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America’s seemingly insatiable appetite for capital punishment, which is aberrational among western democracies and virtually all of Europe and the other nations of this hemisphere, is on the wane.¹ A report released in December by the Death Penalty Information Center (DPIC) provides impressive empirical evidence of the slow but steady progress toward an end to the barbaric practice.² Executions and the number of states that permit capital punishment both declined, and while the number of new death sentences witnessed a very slight increase over 2012, they were still near their lowest level in 40 years.³  

Executions dropped by about 10 percent from 2012, from 43 to 39, only the second time in nearly 20 years that the United States executed fewer than 40 individuals — a far cry from the high water mark of 98 in 1999.⁴ As of mid-December, when the DPIC report was issued, there were 80 new death sentences compared with the peak of 315 in 1994 and 1995.⁵ The death row population has also steadily decreased since 2001.⁶ Perhaps most significantly in terms of the eventual goal of ending capital punishment, Maryland abolished the death penalty in 2013. This is the sixth consecutive year in which a state has taken steps to eliminate the death penalty.⁷ In signing the legislation, Gov. Martin O’Malley predicted that more states will follow: “Over the longer arc of history, I think you’ll see more and more states repeal the death penalty. It’s wasteful. It’s ineffective. It doesn’t work to reduce violent crime.” There are hopeful signs that several states, including Delaware, Colorado, New Hampshire, and Nebraska are taking a hard look at possible repeal.

Another report by DPIC also shows that even though the death penalty remains on the books in 32 states, most of the death sentences originate from a miniscule percentage of counties in the United States. The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All explodes the notion that capital punishment still enjoys widespread support in this country.⁸ Since 1976, only two percent of the 3,143 counties and county equivalents in the 50 states and the District of Columbia are responsible for the majority of cases that lead to execution, and only two percent of the counties account for the death row population as of Jan. 1, 2013. As DPIC’s Executive Director Richard Dieter observed, “Eighty-five percent of the counties in the U.S. have not had a single person executed in over 45 years.”⁹ This is a reflection that overall support for the death penalty is clearly declining. Former President Jimmy Carter, who has become an ardent opponent of capital punishment, recently observed that while polls show a solid majority of Americans still say they support the death penalty when asked if they want to abolish it altogether, only 33 percent would choose the death penalty for murder, with 61 percent preferring punishment other than death.¹⁰ In the same remarks, Mr. Carter noted that only one percent of police chiefs believe that expanding the death penalty would reduce violent crime.¹¹ 

Recently, there has been a spate of articles and editorials that have decried the continued use of the death penalty on various grounds, including moral concerns with state involvement with execution, cost, unreliability (i.e., the documented potential for mistake), and the arbitrariness that is a direct result of the relatively narrow slice of the nation that imposes death sentences.¹² While all of these grounds are entirely valid and consistent with NACDL’s long-standing opposition to capital punishment,¹³ perhaps the most compelling rationale for abolition are the practical objections that are best appreciated by defense lawyers. It is the defense that is most keenly aware of the inherent flaws in the nation’s criminal justice system. As a result of those flaws, mistakes and injustice are unavoidable. A recent ABA report, the result of nearly a decade of study, definitively catalogues just how flawed capital punishment remains in America.

On Nov. 12, 2013, the ABA Death Penalty Due Process Review Project convened a National Symposium on the Modern Death Penalty in America at the Carter Center in Atlanta. The symposium coincided with the release of the project’s report The State of the Modern Death Penalty in America,¹⁴ the culmination of an eight-year effort to assess the fairness and accuracy of capital punishment in 12 jurisdictions.¹⁵ The assessments used as a benchmark the protocols articulated in the ABA Section of Individual Rights and Responsibilities’ 2001 publication Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States, also known as the ABA Protocols.¹⁶ The results of the assessment are startling.

