This is a post that I have been thinking of writing for some time but never managed to get around to it. However, the recent Presidential election in the US has given me the opportunity to sit down and finally write it. