Marcus, Paul --- "Capital Punishment in the United States and Beyond" [2007] MelbULawRw 33; (2007) 31(3) Melbourne University Law Review 837
[∗] AB, JD (UCLA); Haynes Professor of Law and Kelly Professor of Teaching Excellence, Marshall‑Wythe School of Law, The College of William and Mary. A version of this article was presented as the inaugural Peter Brett Lecture at the Melbourne Law School on 20 February 2007. Professor Brett had a remarkable career both in the academic world and as a major force in achieving reform in the Australian criminal justice system. He was a vigorous and successful opponent of capital punishment in Australia. An overview of his most striking work can be found in a thoughtful essay by Peter Ryan, ‘Ripe Justice’ (2005) 49(5) Quadrant 95. See also Peter Brett, The Beamish Case (1966). This article benefited considerably from the incisive comments of Professor Jenny Morgan (The University of Melbourne), the Hon Tommy Miller (Norfolk, Virginia), Professor Nancy Combs (The College of William and Mary), Professor Corinna Lane (University of Richmond), Wayne Logan (Florida State University) and the staff and students of both the Melbourne Law School and the Universidad Rey Juan Carlos, Madrid.
[1] Daniel Frank was executed in the Colony of Virginia in 1622 for the crime of theft: see Melissa S Green, History of the Death Penalty and Recent Developments (2 May 2005) University of Alaska Anchorage Justice Center <http://justice.uaa.alaska.edu/death/history.html> .
[2] Currently, 37 states have the death penalty and 12 states (as well as the District of Columbia) do not: see Death Penalty Information Center, State by State Information (2007) <http://www.death
penaltyinfo.org/state/>.
[3] Tennessee v Garner[1985] USSC 77; , 471 US 1, 13 fn 11 (White J for Brennan, White, Marshall, Blackmun, Powell and Stevens JJ) (1985).
[4] Murder (Abolition of Death Penalty) Act 1965 (UK) c 71 abolished the death penalty in murder cases. The Act did not apply to Northern Ireland. The death penalty was abolished in Northern Ireland by the Northern Ireland (Emergency Provisions) Act 1973 (NI) c 53.
[5] The last execution of a person for a crime other than murder (or conspiracy to commit murder) occurred in 1964 when James Coburn received the death penalty for robbery in Alabama: see M Watt Espy and John Ortiz Smykla, Executions in the United States, 1608–2002: The Espy File (2004). As explained by Justice William J Brennan Jr in his seminal article, ‘Constitutional Adjudication and the Death Penalty: A View from the Court’ (1986) 100 Harvard Law Review 313, 327–8 (citations omitted):
Let us look at the crimes for which societies have seen fit to prescribe death by authority of law: false prophesy, witchcraft, the gathering of sticks on the Sabbath day, gluttony, adultery, incest, prostitution. Let us examine the historical record. In England, in the sixteenth century, a man was drown [sic] for stealing a lamb. Joan of Arc was burned at the stake in 1555 [she was actually killed in 1431]. In 1789, a woman named Christian Murphy was burned at the stake for ‘coining.’ In 1662, in New Haven, Connecticut, a sixty‑year‑old man was executed for committing bestiality. In eighteenth‑century England, one could be executed for shooting a rabbit, forging a birth certificate, stealing a pocket handkerchief, adopting a disguise, or damaging a public building. In 1814, a generation after the Bill of Rights was ratified, a man was hanged for cutting down a tree. In 1750, a woman was executed for stripping a child; another woman was executed for forging a seaman’s ticket; and still another for robbing her master. In 1810 in England, there were no fewer than 222 capital offenses. Public executions were not abolished in England until 1868. There is, indeed, much to learn from history.
Judge William W Wilkins recently discussed the history of capital punishment too, in ‘The Legal, Political, and Social Implications of the Death Penalty’ (2007) 41 University of Richmond Law Review 793, 795:
the number of crimes for which the death penalty may be given has been reduced significantly. The list of death‑eligible crimes during the colonial era seems shockingly long to modern ears. You will not be surprised when I tell you that, in addition to murder, serious crimes like treason, rape, burglary, and arson were punishable by death. The list goes on, however. In Puritan New England, a sentence of death could be imposed for adultery, as well as blasphemy, at least until the late seventeenth century. At one time, in the South, minor property crimes were capital offenses. On the Western frontier, horse stealing was a capital offense. Today, only the crime of murder has remained a capital offense, and as we shall see, there are limitations on when even a cold‑blooded murder could carry a sentence of death.
[6] Violent crimes are prosecuted in the states almost 99 per cent of the time, while less than seven per cent of felony convictions in 2000 were in a federal court: see Bureau of Justice Statistics, Department of Justice, United States, Sourcebook of Criminal Justice Statistics, 2002, NCJ Catalogue No 203301 (30th ed, 2002) 415–16, 421, 447. Death penalty cases are similar. Currently on death row, there are more than 3300 state prisoners and 55 federal prisoners: see Death Penalty Information Center, Federal Death Row Prisoners (15 November 2007) <http://www.deathpenaltyinfo.org/article.php?scid=29 & did=193> . Of course, there are numerous federal statutes which authorise the death penalty, a summary of which can be found in Thomas P Bonczar and Tracy L Snell, Bureau of Justice Statistics, Department of Justice, United States, ‘Capital Punishment, 2004’ (November 2005) Bureau of Justice Statistics Bulletin 1, 13.
[7] Between 1.6 and 1.8 per cent of those currently on death row are women: see Victor L Streib, ‘Death Penalty for Female Offenders’ (1990) 58 University of Cincinnati Law Review 845; Deborah Fins, National Association for the Advancement of Colored People Legal Defense and Education Fund Inc, Death Row USA — Winter 2006 (2006) 1, 8.
[8] For an overview of these capital punishment issues: see Steven D Stewart, The Death Penalty
— Capital Punishment Timeline (2006) Office of the Clark County Prosecuting Attorney <http://www.clarkprosecutor.org/html/death/timeline.htm> . In some states, death row inmates are given a choice as to the form of execution: see, eg, Kristen Gelineau, Va Killer Executed by Electric Chair (21 July 2006) CBS News <http://www.cbsnews.com/stories/2006/07/21/ap/
national/mainD8J04TM81.shtml> where, in Virginia, capital offenders have the option of choosing death by electrocution or injection. There is currently a serious debate as to whether particular forms of execution violate constitutional standards: see, eg, Evans v Maryland, 914 A 2d 25 (Md, 2006); Walker v Johnson, 448 F Supp 2d 719 (ED Va, 2006). See generally Henry Weinstein, Judge Calls California’s Lethal‑Injection Procedure ‘Intolerable’ (15 December 2006) Death Row Speaks <http://www.deathrowspeaks.info/news/procedureintolerable.html> Adam Liptak and Terry Aguayo, ‘After Problem Execution, Governor Bush Suspends the Death Penalty in Florida’ (16 December 2006) The New York Times (New York) 11; John Gibeaut, ‘It’s All in the Execution’ (2006) 92(8) ABA Journal 17; Adam Liptak, ‘Court Rules for Kentucky on Executions’, The New York Times (New York), 23 November 2006, 26. The problems were also widely reported in the Australian newspapers: see, eg, ‘Outrage at “Botched” Half‑Hour Execution’ (16 December 2006) The Australian (Sydney) 16. The US Supreme Court has agreed to review a case raising the question of the constitutionality of lethal injections. The case should be decided in early 2008: see Baze v Rees, 128 S Ct 34 (Mem) (2007).
[9] See, eg, McGautha v California[1971] USSC 87; , 402 US 183 (1971) where the Court, just a year before Furman v Georgia[1972] USSC 170; , 408 US 238 (1972) rejected the broad claim that a lack of standards made the imposition of the death penalty unconstitutional as violative of due process.
[10] [1972] USSC 170; 408 US 238, 247–50 (Douglas J) (1972). See also Corinna Barrett Lain, ‘Deciding Death’ (2007) 57 Duke Law Journal 1; Corinna Barrett Lain, ‘Furman Fundamentals’ (2007) 82 Washington Law Review 1; Stephen F Smith, ‘The Supreme Court and the Politics of Death’ (2008) 94 Virginia Law Review (forthcoming); Scott W Howe, ‘Furman’s Mythical Mandate’ (2007) 40 University of Michigan Journal of Law Reform 435.
