentencer’s decision whether to impose death for the narrow class of the most serious crimes by making a non-arbitrary, non-capricious, guided decision.

The standards that are applied to evaluate the fairness of the capital process are increasingly narrowed, however. On the one hand, state and federal law permit collateral attacks on allegedly unfair processes, through state and federal habeas or other post-conviction relief mechanisms. But on the other hand, such attacks are subject to significantly heightened levels of deference and narrowed bases for challenge, some statutory (such as that imposed by the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”)), and others by the standard recognition that the presumption of the finality of a judgment increases with each level of review. In collateral review, traditional criminal precepts in multiple contexts (including ineffective assistance and non-disclosure of evidence) require a showing of prejudice that is defined, not by “whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” [50] This concept is notoriously subjective and uneven in its application, thereby undermining the confidence that is the stated goal.

More fundamentally, the Court has grappled – beginning with Woodson – with the recognition that fair procedures and reliability are more essential in the capital sentencing context than in any other, because death is different in kind, and not merely in degree – indeed “[d]eath in its finality differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.” [51] And yet, in a system in which the focus – and expenditures of money – increase disproportionately at the very stages when the standard of review becomes the hardest to satisfy, the public message is that procedures are not fair, sentences of death are not reliable, and verdicts are not worthy of confidence.

III.       What is the Community Practice?

Because the United States Supreme Court has determined that capital punishment is not absolutely proscribed by the Constitution, current practice has largely been placed into the hands of the states, and more specifically the state legislatures, to determine how such a process will function, as well as to define its limits. Eighteen states, as well as the District of Columbia, have chosen to abolish the death penalty outright: Michigan was the first in 1846, and Maryland the most recent in 2013. Most recently, Governor Tom Wolf of Pennsylvania imposed a moratorium on the Commonwealth’s execution of individuals pending a review of a forthcoming report by the Pennsylvania Task Force and Advisory Committee on Capital Punishment. [52] The death penalty, then, remains a viable form of punishment for thirty-two states, as well as the federal government and the U.S. military, though the exact contours of the implementation of this ultimate type of punishment varies widely by jurisdiction.

One area in which the states that continue to employ the death penalty differ is in the qualification standards each state has set (or not set) for the lawyers who represent capital-eligible defendants at the trial level. The idea of standards for capital counsel is not new; in fact, suggested qualifications have been published since 1989, when the American Bar Association (“ABA”) published the Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases. [53] A little over ten years later, the campaign to implement capital counsel qualifications began anew when, in 2001, the ABA commissioned the Death Penalty Representation Project to revise the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (the “ABA Guidelines”). [54] The revised ABA Guidelines were subsequently adopted on February 10, 2003 by the ABA House of Delegates, intended to “set forth a national standard of practice for the defense of capital cases in order to ensure high quality legal representation for all persons facing the possible imposition or execution of a death sentence by any jurisdiction.” [55] Interestingly, the scope of the ABA Guidelines was purposefully broad, and meant to

apply from the moment the client is taken into custody and extend to all states of every case in which the jurisdiction may be entitled to seek the death penalty, including initial and ongoing investigation, pretrial proceedings, trial post-convocation review, clemency, and any connected litigation. [56]

In setting qualifications for capital defense counsel, ABA Guideline 5.1 lists several factors that a state agency establishing such qualifications should consider, including whether counsel has:

• a license to practice in the jurisdiction;
• demonstrated commitment to zealous advocacy and high quality legal representation in the defense of capital cases;
• a completion of suggested training requirements;
• substantial knowledge of relevant federal and state law governing capital cases;
• skill in oral advocacy;
• skill in investigation, preparation, and presentation of evidence bearing on mental status;
• skill in investigation, preparation, and presentation of mitigating evidence;
• skill in the elements of trial advocacy, including jury selection, cross-examination of witness, and opening statements and closing arguments.

The ABA Guidelines also call for such measures as a monitoring of capital counsel’s workload, in order that the lawyer will “provide each client with high quality legal representation in accordance with [the ABA Guidelines].” [57] Additionally, capital counsel is to create a defense team that includes persons such as a mitigation specialist, mental health specialist, and other such specialists or persons as may be needed to bring a high level of legal representation on behalf of the client. [58] The ABA Guidelines do not address, however, how such a high caliber team should be funded, suggesting only that counsel should be compensated “for actual time and service performed at an hourly rate commensurate with the prevailing rates for similar services performed by retained counsel in the jurisdiction, with no distinction between rates for services performed in or out of court.” [59] While most of the guidelines speak to lawyer behavior, funding does not. In most instances, it is the state that funds capital defense, and it is the responsibility of the electorate to hold legislators accountable for ensuring sufficient funds to attract dedicated counsel and to provide them with sufficient resources to provide a thorough defense.

Since their revision, the ABA Guidelines have received some traction among both state and federal courts. [60] These qualification standards set forth by the ABA, however, are merely suggestions; the adoption of the ABA Guidelines, or the development and implementation of a separate code, is ultimately left to the States. This was emphasized by the Supreme Court in Bobby v. Van Hook , a per curiam decision that highlighted the notion that the ABA Guidelines are “‘only guides’ to what reasonableness [in the context of attorney representation] means, not its definition.” [61] So long as capital counsel make objectively reasonable choices in the course of representation, the “states are free to impose whatever specific rules they see fit to ensure that criminal defendants are well represented[.]” [62]

As the chart below illustrates, states have implemented capital counsel qualification standards in various degrees. For example, in 2005 Alabama adopted the ABA Guidelines as its code for capital counsel qualifications, noting, however, that the adoption of said Guidelines was “not to be considered a rule or requirement but only a recommendation.” [63] Texas has adopted a set of guidelines very similar to those promulgated by the ABA, which it calls the Guidelines and Standards for Texas Capital Counsel. [64] Like the ABA Guidelines, Texas requires defense teams to include a mitigation specialist and the lawyers on the team must complete a comprehensive training program in death penalty cases. [65]