The assessment teams identified 12 distinct flaws that remain prevalent in the jurisdictions that were studied. These flaws span the gamut of the process, and create an unacceptably high risk of fundamental injustice and inadequate safeguards to minimize the potential that innocent persons will be executed. An abbreviated list of these problems is as follows:

• Faulty law enforcement identification processes that contribute to misidentification and a failure to record the entirety of custodial interviews with suspects and witnesses;
• Inadequate preservation of biological evidence and postconviction access to testing or retesting to establish that a person should not have been subject to capital punishment, in some cases where the previous testing was incorrect or more accurate testing methods are now available;
• Insufficient accreditation of crime laboratories and medical examiner offices, and lack of independence between forensic investigators and law enforcement;
• Failure to establish uniformly robust, independent and effective defense services that meet the standards set out by the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases.¹⁷ 
• Unfettered and inconsistent prosecutorial discretion in charging decisions, which contributes to racial and geographical disparity in the application of capital punishment;
• Inconsistent or wholly deficient mechanisms to investigate and discipline misconduct by prosecutors and ineffective performance by defense counsel;
• Inadequate instruction of capital jurors that promotes fundamental miscomprehension of the jury’s rights and options to impose nondeath sentences;
• Unreasonable and onerous limitations on access to meaningful postconviction review;
• Wholly deficient clemency procedures;
• Lack of judicial independence in the election or appointment of judges that creates the actuality or the perception that a judge’s view of the death penalty or handling of a capital case will affect the decision-making process;
• Inadequate, inconsistent, and antiquated safeguards on the constitutional prohibition on the execution of persons who may suffer from intellectual disability, as well as virtually no safeguards to prevent the imposition of a capital sentence upon those suffering from severe mental illness; and
• Lack of data collection and reporting on the overall use of capital punishment that impairs the ability of researches to determine whether a state’s capital punishment system operates fairly, effectively, and efficiently.

In addition to this fearsome list of broad deficiencies, the assessment teams also identified a number of outlier practices in various specific jurisdictions that included insufficient innocence protection provisions (Florida and Texas), the use of nonunanimous jury verdicts for a death sentence (Florida); judicial override of a jury’s nondeath sentence (Alabama); unreasonably limited access to discovery at trial (Virginia); unreasonably limited access to discovery during state postconviction review (Kentucky and Ohio); a requirement that a defendant must prove intellectual disability beyond a reasonable doubt (Georgia); overreliance upon the questionable concept of “future dangerousness” (Texas); inadequate funding for defense services (Pennsylvania); an alarmingly high error rate (60 percent) in capital prosecutions (Kentucky); and overly broad application of capital punishment that increases the risk of irrational and arbitrary imposition (Alabama, Georgia, and Missouri).

This comprehensive assessment provides irrefutable evidence that in those jurisdictions in which capital punishment remains prevalent, it is rife with injustice and remains the single greatest stain on America’s criminal justice system.¹⁸ For that reason, until every jurisdiction bans the practice or until the abolition movement achieves the critical mass necessary to persuade the Supreme Court that capital punishment is constitutionally cruel and unusual, NACDL will continue to provide training, resources, and support to the capital defense bar. For the past several years, pursuant to a grant from the Bureau of Justice Assistance, NACDL has worked with the capital defense community to conduct intensive training and provide technical assistance to the lawyers and their teams who fight for their clients’ lives case by case, day in and day out. At the same time, NACDL will continue to provide whatever assistance it can on a state by state basis as America slowly but inexorably emerges from the darkness of death.