[11] Furman[1972] USSC 170; , 408 US 238, 309–10 (Stewart J) (1972).
[12] Marie Gottschalk, The Prison and the Gallows: The Politics of Mass Incarceration in America (2006) 220.
[13] [1976] USSC 164; 428 US 280 (1976).
[14] See also Roberts v Louisiana[1976] USSC 183; , 428 US 325 (1976).
[15] Woodson v North Carolina[1976] USSC 164; , 428 US 280, 301 (Stewart J for Stewart, Powell and Stevens JJ) (1976) (citations omitted). The Eighth Amendment to the United States Constitution prohibits excessive bail and fines. It also proscribes ‘cruel and unusual punishments’, thereby limiting a state’s power to impose punishment on offenders. The meaning of the ‘cruel and unusual’ standard is understood to evolve with civilised society and serves to limit the application of capital punishment. The Supreme Court has held that capital punishment itself comports with the Eighth Amendment, provided its application is not cruel or unusual. The 14th Amendment was originally intended for the benefit of former slaves following the American Civil War. It most notably guarantees the rights to equal protection of the law and due process of the law. Equal protection and, to a greater extent, due process are frequently invoked in criminal cases.
[16] [1976] USSC 171; 428 US 153 (1976).
[17] Ibid 189–95 (Stewart J for Stewart, Powell and Stevens JJ).
[18] Ibid 176–7 (Stewart J for Stewart, Powell and Stevens JJ) (citations omitted).
[19] As discussed more fully below, the Court would not allow execution for the commission of a rape (Coker v Georgia[1977] USSC 151; , 433 US 584, 600 (White J for Stewart, White, Blackmun and Stevens JJ) (1977)) or the use of capital punishment with either the intellectually disabled (Atkins v Virginia[2002] USSC 3164; , 536 US 304, 321 (Stevens J for Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) (2002)) or people under the age of 18 years: Roper v Simmons[2005] USSC 2017; , 543 US 551, 578 (Kennedy J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2005).
[20] See, eg, Uttecht v Brown, 127 S Ct 2218 (2007); Smith v Texas[2004] USSC 5518; , 543 US 37 (2004); Brewer v Quarterman, 127 S Ct 1706 (2007); Abdul‑Kabir v Quarterman, 127 S Ct 1654 (2007); Ayers v Belmontes, 127 S Ct 469 (2006); Kansas v Marsh, 548 US 548 (2006); Ring v Arizona[2002] USSC 3339; , 536 US 584, 609 (Ginsburg J for Stevens, Scalia, Kennedy, Souter, Thomas and Ginsburg JJ) (2002); Simmons v South Carolina[1994] USSC 25; , 512 US 154, 171 (Blackmun J for Blackmun, Stevens, Souter and Ginsburg JJ) (1994); McKoy v North Carolina[1990] USSC 31; , 494 US 433, 444 (Marshall J for Brennan, White, Marshall, Blackmun and Stevens JJ) (1990); Payne v Tennessee[1991] USSC 131; , 501 US 808, 827 (Rehnquist CJ for Rehnquist CJ, White, O’Connor, Scalia, Kennedy and Souter JJ) (1991).
[21] Atkins v Virginia[2002] USSC 3164; , 536 US 304, 319 (Stevens J for Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) (2002).
[22] Ibid; Roper v Simmons[2005] USSC 2017; , 543 US 551, 568 (Kennedy J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (2005).
[23] Gregg v Georgia[1976] USSC 171; , 428 US 153, 179 (Stewart J for Stewart, Powell and Stevens JJ) (1976).
[24] Stuart Banner, The Death Penalty: An American History (2002) 268; Smith, above n 10, 4–5.
[25] Tracy L Snell, Bureau of Justice Statistics, Department of Justice, United States, ‘Capital Punishment 1995’ (December 1996) Bureau of Justice Statistics Bulletin 1, 13.
[26] IND CODE § 35-50-2-9(b) (2004). Most states also include the ‘catch‑all’ factor of a killing done in heinous fashion. Mitigating factors are not limited by statute. They typically include the youth of the offender, a defendant’s troubled background, participation in the killing (if relatively minor compared with that of others who organised the crime), and whether the defendant had limited capacity to appreciate the criminality of his or her behaviour (even if legally sane).
[27] See Indiana Public Defender Council, Links: Death Penalty Information (27 November 2007) <http://www.in.gov/pdc/general/dpinfo.html> . Some examples of the power to grant clemency by state governors can be found in: New York Constitution art 4, § 4; NY [EXEC] LAW (Consol) § 15 (2007); Virginia Constitution art 5, § 12; VA CODE ANN (Michie) § 53.1‑229 (2007); California Constitution art 5, § 8; CAL [PENAL] CODE (Deering) § 4800 (2007).
[28] See generally Marc Mauer, ‘State Sentencing Reforms: Is the “Get Tough” Era Coming to a Close?’ (2002) 15 Federal Sentencing Reporter 50. For a good overview of the current US sentencing situation: see N C Aizenman, ‘Influx of US Inmates Slowing, Census Says’, The Washington Post (Washington DC), 27 September 2007, A12.
[29] See Marc Mauer, The Sentencing Project, ‘Comparative International Rates of Incarceration: An Examination of Causes and Trends’ (Paper presented to the US Commission on Human Rights, 20 June 2003). The Sentencing Project was created in the US in 1986 to promote alternatives to incarceration in the criminal justice system. It conducts research on a range of topics related to criminal justice reforms in sentencing. See generally The Sentencing Project <http://www.sentencingproject.org> .
[30] The population in the US has approximately doubled over the past 50 years, with a total population of 302 million (as at July 2007): United States Census Bureau (2007) <http://www.census.gov> .
[31] For a graph making clear the stark change: see Mauer, ‘Comparative International Rates of Incarceration’, above n 29, 1.
[32] The lowest level of violent crime ever recorded in the US was in 2005: Bureau of Justice Statistics, Department of Justice, United States, National Crime Victimization Survey Violent Crime Trends, 1973–2005 (10 September 2006) <http://www.ojp.usdoj.gov/bjs/glance/tables/
viortrdtab.htm>. As incarceration rates in the US have increased over the past 30 years, the rate of violent crime has decreased sharply. There is arguably a real connection between the two: see Joshua Marquis, ‘The Myth of Innocence’ (2005) 95 Journal of Criminal Law and Criminology 501, 505; William Spelman, ‘What Recent Studies Do (and Don’t) Tell Us about Imprisonment and Crime’ (2000) 27 Crime and Justice 419; Kent Scheidegger and Michael Rushford, ‘The Social Benefits of Confining Habitual Criminals’ (1999) 11 Stanford Law and Policy Review 59. Others, however, strongly dispute any such connection, pointing instead to levels of employment and poverty, and demographic trends: see Susan Turner et al, ‘The Impact of Truth‑In‑Sentencing and Three Strikes Legislation: Prison Populations, State Budgets, and Crime Rates’ (1999) 11 Stanford Law and Policy Review 75; Thomas C Castellano, ‘Limits of the Criminal Sanction in Controlling Crime: A Plea for Balanced Punishments’ (1999) 23 Southern Illinois University Law Journal 427, 433; David Cole, ‘As Freedom Advances: The Paradox of Severity in American Criminal Justice’ (2001) 3 University of Pennsylvania Journal of Constitutional Law 455, 461–2.
[33] Mauer, ‘Comparative International Rates of Incarceration’, above n 29, 2.
[34] See below Part VIII(B)(1).
[35] The strongest death penalty states — in terms of numbers of those prosecuted and executed
— are clustered in the southern part of the US, but states with the death penalty can be found throughout the nation. See also Death Penalty Information Center, State by State Information, above n 2.
[36] Gregg v Georgia[1976] USSC 171; , 428 US 153 (1976).
[37] See Death Penalty Information Center, Executions in the United States, 1608–1976, by State (2007) <http://www.deathpenaltyinfo.org/article.php?scid=8 & did=1110> .
[38] Death Penalty Information Center, Number of Executions by State and Region since 1976 (28 September 2007) <http://www.deathpenaltyinfo.org/article.php?scid=8 & did=186> . See generally Lain, ‘Furman Fundamentals’, above n 10.
[39] According to the US Census Bureau, the population of the three states together is approximately 34 million, out of a total US population of just over 300 million: see United States Census Bureau (2007) <http://www.census.gov> .