Several states have taken some aspects of the ABA Guidelines a step further, requiring counsel to meet quantifiable benchmarks before being accepted—whether formally or informally—into the capital counsel bar. Arkansas requires its capital counsel attorneys to have at least three years of criminal defense experience, as well as having served as lead or co-counsel at least five capital trials. [66] Additionally, it also imposes an additional requirement of six hours of continuing legal education in the field of capital defense within the year leading up to the capital case. [67] California requires its capital counsel to have at least ten years of litigation experience in the field of criminal law, including ten serious or violent crime jury trials, at least two of which were for murder. [68] Like Arkansas, a CLE requirement (a requirement common to almost all states with capital counsel qualifications) is imposed, requiring fifteen hours of training in capital defense within the prior two years. [69]

Most states have crafted requirements that fall somewhere in between the Arkansas and California requirements, but not all. Colorado, for example, imposes qualifications upon capital counsel, but only at the post-conviction stage of proceedings. [70] And New Hampshire does not have any policies regarding qualification standards for capital defense counsel – although it is worth noting that New Hampshire has not executed anyone since 1939, despite the death penalty remaining in state law. [71]

Although the qualification standards discussed above pertain primarily to trial counsel, the only federal “stick” that is used to ensure the quality of representation is directed not at trial counsel but at post-conviction counsel. Sections 2261 and 2265 of title 28 of the United States Code (part of the Antiterrorism and Effective Death Penalty Act, “AEDPA”) “provide[] for an expedited review procedure by which state courts are given more deference in the federal habeas review process,” only if certain requirements are satisfied by the states. [72] But both provisions place requirements on the appointment of counsel at the post-conviction stage of the proceedings, i.e ., after a capital punishment sentence has already been imposed by the trial court and affirmed on direct appeal. The deference the state court adjudications receive, then, is based not on the quality of representation when the matter was tried before a finder of fact but the quality of representation in post-conviction collateral attacks – and those state-level collateral attacks are themselves entitled to a deference that a court on direct appeal does not employ.

Two states – Utah and Pennsylvania – do not even fund capital defense at the state level. [73] It is a sobering statistic that Philadelphia’s compensation for court-appointed trial lawyers has been among the lowest of any major metropolitan area in the country – and that of the 100-plus inmates sentenced to death in Pennsylvania since 1978, almost all had their appeals overturned on collateral review. [74] Given the costs associated with post-conviction and habeas appeals, one cannot help but wonder whether the Supreme Court’s requirement of a verdict worthy of confidence needs to be the primary focus of funding for all jurisdictions that choose to maintain the death penalty, and whether, at some point, the Supreme Court will find that a right to a fair trial means that the structure that needs to be in place to ensure a fair trial has to precede trial.

It can thus be argued—as this article does—that the AEDPA statute places its emphasis on the wrong stage of the proceedings – and that creating an incentive to expend large sums of money, employ significant teams of lawyers, and retain multiple experts at the two levels of collateral attack – state and federal – at which the greatest degrees of deference are owed to the state court judgment is not only a poor allocation of resources but a trigger for tension between the bench and bar that ultimately can only harm the interests of the capital defendant.

This tension is a product of an appellate system that, on the one hand, accords deference to the fact-finding of judges and juries – and to the discretion of a trial court to manage the conduct of a trial and the evidence and witnesses that may be considered. That deference extends to the reasonable, strategic decision of a lawyer. On the other hand, habeas counsel and others are required to look at the trial through a prism of standards and scopes of review; even though they see in hindsight defenses that could have been raised, experts that could have been proffered, and mitigation that could have been presented to a jury. As will be seen at greater length below, the more convinced that those not a part of the trial become that capital trials are unfair, the further they push the envelope to force a new trial – and the more entrenched the perspective that all death sentences should be overturned, and the more strident and less respectful the call for that relief, the greater a gulf is placed between the bench and the bar.

The parameters that the United States Supreme Court have articulated for state statutory schemes – trials in which the community can have confidence at which sentencers who are fully apprised of the evidence, including evidence in mitigation, render rational and non-arbitrary sentences – are not advanced by comparing lawyers who are frequently poorly paid and who have to seek court approval for any appointed expert or testing to be measured against what sometimes appears to be unlimited resources and an unlimited appetite for flyspecking a trial in hindsight. It is at least an understandable (and perhaps a natural) reaction to say – as numerous opinions on ineffective assistance do – that the right to effective counsel is not the right to perfect or ideal counsel. [75] Or, as a recent Pennsylvania Supreme Court opinion explained, “a defendant’s competency to stand trial must be evaluated at the time of trial” – and contrary evidence produced in hindsight “overlooks this requirement.” [76]  But although the response of courts is natural, so is the unease reflected in the public’s reaction to a denial of relief in the face of new information by experts and others.

IV. What is the Ethical Response?

In a provocative article, Fred Zacharias and Bruce Green explain that the nineteenth century debate about what defines a lawyer’s ethical role – that of a lawyer’s ethical responsibility being to his or her client and that of a lawyer beholden to his or her own conscience – creates a false dichotomy. [77] Instead, they posit that a coherent ethic is found in Rush v. Cavenaugh , [78] which said, inter alia , that a lawyer “is expressly bound by his official oath to behave himself in his office of attorney with all due fidelity to the court as well as the client; and he violates it when he consciously presses for an unjust judgment: much more so when he presses for the conviction of an innocent man.” Thus, they conclude, there is a professional conscience that co-exists with a personal conscience and that together set limits on what a lawyer can do in advocating for a client. [79] In this way, “lawyers’ obligations are distinguished from those of other agents because of their office, which imposes countervailing obligations to the court to which the lawyer owes fidelity.” [80]

On this view, there are obligations of professional conscience that transcend the obligations set forth expressly in rules of professional conduct (those being prohibitions against knowingly participating in illegality or fraud, filing frivolous claims, or failing to be candid with a court). [81] In addressing the unwritten obligations, a lawyer must exercise judgment in determining “the legal and systemic considerations that are familiar to lawyers” and weighing those against the client’s interests and the dictates of personal conscience. [82] The challenge here is that in most instances a person presumes that his moral convictions alone will dictate ethical choices and actions. But the legal profession – and particularly in Green’s and Zacharias’s view – requires one’s morality to inform and be informed by one’s obligations to the court and one’s duties to his or her client. This has significant implications for litigating capital cases, and particularly for collateral proceedings, because the goal cannot be to avoid the carrying out of a death sentence; it must instead be to vindicate a particular individual’s right to a fair trial, developed within the (a) law – either as it exists or as extended in good faith; (b) facts and procedural history of the case; and (c) rules of the court and professional conduct.

In 1982, the Honorable Ruggero Aldisert used the positioning of competence as first in the then-new Model Rules of Professional Conduct to discuss the responsibility a lawyer has “to his client, the courts, and the development of the law” – a responsibility that was greater than that imposed by other jurisdictions. [83] Focusing on appellate lawyers, he stressed that American lawyers need to be cognizant of their responsibility not only to the client “but also to the court in its law-making function.” [84] He then analyzed what in his mind makes an appellate lawyer competent, stating, inter alia , that the first argument in an appellate brief should be the one most likely to persuade the court and that the brief should set forth “only those arguments which have the capacity to persuade” – and he suggested that no brief should exceed five points and preferably should not have more than three. [85] This message of his – that winnowing is essential to a good appeal – is widely held among judges.

But in representing a capital defendant, this view is in tension not only with the requirement of exhaustion but with the uncertainty that a defendant will be able to avail himself or herself of developing jurisprudence without arguing for it. In Teague v. Lane , the United States Supreme Court determined that most new rules of criminal procedure – unless they came within certain narrow exceptions [86] – could not be applied retroactively. In O’Dell v. Netherland , the United States Supreme Court applied Teague to deny relief to a capital defendant, finding that the rule enunciated in Simmons v. South Carolina , 512 U.S. 154 (1994) – that a defendant must be permitted to inform his sentencing jury that he is parole-ineligible if the prosecution argues that he presents a future danger – was a new rule of criminal procedure and not a watershed one that “implicat[ed] the fundamental fairness and accuracy of the criminal proceeding.” [87] Likewise, in Beard v. Banks , the United States Supreme Court found that the invalidation of capital sentencing schemes that required jurors to disregard mitigation that was not found unanimously was a new rule that did not come within either exception. [88]

The response of a zealous advocate is to argue for good-faith extensions of the law – and to try to anticipate any such changes that might be on the horizon. But doing so is inconsistent with the premise with which Judge Aldisert and others begin – that only the strongest ( i.e ., the most likely to persuade a court) arguments should be in a brief. The ABA as well has said that given the legal climate, a lawyer has a responsibility to raise all arguments potentially available. [89] The resultant long briefs, filled with issues and sub-issues, some only partially developed, has led to frustrations by the bench at the time it takes to review (or ferret out) arguments and address them carefully, and a sense that the briefing and other tactics are placing personal agendas above the ethical obligation to the courts.

In the concurrence of Commonwealth v. Eichinger , for example, a Pennsylvania Supreme Court justice quoted the post-conviction trial court, which had had to reallocate its other cases to senior judges to handle a single post-conviction petition.

A lawyer has a sacred duty to defend his or her client. Our codes of professional responsibility additionally call upon lawyers to serve as guardians of the law, to play a vital role in the preservation of society, and to adhere to the highest standards of ethical and moral conduct. Simply stated, we are all called upon to promote respect for the law, our profession, and to do public good. …. This case has caused me to reasonably question where the line exists between a zealous defense and an agenda-driven litigation strategy, such as the budget-breaking resource-breaking strategy on display in this case. Here, the cost to the people and to the trial Court was very high. [90]

Another justice, also concurring, expressed his frustration this way:

Simply put, those who oppose the death penalty should address their concerns to the legislature. Using the court system as a way to delay, obstruct, and thus, by implication invalidate a law passed by duly elected senators and representatives cannot be characterized as proper, zealous advocacy. That is to say, “the gravity of a capital case does not relieve counsel of their obligation under Rule 3.1 of the Rules of Professional Conduct not to raise frivolous claims. . . . While an attorney may have an ethical obligation to be a zealous advocate, he has a duty not to pester the courts with frivolous arguments. In fact, an attorney does his client a disservice by failing to winnow out the weaker arguments and focusing on central, key issues, upon which his client might be granted relief. Adding weaker, particularly frivolous arguments, dilutes the force of the stronger ones and makes it difficult for a court to focus on those issues which are deserving of attention, i.e., those which are non-frivolous. Common sense dictates that, when an attorney raises an excessive number of issues, as occurred in this PCRA case, the motivation for so doing is to paralyze the court system to further political views. It is not hard to discern that, in such cases, the strategy of PCRA capital counsel is not necessarily to put forth the best legal arguments upon which the client may be granted relief, but rather, the strategy is to keep, at all costs, his client from suffering the ultimate penalty proscribed by law. Appellant as PCRA counsel have the duty, like any attorney, to raise and pursue viable claims, and they must do so within the ethical limits which govern all Pennsylvania. [91]

In other words, collateral capital litigation in Pennsylvania and elsewhere demonstrates the divide between those who advocate loyalty to the court and to jurisprudential principles and practices and those who seek to overturn death sentences through whatever procedural or legal means are available or are perceived as potentially available. Those who see the practices as disloyal to the courts also see them as divorced from a lawyer’s loyalty to his client. Those involved adamantly disagree, believing that saving or extending a life is in the best interests of the client.

The ramifications of the dilemma posed by this tension are not merely theoretical, or even philosophical. As the Supreme Court of Pennsylvania explained, its recent movement to strict word limits and other briefing parameters in all appeals was in response to what it perceived as briefing abuses in capital post-conviction briefing in that Court. [92] Similarly, while Pennsylvania has refused to find waiver for claims of incompetency that are raised for the first time in collateral proceedings, the Pennsylvania Supreme Court’s perception that such claims are being abused has led to an increasing number of justices expressing a willingness to overrule the preservation exception. [93] Said differently, what may extend the time that a defendant is alive may come at the cost of credibility and worse, not just for the defendant or petitioner in a given case but for all parties in all criminal – and, often, civil – cases. That is a high price to pay in response to a system that, if it is to work at all, must provide a cost-effective, reliable, non-arbitrary process for determining whether a defendant is death-worthy.

Moreover, when there is a lack of congruence between morality and ethics, those outside the profession question the efficacy of the system itself. Many people decry capital punishment as “too costly” or, at least more costly than life in prison – and empirically, that is true. [94] Some use that costliness as an additional reason that the death penalty should be abolished. Others decry the expense as wasteful and agenda-driven, and call for changes to the system to make it more “efficient.” [95] Part of the reason that the expense is as high as it is is attributable to the resources that are devoted to multiple rounds of review – direct appeal, followed by post-conviction trial court practice and appellate review, followed by federal habeas trial court practice and appellate review – with the potential for seeking a writ of certiorari after each round. And that may be repeated if, for example, claims in federal court are found unexhausted and a defendant is permitted to return to state court to exhaust them. The only way to lessen the costs on the “back end” of state and federal collateral review is to ensure that there are adequate resources at the front end – at the trial that is the focus of the constitutional assurances that a sentence of death can be carried out.

For states that have a death penalty on the books, the statutes and schemes must provide for verdicts in which a community can have confidence. That means that resources – mitigation specialists, mental health and other experts, and well-trained and fairly-compensated lawyers should represent defendants at trial and on direct appeal. Post-conviction proceedings and federal habeas proceedings should not be the primary stage at which the fairness of a trial is litigated. In order for that to happen, there needs to be changes, which in some cases or in some states may be radical ones.

First , as the law changes, it should change for all who were convicted under the old system. When Ring v. Arizona was decided, there were 30 resentencings on remand. [96] Until the bar has confidence that defendants will get the benefit of evolving law, lawyers will be unable to avoid arguing for extensions of the law in any way they perceive applicable to the defendants they represent.

Second , those firms and private donors that are assisting on the “back end” – at federal habeas or in state post-conviction proceedings – should help instead to fund trial-level resources, whether retaining and presenting experts, funding mitigation specialists, or donating funds to help pay for sufficient adequately compensated counsel.

Third , federal deference should be determined by how well a state ensures verdicts worthy of confidence, not by how well it structures post-conviction relief.

This article has explored several inverted incentives that call into question whether the constitutional scheme that the United States Supreme Court envisioned can be achieved – and that at the least shows that it is not there now. As lawyers, the authors of this article adhere strongly to the conviction that a lawyer may exercise zealous advocacy and personal belief only within the confines of our duties to the courts in which we practice – and, as Judge Aldisert suggested – to the law itself. In that spirit, we offer the following thoughts:

At the end of the day – whether because one cannot countenance any taking of life or because one believes that it is not possible to create a system worthy of confidence when it comes to a sentence of death, there will be some who will say that none of this matters: that no matter how a capital sentencing scheme is structured or what protections are in place, it is wrong to execute persons at all. There are two vehicles for the expression of that ethical choice: the legislatures, state and federal, which enact the laws defining or abolishing the death penalty; and the views of the community, which the United States Supreme Court has said is critical to an Eighth Amendment analysis. But for those struggling to respond to capital punishment as lawyers, all three duties of loyalty must be kept in balance: to one’s client, to one’s own conscience; and to the jurisprudential system – both the development of the law and the individual tribunal before which one appears. Daniel prayed before an open window, but he also continued to serve the king.

[1] “ethos.” Oxford English Dictionary. 2014. http://www.oed.com/viewdictionaryentry/Entry/64840 (18 Apr. 2015).

[2] Gregg v. Georgia , 428 U.S. 153, 173 (1976).

[4] Gregg v. Georgia , 428 U.S. at 183-84.

[5] Exodus 21:23-25.

[6] Minute of the Green Country Monthly Meeting of the Religious Society of Friends, on Capital Punishment (May 12, 1996) available at http://www.qis.net/~daruma/cap-pun2.html.

[7] Statement of the Administrative Committee of the United States Conference of Catholic Bishops, on Ending the Death Penalty (Mar. 24, 1999).

[8] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp.

[9] John and Laura McBride, We’d Like To Say: Capital Punishment is Not the Answer , St. Anthony Messenger (Jan. 2002), http://www.americancatholic.org/Messenger/Jan2002/feature3.asp .

[11] Sheldon M. Finkelstein, A Tale of Two Witnesses: The Constitution’s Two-Witness Rule and the Talmud Sanhedrin , 43 Litigation 4 (Summer 2010).

[12] Id . at 17.

[13] Bryan v. Moore , 528 U.S. 1133 (2000) (dismissing as improvidently granted a challenge to electrocution because Florida’s law changed in the interim to permit execution by lethal injection).

[14] E.g., Qur’an 6:151 (“Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom.”).

[15] Gregg , 428 U.S. at 175-76.

[16] Id. at 181-82.

[18] Gregg , 428 U.S. at 189, 194-95.

[19] Id . at 204.

[21] Pulley v. Harris , 465 U.S. 37 (1984).

[22] Walker v. Georgia , 555 U.S. 979, 983-84 (2008).

[23] Proffitt v. Florida , 428 U.S. 242 (1976).

[24] Id . at 208 (quoting Tedder v. State , 322 So. 2d 908, 910 (Fla. 1975)).

[25] Id . at 252.

[26] Jurek v. Texas , 428 U.S. 262 (1976).

[27] Id. at 271.

[28] Id . at 274.

[29] Id . at 276.

[31] Woodson v. North Carolina , 428 U.S. 280 (1976).

[32] Id. at 302.

[33] Id . at 304 (citations omitted).

[34] Roberts v. Louisiana, 428 U.S. 325 (1976).

[35] Id . at 333.

[36] Id . at 335.

[37] Abdul-Kabir v. Quarterman , 550 U.S. 233, 264 (2007).

[38] E.g., Wiggins v. Smith , 539 U.S. 510, 535-36 (2003). The first case to define a constitutional right to counsel as a right to effective counsel is Strickland v. Washington , 466 U.S. 668 (1984).

[39] Berger v. United States , 295 U.S. 78, 88 (1935). See also Mooney v. Holohan , 294 U.S. 103, 112 (1935) (rejecting the Attorney General’s contention that a prosecutor’s obligation extends only to evidence in possession of the defendant).

[40] Brady v. Maryland, 373 U.S. 83 (1963).

[41] Atkins v. Virginia , 536 U.S. 304 (2002).

[42] Roper v. Simmons , 543 U.S. 551 (2005).

[43] Id . at 569.

[44] Id . at 570 (citations and internal quotations omitted).

[45] Ford v. Wainwright , 477 U.S. 399, 401 (1986) (“For centuries no jurisdiction has countenanced the execution of the insane, yet this Court has never decided whether the Constitution forbids the practice. Today we keep faith with our common-law heritage in holding that it does.”).

[46] Drope v. Missouri , 420 U.S. 162, 172 (1975) (recognizing that it violates due process to fail “to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial.”).

[47] E.g ., Ryan v. Gonzales , 133 S. Ct. 696 (2013) (finding no statutory right to a suspension of habeas proceedings during the pendency of petitioner’s incompetence).

[48] Ala. Code § 13A-5-40.

[49] South Carolina Statutes, § 16-3-26; Tennessee Rule of Criminal Procedure 12.3(b)(1) (“When the indictment or presentment charges a capital offense and the district attorney general intends to ask for the death penalty, he or she shall file notice of this intention not less than thirty (30) days before trial. If the notice is untimely, the trial judge shall grant the defendant, on motion, a reasonable continuance of the trial.”).

[50] Kyles v. Whitley , 514 U.S. 419, 434 (1995) (emphasis added).

[51] Lankford v. Idaho , 500 U.S. 110, 125-26 & nn. 20, 21 (1991).

[52] See Governor Tom Wolf, Memorandum, Death Penalty Moratorium Declaration, available at http://www.pa.gov/Pages/NewsDetails.aspx?agency=PAGovNews&item=16512.

[53] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (1989), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/1989guidelines.authcheckdam.pdf .

[54] ABA Resolution, Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (2003), www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf .

[55] ABA Guideline 1.1(A).

[56] ABA Guideline 1.1 (B).

[57] ABA Guideline 6.1.

[58] ABA Guideline 10.4. In 2008, the ABA published the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases (the “Supplementary Guidelines”). The objective of the Supplementary Guidelines is to “summarize prevailing professional norms for mitigation investigation, development and presentation by capital defense teams, in order to ensure high quality representation for all persons facing the possible imposition or execution of a death sentence in any jurisdiction.”

[59] ABA Guideline 9.1.

[60] See, e.g ., Littlejohn v. Trammell , 704 F.3d 817 (10th Cir. 2013); Link v. Luebbers , 830 F. Supp. 2d 729 (E.D. Mo. 2011); State v. Hunder , 960 N.E.2d 95 (Ohio 2011).

[61] Bobby v. Van Hook , 558 U.S. 4, 8 (2009).

[62] Id . at 9.

[63] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[64] Guidelines and Standards for Texas Capital Counsel, State Bar of Texas , 69 Tex. Bar J. 10, 966-982 (Nov. 2006), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/TX_Bar_Association_adopted_version_of_ABA_Guidelines.authcheckdam.pdf .

[66] Alabama Circuit Judge’s Association Resolution (Jan. 21, 2005), available at http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/State/Alabama_Resolution_for_ABA_Guidelines_Aug_2007.authcheckdam.pdf .

[67] Public Defender Commission, State of Arkansas, available at http://www.arkansas.gov/apdc/news/qualifications.html#Cases.

[68] Cal. Rules of Court, R. 4.117.

[70] C.R.S.A. § 16-12-205.

[71] National Center for State Courts, Indigent Defense State Links, available at http://www.ncsc.org/Topics/Access-and-Fairness/Indigent-Defense/State-Links.aspx?cat=Capital%20Case%20Representation#New Hampshire.

[72] Wright v. Angelone , 644 F. Supp. 460, 462 (E.D.Va. 1996) (citing 28 U.S.C. §§ 2261, 2265).

[73] Daniel Silverman, Death Penalty System Broken, Philadelphia Inquirer, Feb. 5, 2015, available at http:/qqq/philly/com/philly/opinion/inquirer/20150105_Death-penatly_system_broker.html.

[75] E.g ., Yarborough v. Gentry , 540 U.S. 1, 8 (2003) (“The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.”)

[76] Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 at *33.

[77] Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics , 74 Geo. Wash. L. Rev. 1 (November 2005).

[78] Id . at 8, quoting Rush v. Cavenaugh , 2 Pa. 187, 189, 1845 Pa. LEXIS 306 (1845).

[79] In tracing the disappearance of this concept, they observe that Henry S. Drinker, in Legal Ethics at 145 & n.32 (1953) was the last treatise author to cite to Rush – and he did so as support for his conclusion that “[a] lawyer is not bound to give his client a moral lecture. He should advise what the law requires, but should not further any of the client’s unjust schemes, and should refuse to become a party to them.” Id .

[80] Zacharias and Green at 34.

[81] Id . at 51.

[82] Id . at 52-53.

[83] 11 Cap. U. L. Rev. 446 (1981-82).

[84] Id . at 454.

[85] Teague v. Lane , 489 U.S. 288, 407 (1989).

[86] Teague recognized exceptions for “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and “watershed rules of criminal procedure.” O’Dell v. Netherland , 521 U.S. 151, 311 (1997).

[87] O’Dell , 521 U.S. at 167.

[88] Beard v. Banks , 542 U.S. 406 (2004).

[89] See ABA Guideline 10.8 (stating that lawyer has duty to “consider all legal claims potentially available” in addition to “supplementing claims previously made with additional factual or legal information”); see also ABA Guideline 10.15.1 (stating that post-conviction counsel should “seek to litigate all issues, whether or not previously presented, that are arguably meritorious under the standards applicable to high quality capital defense representation, including challenges to any overly restrictive procedural rules”).

[90] 2014 Pa. LEXIS 3558 at *68-69.

[91] Id . at *83-85.

[92] See Commonwealth v. Spotz , 99 A.3d 866, 916 (Pa. 2014) (post-decisional single justice opinion).

[93] While only one justice called for overruling the exception in Commonwealth v. Bomar , 2014 Pa. LEXIS 3078 (Nov. 21, 2014), three did so in Commonwealth v. Blakeney , 2014 Pa. LEXIS 3517 (Pa. Dec. 29, 2014),

[94] See Senator Caroly McGinn, “Death Penalty Too Costly,” The Witchita Eagle , March 1, 2009, available at http://www.deathpenaltyinfo.org/new-voices-republican-senator-says-kansas-death-penalty-too-costly; Logan Carver, “Death Penalty Cases More Expensive than Lifetime Imprisonment, But Local CDA Says Cost Never a Consideration,” Lubbock Avalance-Journal, available at http://lubbockonline.com/stories/121309/loc_535156806.shtml .