Notes

1. “[T]he United States is the only country in NATO or North America that still executes its citizens. And the only country in all of Europe is Belarus. And the only country in this hemisphere is Suriname. In fact, the charter of the European Union specifically prohibits the death penalty among any of its members; if a country wants to become a member of the European Union, they have to abolish the death penalty as a prerequisite.” Former U.S. President Jimmy Carter, Remarks at the National Symposium on the Modern Death Penalty in America (Nov. 12, 2013) available athttps://www.cartercenter.org/news/editorials_speeches/death-penalty-speech-111213.html (last visited Jan. 14, 2014).
2. Death Penalty Information Center, The Death Penalty in 2013: Year End Report (2013), available at http://deathpenaltyinfo.org/documents/YearEnd2013.pdf (last visited Jan 14, 2014).
3. Id. at 1.
4. Id.
5. Id.
6. Id. at 2.
7. The six states that have either abolished capital punishment, or rejected attempts to cure an unconstitutional statute, are New Jersey, New York, New Mexico, Illinois, Connecticut, and Maryland. Id. at 5.
8. Richard C. Dieter, The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases at Enormous Costs to All (Oct. 2013), available athttp://deathpenaltyinfo.org/documents/TwoPercentReport.pdf (last visited Jan. 14, 2014).
9. Id. at 2. The top 10 counties of the two percent responsible for more than half of the death row population, as of Jan. 1, 2013, are Los Angeles County, Calif.; Harris County, Texas; Philadelphia County, Pa.; Maricopa County, Ariz.; Riverside County, Calif.; Clark County, Nev.; Orange County, Calif.; Duval County, Fla.; Alameda County, Calif.; and San Diego County, Calif. Id. at 29. The top 10 counties of the two percent responsible for more than half the executions since 1976 are Harris County, Texas; Dallas County, Texas; Oklahoma County, Okla.; Tarrant County, Texas; Bexar County, Texas; Montgomery County, Texas; Tulsa County, Okla.; Jefferson County, Texas; St. Louis County, Mo.; and St. Louis City County, Mo. Id. at 27.
10. Remarks by former U.S. President Jimmy Carter. See note 1.
11. Id.
12. Barbara Mandel, Pursuing Death Penalty Is a Big Waste of Resources, Albuquerque J., Dec. 22, 2013, available at http://www.abqjournal.com/324829/opinion/pursuing-death-penalty-is-big-waste-of-resources.html; J. Toobin, Cruel and Unusual, The New Yorker, Dec. 23, 2013; Editorial, The Slow Demise of Capital Punishment, N.Y. Times, Dec. 29, 2013, www.nytimes.com/2013/12/30/opinion/the-slow-demise-of-capital-punishment.html?ref=editorials&_r=0; Editorial, An End to Death Row?, Wash. Post, Dec. 30, 2013, www.washingtonpost.com/opinions/an-end-to the-death-penalty/2013/12/20/b2d9e4d4-6cd1-11e3-a523-fe73f0ff6b8d_story.html.
13. For years, a cornerstone of NACDL’s Long Range Plan has been the abolition of the death penalty. See http://www.nacdl.org/About.aspx?id=10373&terms-long+range+plan (last visited Jan. 14, 2014).
14. American Bar Association Death Penalty Due Process Review Project, The State of the Modern Death Penalty in America: Key Findings of State Death Penalty Assessments 2006-2013 (2013), available athttp://www.americanbar.org/content/dam/aba/administrative/death_penalty_moratorium/aba_state_of_modern_death_penalty_web_file.authcheckdam.pdf (last visited Jan. 14, 2014).
15. The project conducted assessments in Alabama, Arizona, Florida, Georgia, Indiana, Kentucky, Missouri, Ohio, Pennsylvania, Tennessee, Texas, and Virginia. Id. at 3.
16. ABA Section of Individual Rights and Responsibilities, Death Without Justice: A Guide for Examining the Administration of the Death Penalty in the United States (June 2001), available athttp://www.americanbar.org/content/dam/aba/migrated/irr/finaljune28.authcheckdam.pdf (last visited Jan. 14, 2014).
17. American Bar Association, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Feb. 2003), available athttp://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.authcheckdam.pdf (last visited Jan. 14, 2014).
18. To illustrate just how pervasively capital punishment demeans America’s justice system, read the article in this issue of The Champion that discusses how inconsistently and inhumanely standards related to intellectual disability are applied. See Nancy Haydt, Intellectual Disability: A Digest of Complex Concepts in Atkins Proceedings, The Champion, Jan/Feb 2014 at ____. Also consider the gruesome accounts of a recent execution in Ohio in which the executed person was subjected to 26 minutes of what may fairly be characterized as torture. Kantele Franko & Andrew Welsh-Huggins, Associated Press, Records Reportedly Show Execution Was Ohio’s Longest (Jan. 17, 2014), available athttp://abcnews.go.com/US/wireStory/ohio-executions-face-obstacles-unusual-death-21567792 (last visited Jan. 22, 2014) (“A gasping, snorting Dennis McGuire took 26 minutes to die after the chemicals began flowing Thursday – the longest execution of the 53 carried out in Ohio since capital punishment resumed 15 years ago, according to an Associated Press analysis.”).

About the Author
Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

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