[40] The point is well made in Carol S Steiker and Jordan M Steiker, ‘A Tale of Two Nations: Implementation of the Death Penalty in “Executing” Versus “Symbolic” States in the United States’ (2006) 84 Texas Law Review 1869, 1870 (citations omitted):
Today, in the United States, we no longer have simulated executions, and we rarely have pardons or commutations. But a vast percentage of those sentenced to death have not been executed and appear to face no realistic risk of execution in the near future. Pronouncements of death sentences far exceed real executions. … the death penalty today operates as a symbol not as a result of deliberate, transparent decisions, but by a confluence of complicated, poorly understood forces that produce long‑term delay and in some cases defeat of the imposition of the death penalty.
The international community views the United States as monolithic and anomalous in its retention of the death penalty. Whereas virtually all democracies — and certainly all Western industrialized ones — have repudiated the death penalty as unnecessary or even a violation of basic human rights, the United States continues to sentence offenders to death to punish ordinary (non‑treasonous) crimes. Indeed, over the past forty years, as the international community has increasingly repudiated capital punishment, the size of the death‑row population in this country has increased dramatically.
For further information regarding the size of the death row population: see Death Penalty Information Center, Death Row Inmates by State and Size of Death Row by Year (1 January 2007) <http://www.deathpenaltyinfo.org/article.php?scid=9 & did=188> .
[41] See Walter C Reckless, ‘The Use of the Death Penalty: A Factual Statement’ in James A McCafferty (ed), Capital Punishment (1973) 38, 51.
[42] Death Penalty Information Center, Death Sentences by Year: 1977–2007 (2007) <http://www.deathpenaltyinfo.org/article.php?scid=9 & did=873> Tracy L Snell, Bureau of Justice Statistics, Department of Justice, United States, ‘Capital Punishment, 2005’ (December 2006) Bureau of Justice Statistics Bulletin 1.
[43] Bureau of Justice Statistics, Department of Justice, United States, Capital Punishment, 2006
— Statistical Tables (17 December 2007) <http://www.ojp.usdoj.gov/bjs/pub/html/cp/2006/
tables/cp06st15.htm>.
[44] Robert Barnes, ‘Legal Challenges Put Brakes on Executions’, The Washington Post (Washington DC), 19 December 2007, A10.
[45] For a complete listing of the number of people sentenced to death, executed and under a sentence of death for the past 30 years: see Death Penalty Information Center, Number of Executions by State and Region since 1976, above n 38. Apart from a growing — but still limited
— distaste for capital punishment, many reasons have been offered to explain the decline: see, eg, Scott E Sundby, ‘The Death Penalty’s Future: Charting the Crosscurrents of Declining Death Sentences and the McVeigh Factor’ (2006) 84 Texas Law Review 1929, laying out factors such as innocence projects, publicity, more cautious prosecutors, more effective defence counsel, and the growing use of statutes which allow for life imprisonment without possibility of parole; see also Smith, above n 10, 23; Richard C Dieter, A Crisis of Confidence: Americans’ Doubts about the Death Penalty (2007); Death Penalty Information Center, Number of Executions by State and Region since 1976, above n 38; Snell, ‘Capital Punishment 1995’, above n 25; Deborah Fins, National Association for the Advancement of Colored People Legal Defense and Education Fund, Inc, Death Row USA — Spring 2002 (2002); Editorial, ‘The Year in Death’, The Washington Post (Washington DC), 31 December 2006, B06. Even in Texas the decline has been striking. As noted in one recent article exploring the national trend: ‘In 2006, only 15 Texas convicts were sentenced to death, down from 34 a decade earlier’: Evan Thomas and Martha Brant, ‘Injection of Reflection’, Newsweek (New York), 19 November 2007, 40. A number of these factors will be explored below in Part VI.
[46] Death Penalty Information Center, Number of Executions by State and Region since 1976, above n 38; Neil A Lewis, ‘Death Sentences Decline, and Experts Offer Reasons’, The New York Times (New York), 15 December 2006, 28. Between 1964 and 1972, only 17 people were executed in the US. See also Espy and Smykla, above n 5.
[47] Deterrence is not, of course, the only basis seen for the death penalty. As the US Supreme Court itself noted in Furman[1972] USSC 170; , 408 US 238, 308 (Stewart J) (1976), retribution was (and remains today) a powerful argument used to support capital punishment:
The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve,’ then there are sown the seeds of anarchy — of self‑help, vigilante justice, and lynch law.
See also Gregg v Georgia[1976] USSC 171; , 428 US 153, 183 (Stewart J for Stewart, Powell and Stevens JJ) (1976) (citations omitted): ‘“Retribution is no longer the dominant objective of the criminal law,” but neither is it a forbidden objective nor one inconsistent with our respect for the dignity of men.’
[48] See, eg, Marquis, above n 32, 505; William Tucker, Deterring Homicides with the Death Penalty: The Case For Retaining Capital Punishment (7 April 2003) Human Events <http://www.humanevents.com/article.php?id=82> . See generally Robert Tanner, ‘Studies Claim Executions Deter Murder: Critics Say Numbers Don’t Add Up’ (17 June 2007) A9.
[49] In a 1995 research poll, only one per cent of police chiefs in the US believed the expansion of the death penalty would help reduce violent crime. Moreover, a polling of leading criminologists in the US revealed ‘a wide consensus … that the death penalty does, and can do, little to reduce rates of criminal violence’: Michael L Radelet and Ronald L Akers, ‘Deterrence and the Death Penalty: The Views of the Experts’ (1996) 87 Journal of Criminal Law and Criminology 1, 10. See also Roger Hood, The Death Penalty: A Worldwide Perspective (3rd ed, 2002) 230: ‘it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment.’ The most recent research appears to find no clear evidence of deterrence: see, eg, Jeffrey Fagan, Franklin E Zimring and Amanda Geller, ‘Capital Punishment and Capital Murder: Market Share and the Deterrent Effects of the Death Penalty’ (2006) 84 Texas Law Review 1803; John J Donohue and Justin Wolfers, ‘Uses and Abuses of Empirical Evidence in the Death Penalty Debate’ (2005) 58 Stanford Law Review 791. Cf Cass R Sunstein and Adrian Vermeule, ‘Is Capital Punishment Morally Required? Acts, Omissions, and Life‑Life Tradeoffs’ (2005) 58 Stanford Law Review 703. In New Jersey v Ramseur, 106 NJ 123, 180 (Wilentz CJ for Pollock, Clifford, O’Hern, Garibaldi and Stein JJ) (NJ, 1987), the Supreme Court of New Jersey found that ‘“common‑sense” explanations of the penalty’s deterrent effect based on logic … are neither persuasive nor important.’ The Court’s conclusions were recently said to be ‘still valid today’: New Jersey Death Penalty Study Commission, New Jersey Death Penalty Study Commission Report (2007) 28. As one judge has quipped: ‘Who knows? Studies on this issue [the death penalty’s deterrent effect], taken as a whole, will give support for any conclusion you wish to draw’: Wilkins, above n 5, 807.
[50] Today, only 38 per cent of those polled think that the death penalty is an effective deterrent: see Dieter, A Crisis of Confidence, above n 45, 3. Twenty years ago, more than 60 per cent of the US public believed that the death penalty was an effective deterrent: see David W Moore, Public Divided between Death Penalty and Life Imprisonment without Parole (2 June 2004) Death Penalty Information Center <http://www.deathpenaltyinfo.org/article.php?did=1029 & scid=> .
[51] For an excellent treatment of the subject, along with a first‑rate history of the development of capital punishment in the US: see Sundby, above n 45.
[52] Ibid.
[53] Polling Report Inc, Crime/Law Enforcement (2007) PollingReport.com <http://www.polling
report.com/crime.htm>. Of course, one must be careful not to draw too many conclusions from numbers as reflected in the polling data. Numbers can shift rather dramatically, depending on the precise question asked of the individual, the alternatives that are placed before that person, and whether the question is linked to particular cases or is offered in the abstract. For an excellent discussion of this point: see National Public Radio, ‘Death‑Penalty Opinion Varies with the Question’, Weekend Edition Sunday, 2 July 2006 <http://www.npr.org/templates/story/story.php
?storyID=5528030>. Still, the USA Today/Gallup Poll cited in Crime/Law Enforcement shows how the drop has occurred fairly continuously over the last decade. When the question ‘[a]re you in favor of the death penalty for a person convicted of murder’ was asked in 1999, those answering in favour constituted 71 per cent of the public. A year later it was 66 per cent; in 2001, it was 65 per cent; in 2002, the number went up to 72 per cent; and it remained there until the drop again occurred in 2004, when it went to 64 per cent. The latest polling numbers indicate that the supporters of the death penalty, and the supporters of life imprisonment are almost absolutely equal in number.