[95] Arit John, A Botched Lethal Injection Won’t Change Anyone’s Mind About Capital Punishment (posted July 24, 2014), http://www.thewire.com/politics/2014/07/a-botched-lethal-injection-wont-change-anyones-mind-about-capital-punishment/375022 (discussing Chief Judge Alex Kozinski’s argument that to prevent executions from being cruel and unusual, a more efficient form of capital punishment, such as firing squads, should be employed).

[96] 536 U.S. 584 (2002)

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Analyzing the Impact of McCleskey V. Kemp on Racial Bias in Capital Punishment

This essay about the landmark case McCleskey v. Kemp examines the profound impact of racial discrimination on the U.S. justice system. Warren McCleskey’s appeal highlighted statistical evidence of racial bias in death penalty sentences, sparking debate on systemic racism in capital punishment. Despite McCleskey’s arguments, the Supreme Court’s decision set a high threshold for proving racial discrimination, complicating efforts to address systemic biases legally. The case underscores the challenges in achieving racial justice within the American legal system and advocates for legislative and policy changes to address deep-seated issues of inequality.

How it works

In the United States legal history, few cases have stirred as much debate on racial discrimination in the justice system as McCleskey v. Kemp. Decided by the U.S. Supreme Court in 1987, this case tackled complex issues of race, law, and morality that continue to resonate today. Warren McCleskey’s appeal was not merely a legal battle; it was a profound inquiry into whether racial bias influenced death penalty sentences.

Warren McCleskey, a Black man, was convicted of murdering a white police officer during a robbery in Georgia.

His appeal to the Supreme Court didn’t claim innocence but instead focused on a statistical study by Professor David Baldus. The Baldus study highlighted a troubling pattern: in Georgia, killers of white victims were significantly more likely to receive the death penalty than killers of Black victims. Furthermore, Black defendants who killed white victims had the highest likelihood of being sentenced to death.

The core of McCleskey’s argument was that racial disparities, as evidenced by the Baldus study, violated the Eighth and Fourteenth Amendments of the U.S. Constitution, which respectively prohibit cruel and unusual punishment and guarantee equal protection under the law. The case forced the Supreme Court to confront uncomfortable questions about the role of systemic racism in capital punishment.

However, the Court’s decision was ultimately a setback for those advocating for justice reform. By a 5-4 vote, the justices ruled against McCleskey, arguing that the disparities shown in the study were not sufficient to overturn his conviction unless there was clear evidence of conscious racial bias directed specifically at McCleskey. The majority opinion, written by Justice Lewis Powell, stated that the statistical patterns indicated by the study did not prove that racial bias influenced McCleskey’s specific sentence.

The Court also expressed concerns about the broader implications of acknowledging such statistical evidence. Justice Powell suggested that recognizing the study’s findings could throw the entire legal system into disarray, as similar claims could be made in other areas of criminal justice. This decision underscored a significant judicial reluctance to tackle systemic issues unless they manifest in clear and specific instances of discrimination.

The dissenting opinions, notably from Justice William Brennan, argued passionately that the Court’s refusal to recognize statistical evidence of bias perpetuated a form of “moral blindness.” Brennan contended that the judiciary should not turn away from the broader implications of racial disparities, especially in matters as severe as the death penalty.

The repercussions of McCleskey v. Kemp are far-reaching. The decision effectively set a high threshold for proving racial discrimination in the use of the death penalty, requiring specific evidence of intent to discriminate in individual cases. This standard is notoriously difficult to meet, given that few cases involve explicit evidence of racial bias.

In the decades following McCleskey v. Kemp, the case has continued to be cited in discussions about racial inequality in criminal sentencing. Critics argue that the decision has made it nearly impossible to address systemic biases legally. As racial disparities in capital punishment persist, the case serves as a stark reminder of the challenges that remain in achieving racial justice within the American legal system.

McCleskey v. Kemp remains a pivotal case study in the intersection of law and racial inequality. It highlights the complexities and limitations of using the legal system to correct systemic biases, underscoring the need for legislative and policy changes to address these deep-seated issues. While the Supreme Court’s decision was a disappointment for those fighting against racial discrimination in the justice system, it also galvanized activists and legal scholars to continue advocating for a more equitable legal framework.

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Broken Promises: How a History of Racial Violence and Bias Shaped Ohio’s Death Penalty

Posted on May 14, 2024

• Executive Summary
• 5 Facts To Know About Ohio's Death Penalty
• Illustrative Stories

Executive Summary Up

In January 2024, Ohio lawmakers announced plans to expand the use of the death penalty to permit executions with nitrogen gas, as Alabama had just done a week earlier. But at the same time the Attorney General and the Ohio Prosecuting Attorneys Association are championing this legislation, a bipartisan group of state legislators has introduced a bill to abolish the death penalty based on “significant concerns on who is sentenced to death and how that sentence is carried out.” The competing narratives make it more important than ever for Ohioans to have a meaningful, accurate understanding of how capital punishment is being used, including whether the state has progressed beyond the mistakes of its past.  

Ohio’s Black Laws Demonstrate That from the Beginning, Racial Discrimination Was Baked into the State’s Very Foundations.  

Early 19 th century Ohio Black Laws imposed various legal restrictions on the rights and status of Black people in the state, not dissimilar to what would later become Black Codes in many Southern states. As constitutional historian Dr. Stephen Middleton explains, “Although the penal code of Ohio did not explicitly provide for a dual system for handling criminal cases, the Black Laws naturally made race an element in the criminal justice system.”   

Ohio’s 1807 “Negro Evidence Law” prohibited Black people from testifying against white people in court, thus instituting a legal double standard. Articles in African American newspapers from the time reported numerous instances where white assailants attacked Black victims with impunity because there was no legal consequence without a white person who could testify on the victims’ behalf. The state also passed racial restrictions on juries in 1816 and 1831, officially barring Black people from jury service. These laws no longer exist, but modern studies reveal that jury discrimination continues.   

The Overrepresentation of White Victim Cases and Overt Displays of Racism in Capital Trials Demonstrate That Race Continues to Play a Prejudicial Role in Death Sentencing.  