[54] Polling Report Inc, above n 53. Some observers have quite correctly pointed out that drops in death sentences and in public support for the death penalty are closely connected in some states to statutory enactments allowing for life imprisonment without possibility of parole: see John Blume, Theodore Eisenberg and Martin T Wells, ‘Explaining Death Row’s Population and Racial Composition’ (2004) 1 Journal of Empirical Legal Studies 165. The public attitudes are explored in Dieter, A Crisis of Confidence, above n 45, 8. Yet that change cannot be the entire explanation; some states throughout this period had laws allowing for life imprisonment without possibility of parole, and a similar decline has occurred there in the same period. See also: Sundby, above n 45, 1943–5; Wayne A Logan, ‘Casting New Light on an Old Subject: Death Penalty Abolitionism for a New Millennium’ (2002) 100 Michigan Law Review 1336, 1336–40. For the striking shift on this point in New York State: see Michael Cooper and Marjorie Connelly, ‘Poll Says Spitzer Is Leading Faso in GOP Areas’, The New York Times (New York), 29 September 2006, 1:
Attitudes toward the death penalty [in New York] have shifted significantly as well. In 1994, when voters were asked if people convicted of murder should face the death penalty or life in prison with no chance of parole, 48 percent said that they favored the death penalty, and 35 percent said that they favored life in prison without parole. When the same question was asked this week, 29 percent said that they favored the death penalty, while 50 percent said that they favored life in prison without parole.
For the experience in Florida: see Editorial, ‘Verdict on Death Penalty Also Applies to Florida’, Palm Beach Post (West Palm Beach), 17 January 2003, 16A: ‘Since 1994, when Florida allowed juries the option of choosing life without parole — previously, “life in prison” had meant a mandatory 25 years, then eligibility for parole — the annual number of death sentences statewide has declined by more than 50 percent.’
[55] Sundby, above n 45, 1930–1. A majority of US citizens now favour a moratorium: Dieter, A Crisis of Confidence, above n 45, 11.
[56] NJ STAT ANN (West) § 2C:11‑3 (2006). See Jeremy W Peters, ‘Corzine Signs Bill Ending Executions, Then Commutes Sentences of 8’, The New York Times (New York), 18 December 2007, 3.
[57] Sundby, above n 45, 1972. A striking turnabout with the polls can be seen in another state. In 1999, New Jersey residents supported the death penalty over life imprisonment without parole, by a 44 to 37 per cent margin. Several years later the numbers were reversed with 36 per cent favouring the death penalty and 48 per cent in favour of life without parole: see Laura Mansnerus, ‘Panel Seeks End to Death Penalty for New Jersey’, The New York Times (New York), 3 January 2007, 1.
[58] See Charles Lane, ‘On Death Row in Japan’ (2005) 132 Policy Review 69. For an overview of the information on international polls: see Death Penalty Information Center, International Polls and Studies (2007) <http://www.deathpenaltyinfo.org/article.php?did=2165> .
[59] Death Penalty Information Center, International Polls and Studies, above n 58.
[60] Angus Reid Global Monitor, Lukewarm Support for Death Penalty in Britain (1 February 2006) <http://www.angus-reid.com/polls/index.cfm/fuseaction/viewItem/itemID/10758> . One rather remarkable development occurred in Italy. In spite of the request of over 300 prisoners incarcerated for life, Italy is showing no signs of backing down on its quest for a United Nations world‑wide moratorium on the death penalty. In May 2007, 310 prisoners signed a letter, written by a convicted mobster, petitioning the President of Italy to re‑establish the death penalty so that they would not have to spend the rest of their lives in prison: see Christian Fraser, Italy Inmates Seek Death Penalty (31 May 2007) BBC News <http://news.bbc.co.uk/1/hi/world/europe/
6707865.stm>; Brett Murphy, Italy Prisoners Appeal for Death Penalty Reinstatement (31 May 2007) Jurist Legal News and Research <http://jurist.law.pitt.edu/paperchase/2007/05/italy-prisoners-appeal-for-death.php> . However, according to a press release on 15 June 2007, this appeal has made no difference to Italy’s stance on the death penalty. Italy is more determined than ever to pursue a universal moratorium on the death penalty, and has support from 93 of the UN member states for the moratorium: see Marco Pannella, ‘Italy to Table Pro‑Moratorium on Death Penalty’ (Press Release, 15 June 2007) <http://www.scoop.co.nz/stories/WO0706/
S00287.htm>.
[61] Canadian Press and Leger Marketing, The Opinion of Canadians with Regards to the Death Penalty (2001).
[62] Mikhail Margelov, ‘The Specter of Capital Punishment in Russia’ (2006) 4(1) Russia in Global Affairs 140.
[63] Ibid.
[64] Angus Reid Global Monitor, South Africans Support Death Penalty (14 May 2006) <http://www.angus-reid.com/polls/view/11872> .
[65] Angus Reid Global Monitor, Many Brazilians Favour Death Penalty (24 August 2006) <http://www.angus-reid.com/polls/view/12893> .
[66] Angus Reid Global Monitor, Crime Has Mexicans Contemplating Death Penalty (9 August 2005) <http://www.angus-reid.com/polls/view/8445> .
[67] Angus Reid Global Monitor, Dominican Republic Ponders Death Penalty (22 April 2006) <http://www.angus-reid.com/polls/view/11639> .
[68] Angus Reid Global Monitor, Czechs Argue for Return of Capital Punishment (24 November 2005) <http://www.angus-reid.com/polls/view/9970> .
[69] Gospel of St Matthew (King James version, 2003 ed) 5:38.
[70] Newsweek Letters to the Magazine (17 July 2006) Newsweek.com <http://www.newsweek.com/
id/45841/output/print>.
[71] Ibid.
[72] David R Dow, ‘Death by Good Intentions’, The Washington Post (Washington DC), 15 October 2006, B07. The moral claims are vigorously debated in Daniel R Williams, ‘The Futile Debate over the Morality of the Death Penalty: A Critical Commentary on the Steiker and Sunstein‑Vermeule Debate’ (2006) 10 Lewis and Clark Law Review 625; Sunstein and Vermeule, above n 49; Carol S Steiker, ‘No, Capital Punishment is Not Morally Required: Deterrence, Deontology, and the Death Penalty’ (2005) 58 Stanford Law Review 751. Consider this striking argument by Thomas Kleven, ‘Is Capital Punishment Immoral Even if It Deters Murder?’ (2006) 46 Santa Clara Law Review 599, 601:
capital punishment cannot be justified in the United States in the current historical context for moral reasons that trump consequentialist considerations. This is not an argument that capital punishment is absolutely immoral, since I believe it can be justified in a sufficiently just society. Rather, the argument is that the United States is not that society. Since capital punishment threatens to perpetuate existing social injustices that contribute to murder, substantial societal reform must first be undertaken before it could be considered justifiable.
Cf Claire Finkelstein, ‘A Contractarian Argument against the Death Penalty’ (2006) 81 New York University Law Review 1283.
[73] Catholic Bishops of the United States, Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice (15 November 2000) United States Conference of Catholic Bishops <http://www.nccbuscc.org/sdwp/criminal.shtml> .
[74] Pope John Paul II, Statements on the Death Penalty by the Holy Father (2003) United States Conference of Catholic Bishops <http://www.usccb.org/sdwp/national/deathpenalty/holyfather.
shtml>.
[75] United States Conference of Catholic Bishops, Faithful Citizenship: A Catholic Call to Political Responsibility (2003) (citations omitted). Most recently, the Church called for mercy in connection with those convicted of the 2002 Bali bombings which killed 91 Australians: Barney Zwartz, ‘Spare the Bali Bombers, Says Catholic Church’, The Age (Melbourne), 3 January 2008, 1.
[76] Of course, these and other concerns exist as well in non‑capital cases, but the stakes here make them especially troubling.
[77] See generally Center on Wrongful Convictions, Northwestern University School of Law Bluhm Legal Clinic, Criteria for Cases Listed as Exonerations (2007) <http://www.law.north
western.edu/depts/clinic/wrongful/exonerations>.