One of the most significant ties between historical death sentencing and the modern use of capital punishment is the preferential valuing of white victims. Multiple Ohio-specific studies have concluded that when a case involves a white victim—especially a white female victim—defendants are more likely to receive a death sentence or be executed. A review of all aggravated murder charges in Hamilton County from January 1992 through August 2017 revealed that prosecutors are 4.54 times more likely to file charges with death penalty eligibility if there is at least one white victim, compared to similarly situated cases without white victims. A separate study of Ohio executions between 1976 and 2014 found that homicides involving white female victims are six times more likely to result in an execution than homicides involving Black male victims. DPIC independently analyzed race of victim data for all 465 death sentences in the state and found that 75% of death sentences were for cases with at least one white victim. For context, most murder victims in the state are Black (66%).  

Black capital defendants have also faced instances of overt racism from jurors, prosecutors, and even their own attorneys. During closing arguments, the prosecuting attorney in Dwight Denson’s trial suggested that if jurors did not sentence him to death, they might as well rename Cincinnati’s Over-the-Rhine neighborhood to “Jungle Land,” adding, “Leave it to Dwight Denson. Leave it to people like him.” An attorney for Malik Allah-U-Akbar (tried as Odraye Jones) reiterated false, racialized testimony from an expert witness during closing arguments: “I think it’s a quarter of the…urban [B]lack American youth come up with antisocial personality disorder…. This isn’t a situation you can treat. … You have to put him out of society until it runs its course.”   

As the current debate over the use of the death penalty in Ohio continues, this report provides historical information, context, and data to inform the critical decisions that will follow.

5 Facts To Know About Ohio's Death Penalty Up

• Historically, Ohioans saw lynchings and capital punishment as interchangeable practices.    Many Black men were victims of lynch mobs in the 19th century after being accused of raping a white woman—regardless of whether there was any evidence to support the claims. In multiple instances, members of these mobs stated that they would not have lynched the victims if Ohio’s death penalty laws allowed for them to be legally “punished with death.” Petitions to add the rape of a white woman as a death-eligible offense ultimately failed, though Black men continued to receive lethal punishment from lynch mobs. Even when photos were taken in broad daylight, lynch mob participants rarely faced any legal consequences for their roles in these extrajudicial murders.  

2. Homicides involving white female victims are six times more likely to result in an execution than those involving Black male victims even though 44% of murder victims are Black men. One of the most persistent forms of racial bias present in capital cases is the race-of-victim effect, shown when cases with at least one white victim disproportionately result in a death sentence. This race-of-victim effect demonstrates one of the strongest ties between the historical application of the death penalty and its use in modern day. Modern statistics reveal the same bias in favor of white victims, and, again, white women in particular, continues today.  

An analysis of Ohio executions between 1976 and 2014 found that the race and gender of the victim play a substantial role in the state’s use of the death penalty. Homicides involving white female victims are six times more likely to result in an execution than homicides involving Black victims. A separate study of all aggravated murder charges in Hamilton County (Cincinnati)—an outlier in its high use of the death penalty—revealed that prosecutors are 4.54 times more likely to seek the death penalty if there is at least one white victim, compared to similarly situated cases without white victims.  

3. Jurors, expert witnesses, and attorneys who made overtly racist statements participated in sentencing Black Ohioans to death.   While many Black capital defendants face structural and covert forms of racism, even some overt displays of racial bias have gone unchallenged and unaddressed in capital trials. A defense expert in Malik Allah-U-Akbar’s (tried as Odraye Jones) trial diagnosed Mr. Akbar with antisocial personality disorder, and falsely testified that this disorder affects “one to three percent of the general population” but was present in “15 to 25 percent, maybe even 30 percent [of] urban African American males.” Dr. Eisenberg further stated that “the best treatment for the antisocial, if the violations are severe, is to throw them away, lock them up.” In Kevin Keith’s capital trial, the prosecution relied on a forensic analyst who was known to “stretch the truth to satisfy a department” and had referred to her Black coworker as “a n****r in a woodpile” and a “n****r b*tch.” Four seated jurors in Terry Lee Froman’s capital trial indicated that they “agree” or “strongly agree” with the statement “[s] ome races and/or ethnic groups tend to be more violent than others.” The Ohio Supreme Court admitted that at least one of the jurors’ “questionnaire responses indicated that she had racially biased views,” but held that the prosecutor had properly rehabilitated her.    

4. Black youth are overrepresented on Ohio’s death row. Black youth are overrepresented among those sentenced to death in Ohio. 66% of all Ohio death-sentenced prisoners aged 16 to 20 at the time of their crime were Black. (For context, the national figure is 49%.) Nearly a quarter of all Black people who have received death sentences in the state were 20 years old or younger at the time of their crimes. Extending the analysis to late adolescents, aged 25 and younger, reveals that 53% of all Black people sentenced to death in Ohio were 25 or younger at the time of their crimes.  

Research has shown that Black youth are often perceived as chronologically older and more culpable than white youth of the same age. These biases mean Black children are judged more harshly than their white peers with respect to questions about guilt and punishment. Young defendants are also particularly vulnerable because of the unequal power dynamics between them and the adults with whom they interact in the legal system. Seven of Ohio’s 11 exonerees were age 25 or younger at the time of the crimes for which they were wrongfully convicted.    

5. None of the reforms recommended by a bipartisan task force ten years ago to reduce racial disparities in capital cases have been adopted In 2011, the Chief Justice of the Supreme Court of Ohio and the President of the Ohio State Bar Association convened a joint task force to review the administration of Ohio’s death penalty. To date, none of the specific recommendations to reduce racial disparities in death penalty cases have been adopted. The recommendations include mandatory specialized trainings for judges, prosecutors, and defense attorneys to recognize and protect against racial biases; requiring judges to report state actors who act on the basis of race in a capital case; removing death penalty specifications that are disproportionately applied to Black defendants; creating a death penalty charging committee at the Ohio Attorney General’s Office; and enacting legislation allowing for racial disparity claims to be raised and developed in state court through a Racial Justice Act.   

Many of the same people who helped develop and enforce Ohio’s death penalty law have since announced their opposition to the death penalty, citing the absence of reforms to safeguard the rights of the accused. In a recent joint op-ed, former Governor Robert Taft and former state attorneys general Jim Petro and Lee Fisher called Ohio’s death-penalty system “broken, costly and unjust,” and further stated that “the death penalty is not applied fairly. Race and place play an intolerable role in deciding who lives and who dies.”  