[78] See Innocence Project, Benjamin N Cardozo School of Law, Yeshiva University, Facts on Post‑Conviction DNA Exonerations <http://www.innocenceproject.org/docs/DNAExoneration
Facts_WEB.pdf>.
[79] That appears to be the position of Scalia J, who goes to some length to cast doubt on the breadth of the problem in Kansas v Marsh, 126 S Ct 2516, 2529–39 (2006). But see Bob Braun, ‘He Knows Firsthand Death Row’s Fatal Flaw’, The Star‑Ledger (New Jersey), 6 November 2006, 13. There, the former District Attorney of San Antonio, Texas acknowledged that he was not the ‘first or only prosecutor who presided over the execution of an innocent man’. He said:
‘We thought we were doing the Lord’s work’ … ‘What we were really on was a fool’s errand.’ … We have to be able to guarantee that there will be no mistakes in a capital case … Because we are dealing with a system run by imperfect human beings, we can’t make that guarantee. It’s a system that cannot be fixed.
The case involved a misidentification. The defendant, Ruben Cantu, was executed in 1992. See generally, ‘Symposium: The Faces of Wrongful Conviction’ (2006) 37 Golden Gate University Law Review 1.
[80] Addressing the horrendous difficulties in one state, Souter J (for Stevens, Souter, Ginsburg and Breyer JJ) in Kansas v Marsh, 126 S Ct 2516, 2544–5 noted that ‘Illinois had thus wrongly convicted and condemned even more capital defendants than it had executed’. The best recent work in the area is by Samuel R Gross et al, ‘Exonerations in the United States: 1989 through 2003’ (2005) 95 Journal of Criminal Law and Criminology 523. For a recent review of the problems by the founder of the Innocence Project: see Barry C Scheck, ‘Barry Scheck Lectures on Wrongful Convictions’ (2006) 54 Drake Law Review 597. Exonerations were found primarily in cases involving mistaken identify, false confessions or poor scientific testing.
[81] Keith A Findley and Michael S Scott, ‘The Multiple Dimensions of Tunnel Vision in Criminal Cases’ [2006] Wisconsin Law Review 291. A recent study notes that ‘123 people have been freed from death row after significant questions were raised about their convictions — 14 of them through DNA testing’: Robert Tanner, ‘US Death Sentences Drop to 30‑Year Low’, USA Today (Washington DC), 4 January 2007, 6. See generally Peter A Joy, ‘The Relationship between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System’ [2006] Wisconsin Law Review 399.
[82] For a thoughtful discussion of the point: see Sundby, above n 45.
[83] Center on Wrongful Convictions, Northwestern University School of Law Bluhm Legal Clinic, The Florida Exonerated: Joseph Nahume Green (2007) <http://www.law.northwestern.edu/
wrongfulconvictions/exonerations/flGreenSummary.html>.
[84] Associated Press, Long Road from Death Row to Freedom Slayings: Verneal Jimerson Endured 11‑Year Ordeal, Joliet Prisons <http://joliet.com/prisons/executed/williams.html> . See also ‘An Acquittal after 15 Years on Death Row’, The New York Times (New York), 6 December 2007, 31. David Protess and Rob Warden, A Promise of Justice (1998), which describes in some detail what some have referred to as ‘the worst travesty of American justice since the infamous Scottsboro trials in Alabama more than half a century earlier’. The defendants ultimately received millions of dollars to settle claims against the government: Death Row Exonerations Inspire Debate over Death Penalty (15 August 1999) CNN.com <http://www.cnn.com/US/9908/15/
death.row/index.html>. One can readily find many other illustrations of innocent individuals being found guilty — in both capital and non‑capital cases — and then being imprisoned for decades before their innocence was shown: see, eg, Andrew E Taslitz, ‘Wrongly Accused: Is Race a Factor in Convicting the Innocent?’ (2006) 4 Ohio State Journal of Criminal Law 121; Fernanda Santos, ‘DNA Evidence Frees a Man Imprisoned for Half His Life’, The New York Times (New York), 21 September 2006, 1; Amrine v Roper, 102 SW 3d 541 (Mo, 2003). See also John Grisham, The Innocent Man: Murder and Injustice in a Small Town (2006) which is about the miscarriage of justice following the arrest and trial of former professional baseball player Ron Williamson. See generally Rodney Uphoff, ‘Convicting the Innocent: Aberration or Systemic Problem’ [2006] Wisconsin Law Review 739. A Pennsylvania commission has been formed to study the causes of erroneous convictions: see Gabrielle Banks, ‘Pennsylvania Panel to Study Wrongful Convictions’, Pittsburgh Post‑Gazette (Pittsburgh), 31 March 2007, A1.
[85] See also Illinois, Report of the Governor’s Commission on Capital Punishment (2002). Illinois Governor George H Ryan declared the moratorium in 2000. In doing so, he stated that the Illinois death penalty system was ‘arbitrary, capricious, and therefore immoral’: Stewart, above n 8.
[86] See Scott Turow, ‘To Kill or Not to Kill: Coming to Terms with Capital Punishment’, The New Yorker (New York), 6 January 2003, 40. John Grisham’s view is similar — in Grisham, above n 84, 356, he wrote:
The journey also exposed me to the world of wrongful convictions, something that I, even as a former lawyer, had never spent much time thinking about. This is not a problem peculiar to Oklahoma, far from it. Wrongful convictions occur every month in every state in this country, and the reasons are all varied and all the same — bad police work, junk science, faulty eyewitness identifications, bad defense lawyers, lazy prosecutors, arrogant prosecutors.
In the cities, the workloads of criminologists are staggering and often give rise to less than professional procedures and conduct. And in the small towns the police are often untrained and unchecked. Murders and rapes are still shocking events and people want justice, and quickly. They, citizens and jurors, trust their authorities to behave properly. When they don’t, the result is Ron Williamson and Dennis Fritz [innocent people who were sentenced to death.]
[87] Alex J Hurder, ‘Whatever You Think about the Death Penalty, a System that Will Take Life Must First Give Justice’ (1997) 24(1) Human Rights 22, 24.
[88] Powell v Alabama[1932] USSC 137; , 287 US 45, 68–9 (Sutherland J for Hughes CJ, Van Devanter, Brandeis, Sutherland, Stone, Roberts and Cardozo JJ) (1932).
[89] United States Constitution amendment VI provides, in part, that ‘in all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defence.’
[90] Gideon v Wainwright, 372 US 335, 344 (Black J) (1963). The courts in the US have expanded this right to a lawyer beyond representation at trial. Once the defendant has been formally charged, he or she is entitled to have an attorney at identification confrontations with witnesses, interrogations by officers, and important pre‑trial proceedings, such as preliminary hearings and arraignments. The right applies in all cases in which the defendant receives any length of imprisonment as a penalty, no matter how short, even if the sentence is suspended. And, the right continues after trial and includes sentencing proceedings and at least one automatic appeal.
[91] See, eg, Mary Sue Backus and Paul Marcus, ‘The Right to Counsel in Criminal Cases: A National Crisis’ (2006) 57 Hastings Law Journal 1031; Barbara Allen Babcock, ‘The Duty to Defend’ [2005] YaleLawJl 10; (2005) 114 Yale Law Journal 1489; Norman Lefstein, ‘In Search of Gideon’s Promise: Lessons from England and the Need for Federal Help’ (2004) 55 Hastings Law Journal 835; Lawrence C Marshall, ‘Gideon’s Paradox’ (2004) 73 Fordham Law Review 955; Tracey L Meares, ‘What’s Wrong with Gideon’ (2003) 70 University of Chicago Law Review 215. In Elizabeth Beck, Sarah Britto and Arlene Andrews, In the Shadow of Death: Restorative Justice and Death Row Families (2007) 61:
In a death penalty case there are usually two attorneys, the lead attorney and the second chair, and their skill levels range from excellent to appallingly incompetent. Examples of death penalty attorneys’ abysmal behavior abound. Lawyers have been heard calling a client a racial epithet, observed sleeping during the trial, and even seen at the trial inebriated.
[92] Deborah T Fleischaker, ‘Dead Men Pausing: The Continuing Need for a National Moratorium on Executions’ (2004) 31(1) Human Rights 14.
[93] Stephen B Bright, ‘Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer’ (1994) 103 Yale Law Journal 1835, 1837 (citations omitted).