Illustrative Stories Up

Charles “Click” Mitchell   Estimates of 1,500 to 5,000 people gathered outside the jail where Charles “Click” Mitchell, a 23-year-old Black man, was waiting to be transferred to the state penitentiary. Mr. Mitchell had pled guilty to raping a white woman in Champaign County in June 1897 and was sentenced to 20 years in prison. After the judge publicly lamented that Mr. Mitchell should have received the death penalty, the mob took him from jail to the public square where they brutally beat and hanged him. The New York Times wrote that “There has not and could not be a more inexcusable lynching”—not only because of the brutality involved, but also because it happened in Ohio instead of the Deep South. The Times article concluded by drawing attention to the importance of location: “It would be disgraceful if it were told of a mining camp. But it is told of an old and settled town, fully equipped with schools and churches, which fairly represents the civilization of the Middle West of the United States. In that point of view it is extremely discouraging.” 

Ignoring the photographs taken of the lynch mob in broad daylight, an all-white grand jury refused to indict anyone for Mr. Mitchell’s lynching, claiming a lack of evidence. An article in The Dayton Herald wrote that “Urbana citizens have started a movement for a different punishment for rape in this State. An organization will be formed through the State, and a petition to the next Legislature circulated, making death the penalty for the crime.” 

Mr. Mitchell was just one of many Black men who received some form of lethal punishment because he was accused of harming a white woman.

Walter Raglin  A Hamilton County court sentenced Walter Raglin to death for the 1995 murder of a white man in Cincinnati’s the Over-the-Rhine neighborhood. Even though there had been nine other homicides in the same Cincinnati neighborhood that year, the prosecutor’s office only charged Mr. Raglin, a Black man accused of killing a white man, with the death penalty; the victims in the other homicides were all Black.  

He was 18 years old at the time of the crime, and 19 when he was sentenced to death. Like many people on death row, Mr. Raglin suffers from multiple vulnerabilities, including serious mental illness, brain damage, and chronic childhood trauma. In addition to scoring in the 10th percentile on an IQ test—meaning 90% of people his age scored higher—a neuropsychological examination revealed “some real impairment of his brain from repeated injuries and the repeated assaults of the substance abuse which impair his ability to thoughtfully and reasonably and adaptively plan and organize and conduct his behavior.” The evaluation identified Mr. Raglin as having ADHD, personality disorders, coordination conditions, and depression; all indications of late-adolescence neurodiversity.

Mr. Raglin’s sisters testified on his behalf during his sentencing hearing and explained the hardships their family faced after their parents’ divorce. Growing up, Mr. Raglin’s mother spent the family’s money on crack cocaine and would disappear for days and weeks at a time. The family moved often, and their dwellings were usually infested with mice and insects. Mr. Raglin’s mother permitted him to smoke cigarettes and drink alcohol starting at 9 years old, and by 10, she regularly ordered him to steal money from people to support her substance use. As a preteen, she had him accompany her to her drug deals, acting as her bodyguard.

While the jury heard some information about Mr. Raglin’s traumatic childhood, the jury did not hear how this trauma impacted Mr. Raglin’s brain development, including his actions and behaviors on the night of the offense. For example, his mother’s alcohol use during her pregnancy with Mr. Raglin increases his risk of Fetal Alcohol Spectrum Disorder (FASD), a form of brain damage that impacts both cognitive and social functioning.  The numerous traumatic brain injuries Mr. Raglin incurred throughout his life may also contribute to the neuropsychological dysfunction revealed by subsequent testing.   

The jury also did not hear that the State removed Mr. Raglin from his parents’ custody and placed him in a group home where he was exposed to emotional, physical, and sexual abuse. During these early childhood placements, Mr. Raglin was noted to be “physically very mature for 12” and at one point, he was mistakenly placed in the adult jail.  

In 2021, Mr. Raglin’s attorneys filed a motion for a new trial arguing that his conviction and death sentence were the improper product of racial discrimination. The motion cited evidence from a recent study finding that he was five times more likely to be sentenced to death because of his race and the race of the victim in his case. Mr. Raglin remains on death row. 

Kevin Keith   Kevin Keith was sentenced to death for a triple homicide in Crawford County in February 1994. Mr. Keith has continuously filed appeals in state and federal courts, arguing the prosecution’s use of eyewitness testimonies and forensic evidence was improper. Mr. Keith argues that the police pursued him as a suspect from the start, using circumstantial evidence and false eyewitnesses testimony to identify Mr. Keith as the perpetrator. Police ignored a surviving victim’s identification of an alternate suspect and a failed identification of Mr. Keith. Experts stated that despite the vague description of a “large Black man,” eyewitnesses routinely identified Mr. Keith due to the obstruction of his facial features and the accompanying options in the lineup. The defense also alleges a Brady violation, in which the prosecution withheld information that diminishes the credibility of the State’s forensic analyst, Michelle Yezzo. Ms. Yezzo’s personnel files indicate that she had been known to “stretch the truth to satisfy a department” and she had referred to her Black coworker as “a n****r in the woodpile” and “n****r b*tch.” Since his conviction, numerous people have called for Mr. Keith to be pardoned, for his sentence to be commuted, or for a new trial. In 2010, Mr. Keith was granted clemency by then-Governor Ted Strickland thirteen days before his scheduled execution, citing questionable evidence in the case. Mr. Keith continues to serve a life sentence in Ohio. 

What Went Wrong with Federal Student Loans?

At a time when the returns to college and graduate school are at historic highs, why do so many students struggle with their student loans? The increase in aggregate student debt and the struggles of today’s student loan borrowers can be traced to changes in federal policies intended to broaden access to federal aid and educational opportunities, and which increased enrollment and borrowing in higher-risk circumstances. Starting in the late 1990s, policymakers weakened regulations that had constrained institutions from enrolling aid-dependent students. This led to rising enrollment of relatively disadvantaged students, but primarily at poor-performing, low-value institutions whose students systematically failed to complete a degree, struggled to repay their loans, defaulted at high rates, and foundered in the job market. As these new borrowers experienced similarly poor outcomes, their loans piled up, loan performance deteriorated, and with it the finances of the federal program. The crisis illustrates the important role that educational institutions play in access to postsecondary education and student outcomes, and difficulty of using broadly-available loans to subsidize investments in education when there is so much heterogeneity in outcomes across institutions and programs and in the ability to repay of students.

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