[94] Erwin Chemerinsky, Defenseless Defendants and the Death Penalty (7 December 2005) The Seattle Times <http://seattletimes.nwsource.com/html/opinion/2002668591_chemerinsky07.html> .
[95] The case is Strickland v Washington[1984] USSC 146; , 466 US 668, 694 (O’Connor J for Burger CJ, White, Blackmun, Powell, Rehnquist, Stevens and O’Connor JJ) (1984) (‘Strickland’), which required a demonstration that the lawyer’s performance fell below a standard of objective reasonableness and that, but for the poor representation, the outcome of the proceedings would likely have been different. Some of the harshest criticism of the Strickland standard is found in Smith, above n 10, 51–2; Backus and Marcus, above n 91, 1087–90.
[96] See, eg, Rompilla v Beard, 545 US 374, 377 (Souter J for Stevens, O’Connor, Souter, Ginsburg and Breyer JJ) (2005); Wiggins v Smith[2003] USSC 4779; , 539 US 510, 521 (O’Connor J for Rehnquist CJ, Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) (2003); Williams v Taylor, 529 US 362, 371 (Stevens J for Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) (2000).
[97] Woodford v Visciotti, 537 US 20, 22–3 (Rehnquist CJ, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg and Breyer JJ) (2002).
[98] Slaughter v Parker[2006] USCA6 196; , 450 F 3d 224 (6th Cir, 2006). See Adam Liptak, ‘Despite Flawed Defense, a Death Sentence Stands’, The New York Times (New York), 2 November 2006, 18.
[100] Ibid. See also Jack Fuller, Not in the Name of Justice (3 July 2006) Chicago Tribune <http://www.chicagotribune.com/news/opinion/chi-0607030179jul03,0,3347868.story> .
[101] Only those individuals who indicate they could — if the evidence warranted it — return a verdict of guilty and impose a death penalty sentence are permitted to serve on juries in capital cases. This ‘death qualified’ standard has been highly controversial. See generally Eric Schnapper, ‘Taking Witherspoon Seriously: The Search for Death Qualified Jurors’ (1984) 62 Texas Law Review 977; Witherspoon v Illinois[1968] USSC 195; , 391 US 510 (1968); Lockhart v McCree[1986] USSC 92; , 476 US 162 (1986). See also American Psychological Association, The Death Penalty in the United States (August 2001) APA Online <http://www.apa.org/pi/deathpenalty.html> .
[102] See William J Bowers, Marla Sandys and Benjamin D Steiner, ‘Jurors’ Predispositions, Guilt‑Trial Experience, and Premature Decision Making’ (1997) 83 Cornell Law Review 1476.
[103] The issues are explored in the thoughtful report of the Constitution Project, Mandatory Justice: The Death Penalty Revisited (2006).
[104] [2000] USSC 10; 528 US 225 (2000).
[105] Ibid 236 (Rehnquist CJ for Rehnquist CJ, O’Connor, Scalia, Kennedy and Thomas JJ).
[106] Stephen P Garvey, Sheri Lynn Johnson and Paul Marcus, ‘Correcting Deadly Confusion: Responding to Jury Inquiries in Capital Cases’ (2000) 85 Cornell Law Review 627, 635–6.
[107] Ibid 637. The Capital Jury Project is a continuing programme of university‑based research in the US which seeks to learn whether jurors’ exercise of capital sentencing discretion under modern capital statutes conforms to constitutional standards. See also School of Criminal Justice, University at Albany, State University of New York, What Is the Capital Jury Project? (15 August 2006) <http://www.albany.edu/scj/CJPwhat.htm> .
[108] Garvey, Johnson and Marcus, above n 106, 646. The questions continue. Most recently the US Supreme Court, in a 5:4 decision, concluded that jurors could understand broad language in an instruction regarding the manner in which they must determine the weight of mitigating evidence: see Ayers v Belmontes, 127 S Ct 469 (2006).
[109] ACLU of Virginia et al, Broken Justice: The Death Penalty in Virginia (2003) v.
[110] Richard C Dieter, Death Penalty Information Center, The Death Penalty in 2000: Year End Report (December 2000) <http://www.deathpenaltyinfo.org/article.php?scid=45 & did=488> .
[111] Polling Report Inc, above n 53.
[112] Death Penalty Information Center, Facts about the Death Penalty (2007) <http://www.death
penaltyinfo.org/FactSheet.pdf>.
[113] Joint Legislative Audit and Review Commission of the Virginia General Assembly, Review of Virginia System of Capital Punishment (2002) 14.
[114] Roger Clegg, The Color of Death: Does the Death Penalty Discriminate? (11 June 2001) National Review Online <http://www.nationalreview.com/contributors/clegg061101.shtml> .
[115] McCleskey v Kemp[1987] USSC 105; , 481 US 279, 286–7 (Powell J for Rehnquist CJ, White, Powell, O’Connor and Scalia JJ) (1987).
[116] See ibid 321 where Brennan J (for Brennan, Marshall, Blackmun and Stevens JJ) found the study on race most disturbing:
few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. … Furthermore … defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. … it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence: 6 of every 11 defendants convicted of killing a white person would not have received the death penalty if their victims had been black …
Cf ibid 294–5, 297 (Powell J for Rehnquist CJ, White, Powell, O’Connor and Scalia JJ) (citations omitted) where the majority refused to focus on the broad statistics and instead required that impact on this petitioner be demonstrated:
But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from [other cases using statistics] … Most importantly, each particular decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rests on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to [other cases] … Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study.
[117] Isaac Unah, Race and the Death Penalty in North Carolina — An Empirical Analysis: 1993
–1997 (16 April 2001) Death Penalty Information Center <http://www.deathpenaltyinfo.org/
article.php?did=246&scid=>.
[118] Editorial, ‘Verdict on Death Penalty Also Applies to Florida’, above n 54. The situation in South Carolina is similar: Michael J Songer and Issac Unah, ‘The Effect of Race, Gender, and Location on Prosecutorial Decisions to Seek the Death Penalty in South Carolina’ (2006) 58 South Carolina Law Review 161. See also Susan D Rozelle, ‘The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation’ (2006) 38 Arizona State Law Journal 769; Mustafa El‑Farra, ‘Race and the Jury: Racial Influences on Jury Decision‑Making in Death Penalty Cases’ (2006) 4 Hastings Race and Poverty Law Journal 219; Justin R Arnold, ‘Race and the Death Penalty after McCleskey: A Case Study of Kentucky’s Racial Justice Act’ (2005) 12 Washington and Lee Journal of Civil Rights and Social Justice 93.
[119] Raymond Paternoster et al, An Empirical Analysis of Maryland’s Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction: Final Report (2003). See also Michael Millemann and Gary W Christopher, ‘Preferring White Lives: The Racial Administration of the Death Penalty in Maryland’ (2005) 5 University of Maryland Law Journal of Race, Religion, Gender and Class 1, 9–10 (citations omitted):
it was more than twice as likely that a defendant would be sentenced to death when the victim was white than when the victim was black. In black defendant/white victim cases, it was 1.8 times more likely that prosecutors would give death notifications, and 2.6 times more likely that a death sentence would be imposed.
[In 2000] two judges of the Maryland Court of Appeals, including its Chief Judge, concluded that there is a ‘strong argument’ that ‘there is little or no rationality underlying the actual imposition of the death penalty in Maryland, and that the penalty disproportionately falls on poor African‑American males accused of murdering white victims.’ This was based on over two decades of judicial experiences with the death penalty.
The judges added that, although in theory the Maryland Death Penalty Law is supposed to apply to ‘the more heinous first degree murders,’ there is ‘a strong argument … that, in practice, the statute has utterly failed to produce this result,’ but rather ‘that, in Maryland, ‘this unique penalty’ has been ‘wantonly and … freakishly imposed.’
The cited case is Colvin‑El v Maryland, 359 Md 49, 55 (Eldridge J for Bell CJ and Eldridge J) (Md, 2000). The Maryland Court of Appeals recently rejected a claim that the death penalty was applied unconstitutionally in spite of the bias shown in these studies: Evans v Maryland, 396 Md 256 (Md, 2006). Compare the majority and dissenting opinions discussing the point: Evans v Maryland, 396 Md 256, 325–7 (Wilner J) (Md, 2006) (citations omitted):
Evans argues that the 2003 Paternoster study shows that the imposition of the death penalty throughout Maryland operates in a racially and geographically biased manner. … [In recent years] no court has allowed a claim of this kind. The courts accept the reasoning in McCleskey concerning the failure of general statistics to establish a statewide Equal Protection or Cruel and Unusual Punishment violation and instead require a defendant to assert some specific discriminatory intent in their case. … The result in Maryland should be no different than the consensus around the country. … In Calhoun v Maryland, 297 Md 563 [(1983)] … [t]he Court held:
Absent any specific evidence of indiscretion by prosecutors resulting in an irrational, inconsistent, or discriminatory application of the death penalty statute, [the] claim cannot stand. To the extent that there is a difference in the practice of the various State’s attorney around the State, our proportionality review would be intended to assure that the death penalty is not imposed in a disproportionate manner.
Cf Evans v Maryland, 396 Md 256, 400 (Bell CJ) (Md, 2006): ‘The Paternoster study provides substantial evidence that the Baltimore County State’s Attorney’s Office singled out black defendants from similarly situated white defendants when choosing against whom to seek the death penalty.’ The New Jersey Death Penalty Study Commission found that ‘[t]he available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey’: New Jersey Death Penalty Study Commission, above n 49, 1.
[120] Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) [13.5.48].
[121] Chloe Hooper, Island of Lost Souls (23 July 2006) Guardian.co.uk <http://www.guardian.co.uk/
australia/story/0,,1824986,00.html>.
[122] Human Rights Watch, Racial Discrimination and Related Intolerance (2002) Human Rights Watch: World Report 2002 <http://www.hrw.org/wr2k2/racism.html> .
[123] Scot Wortley and Julian Tanner, ‘Data, Denials, and Confusion: The Racial Profiling Debate in Toronto’ (2003) 45 Canadian Journal of Criminology and Criminal Justice 367.
[124] Gordon Barclay, Angie Munley and Tony Munton, Criminal Justice System Race Unit, Race and the Criminal Justice System: An Overview to the Complete Statistics 2003–2004 (2005) v, 7.
[125] Too Many Aboriginals in Prison, Says Supreme Court (10 November 2000) CBC News <http://www.cbc.ca/canada/story/1999/04/23/scc_native990423.html> .
[126] See above n 119 and accompanying text.
[127] ACLU of Virginia et al, above n 109, 9.
[128] Joint Legislative Audit and Review Commission of the Virginia General Assembly, Review of Virginia’s System of Capital Punishment ò(2002) vi–ii.
[129] Ibid vii.
[130] Other restrictions on the use of the death penalty may yet be coming in the near future. One particularly significant debate concerns the manner in which an individual is executed. As noted above, many methods have been used, although today most states within the US look to lethal injection as the most humane form of capital punishment. This method itself, however, has been subject to intense debate and criticism: see Erik Schelzig, ‘US Judge Rules Tennessee’s Lethal Injection Procedure Is Cruel and Unusual Punishment’, International Herald Tribune (Paris), 19 September 2007, 7; Mike Ward, ‘Death Penalty’s Drug Cocktail Rooted in Texas’, Austin American‑Statesman (Austin), 28 May 2006, A01. A recurring issue concerns the ability of states to execute convicted defendants who are mentally ill, but not legally insane. In Panetti v Quarterman, 127 S Ct 2842 (2007), the problem was that the defendant (severely mentally disturbed) had been limited in the opportunity to submit expert medical evidence about his mental health. This, the Court concluded, violated the United States Constitution. Broader questions involving the mental health of the defendant are being litigated throughout the US. Most recently, the Florida Supreme Court looked to the consideration of mental illness as a factor of mitigation in capital cases in Offord v Florida, 544 So 2d 308 (Fla, 2007).
[131] Coker v Georgia[1977] USSC 151; , 433 US 584, 597–8 (White J for Stewart, White, Blackmun and Stevens JJ) (1977) (citations omitted). The holding has its critics: see, eg, Barbara C Morton, ‘Freezing Society’s Punishment Pendulum: Coker v Georgia Improperly Foreclosed the Possibility of Capital Punishment for Rape’ (2007) 43 Willamette Law Review 1. The Louisiana Supreme Court recently allowed a death sentence for a defendant convicted of raping a young child. The Court distinguished Coker v Georgia[1977] USSC 151; , 433 US 584 (1977), in emphasising the public condemnation of child rape: Louisiana v Kennedy, 957 So 2d 757, 781 (Victory J) (La, 2007). The US Supreme Court has just decided to review the Louisiana ruling: see Robert Barnes, ‘Justices to Consider Death Penalty Issue: Legality in Case of Child Rape at Stake’, The Washington Post (Washington DC), 5 January 2008, A02.
[132] In many cases, it is not the principle of mentally retarded individuals being subject to capital punishment which is at issue, but rather whether the individual is mentally retarded. See, eg, Atkins v Virginia[2002] USSC 3164; , 536 US 304, 317 (2002) where Stevens J (for Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) held:
To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus.
[133] Ibid 318 (Stevens J for Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer JJ) (2002) (citations omitted). After the US Supreme Court’s decision, there has been considerable litigation on the question of who is mentally retarded, and in attempting to establish proper procedures for answering that question: see, eg, Holloday v Campbell, 463 F Supp 2d 1324 (ND Ala, 2006); Clark v Quarterman, 457 F 3d 441 (5th Cir, 2006); Louisiana v Turner, 936 So 3d 89 (La, 2006).
[134] Jeffrey Fagan and Valerie West, ‘The Decline of the Juvenile Death Penalty: Scientific Evidence of Evolving Norms’ (2005) 95 Journal of Criminal Law and Criminology 427, 456.
[135] [2005] USSC 2017; 543 US 551 (2005).
[136] Ibid 569–70 (Kennedy J for Stevens, Kennedy, Souter, Ginsburg and Breyer JJ) (citations omitted). For a good discussion of these US Supreme Court imposed limitations: see Meghan J Ryan, ‘Does Stare Decisis Apply in the Eighth Amendment Death Penalty Context?’ (2007) 85 North Carolina Law Review 847.
[137] John L Allen Jr, ‘US Allies See Death Penalty as Fascist Relic — Brief Article’, National Catholic Reporter (Kansas City), 19 January 2001, 4.
[138] See above Parts IV, VII.
[139] See The Death Penalty Worldwide (2007) Infoplease <http://www.infoplease.com/ipa/
A0777460.html>. The list of nations with capital punishment includes Cuba, Egypt, India, Pakistan, Vietnam and Zimbabwe. See also Smith, above n 10. Still, it is true that some of these countries (as a practical matter) do not consider capital punishment as a viable justice option: see, eg, Kim Rahn, ‘Korea to Retain Death Penalty System’, The Korea Times (Seoul) 3 July 2007, 1. Since 1997, no Korean citizen has been executed, although 63 people have been sentenced to death. If the trend continues through the end of the year, South Korea will become the 31st country listed by Amnesty International to have abolished capital punishment in practice.
[140] Amnesty International, Facts and Figures on the Death Penalty (2 October 2007) <http://www.web.amnesty.org/pages/deathpenalty-facts-eng> .
[141] Ibid. According to Amnesty International, Saudi Arabia executed over 100 people in the first six months of 2007: see Donna Abu‑Nasr, ‘Saudi Beheadings on the Rise Again’, The Guardian (London), 14 July 2007, 7. As of 25 September 2007, there have been 42 executions in the US: Death Penalty Information Center, Searchable Database of Executions (2007) <http://www.deathpenaltyinfo.org/executions.php>. See also Rachel Saloom, ‘Is Beheading Permissible under Islamic Law? Comparing Terrorist Jihad and the Saudi Arabian Death Penalty’ (2005) 10 UCLA Journal of International Law and Foreign Affairs 221. In Iran, the government recently executed 21 people on the same day: Iran Hangs 21 Convicted Criminals (5 September 2007) BBC News <http://news.bbc.co.uk/1/hi/world/middle_east/6979761.stm> . The most recent abolition of capital punishment occurred in June 2006 in the Philippines: Sarah Toms, Philippines Stops Death Penalty (24 June 2006) BBC News <http://news.bbc.co.uk/2/hi/
asia-pacific/5112696.stm>.
[142] Indeed, a number of prominent world leaders opposed the death penalty even for Saddam Hussein: see, eg, Hassan M Fattah, ‘Many Oppose Death Penalty for Hussein’, The New York Times (New York), 7 November 2006, 6.
[143] Opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991).
[144] Ibid preamble.
[145] Ibid.
[146] Ibid art 1(2).
[147] Opened for signature 8 June 1990, OASTS 73 (entered into force 28 August 1991).
[148] Opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).
[149] Opened for signature 3 May 2002, ETS 187 (entered into force 1 July 2003). See generally Amnesty International, International Standards on the Death Penalty (2006).
[150] Human rights groups estimate that 3400 or more people were executed in the PRC in the year 2004: David Lague, ‘China Pressured on Death Penalty’, International Herald Tribune (Paris), 15 August 2005, 3. Another estimate based on Communist Party of China documents concluded that 60 000 people were executed in the 1997–2001 period, an average of 15 000 per year: see Amnesty International, People’s Republic of China, Executed ‘According to Law’? — The Death Penalty in China (22 March 2004) <http://web.amnesty.org/library/index/ENGASA
170032004>. While Amnesty International’s conservative estimates put the number of executions in the PRC in 2005 at 1770 (although ‘the total was believed to be much higher’), this, they claimed, nevertheless represented more than 80 per cent of executions occurring worldwide: see Audra Ang, ‘China Alters Rule on Death Penalty’, The Washington Post (Washington DC), 1 November 2006, A16; Mark Magnier and Alan Zarembo, ‘China Admits Organs Come from Prisoners’, Los Angeles Times (Los Angeles), 19 November 2006, A24. The problems in the PRC continue: see, eg, David Barboza, ‘Ex‑Chief of China Food and Drug Unit Sentenced to Death for Graft’, New York Times (New York), 30 May 2007, 7; China Quietly Executes Sect Leaders (29 November 2006) CBS News <http://www.cbsnews.com/stories/2006/11/29/world/
main2213759.shtml>.
[151] Almost 70 crimes are included in the list of those eligible for capital punishment: see Amnesty International, People’s Republic of China, Executed ‘According to Law’?, above n 150. As Hong Lu and Terance D Miethe note in China’s Death Penalty: History, Law, and Contemporary Practices (2007) 73:
one major obstacle for studying the death penalty in China is the lack of systematic and comprehensive data. … neither the Chinese domestic sources nor international sources provide the specific number of death sentences and executions in China, … it is difficult to gauge the true extent and nature of the death sentence and execution in China …
[152] See, eg, Clifford Coonan, ‘Chinese Millionaire Found Guilty of Murder Executed’, The Irish Times (Dublin), 20 March 2006, 11.
[153] Calum MacLeod, ‘China Makes Ultimate Punishment Mobile’, USA Today (Washington DC), 15 July 2006, 8. In a change that may have a dramatic impact on its capital punishment process, the PRC recently ordered that only the nation’s high court, the Supreme People’s Court, could approve death sentences. The shift which took place in January 2007 eliminated provincial courts from final review: Audra Ang, China Changes Death Penalty Law (31 October 2006) ABC News <http://abcnews.go.com/International/wireStory?id=2617697> . Moreover, the Chief Justice of the Supreme People’s Court in late 2006 ‘urged the country’s judges to exercise caution when sentencing people to death’: Jim Yardley, ‘With New Law, China Reports a Decline in Executions’, The New York Times (New York), 9 June 2007, 3; Daniel Schearf, China’s Chief Justice Urges New Care with Death Penalty (9 November 2006) Voice of America <http://www.voanews.com/english/archive/2006-11/2006-11-09-voa16.cfm> .
[154] Only the states had ever executed criminal defendants: see Ivan Potas and John Walker, Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice — No 3: Capital Punishment (1987).
[155] Opened for signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991).
[156] For an overview of this history: see Potas and Walker, above n 154. A discussion of Peter Brett’s distinguished involvement in promoting the abolition of the death penalty in Australia can be found in Peter Ryan, ‘Ripe Justice’ (2005) 49(5) Quadrant 95.
[157] Editorial, ‘The Last Act’, The Age (Melbourne), 3 February 1967, 5.
[158] Michael Walton, ‘The Death Penalty in Australia and Overseas’ (Background Paper 2005/3, New South Wales Council for Civil Liberties, 2005) 4–5; Angus Reid Global Monitor, Australians Reject Death Penalty for Murder Cases (22 October 2007) <http://www.angus-reid.com/
polls/view/australians_reject_death_penalty_for_murder_cases/>.
[159] This is unlike the situation in the US where politicians have historically capitalised on issues relating to the death penalty to garner support: see Lain, ‘Furman Fundamentals’, above n 10; Erwin Chemerinsky, ‘The Rehnquist Court and the Death Penalty’ (2006) 94 Georgetown Law Journal 1367, 1383. But see Ian Townsend, Interview with Pauline Hanson (Radio interview, 14 February 2001) <http://www.abc.net.au/pm/stories/s246595.htm> .
[160] Mark Forbes, ‘PM Supports Execution of Saddam’, The Age (Melbourne), 3 July 2004, 8. See also Alan Cowell, ‘Around the World, Unease And Criticism of Penalty’, The New York Times (New York), 31 December 2006, 12.
[161] Angus Reid Global Monitor, Australians Reject Death Penalty for Murder Cases, above n 158. The only pause in connection with this widespread support regarding the abolition of the death penalty is a series of polls in Australia, and elsewhere, indicating majority support for the death penalty in connection with people guilty of acts of terrorism.
[162] Amnesty International, Singapore: The Death Penalty — A Hidden Toll of Executions (2004).
[163] Ibid; Misuse of Drugs Act (Sing) cap 185, sch 2.
[164] Amnesty International, Singapore: The Death Penalty, above n 162.
[165] See, eg, Singapore Has Highest Death Penalty Rate (14 January 2004) MSNBC <http://www.msnbc.msn.com/id/3958717/> Amy Tan, Singapore Death Penalty Shrouded in Silence (12 April 2002) Singapore Window <http://www.singapore-window.org/sw02/020412
re.htm>.
[166] Statistics Bureau and Statistical Research and Training Institute, Ministry of Internal Affairs and Communications, Japan, Statistical Handbook of Japan 2007 (2007) 8.
[167] Population Division, Census Bureau, United States, Table 1: Annual Estimates of the Population for the United States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2007 (NST‑EST2007-01) (27 December 2007) <http://www.census.gov/popest/states/NST-ann-est.html> .
[168] Charles Lane, ‘Why Japan Still Has the Death Penalty’, The Washington Post (Washington DC), 16 January 2005, B01.
[169] Ibid.
[170] Amnesty International, Japan: Report 2005 (2005) <http://www.web.amnesty.org/report2005/
jpn-summary-eng>.
[171] Sing or Swing: Anti-Death Penalty Activists (March 2002) Japanfile <http://www.japanfile.com/
modules/smartsection/item.php?itemid=334>. See also Japan Hanging on to Death Penalty (23 April 2003) Human Rights Features <http://www.hrdc.net/sahrdc/hrfeatures/HRF75.htm> Lane, On Death Row in Japan, above n 58.
[172] One of the few articles to take notice was Carl Freire, Japan Executes 4 Prisoners by Hanging (25 December 2006) FOXNews.com <http://www.foxnews.com/wires/2006Dec25/0,4670,Japan
Execution,00.html>.
[173] Ibid.
[174] Lane, On Death Row in Japan, above n 58. See also Norimitsu Onishi, ‘Pressed by Police, Even Innocent Confess in Japan’, The New York Times (New York), 11 May 2007, 1.
[175] This is a point made repeatedly in contrasting the US criminal justice system with others in the common law world: see, eg, Paul Marcus and Vicki Waye, ‘Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds’ (2004) 12 Tulane Journal of International and Comparative Law 27.
[176] The points are well laid out in American Bar Association, Building Momentum: The American Bar Association Call for a Moratorium on Executions Takes Hold (2003).
[177] See especially Franklin E Zimring, The Contradictions of American Capital Punishment (2003).
[178] Australian Law Reform Commission, Principled Regulation: Federal, Civil and Administrative Penalties in Australia, Report No 95 (2002) [25.8]; Karen Yeung, ‘Quantifying Regulatory Penalties: Australian Competition Law Penalties in Perspective’ [1999] MelbULawRw 18; (1999) 23 Melbourne University Law Review 440, 442.
[179] Sundby, above n 45, 1962. See also above n 57 and accompanying text.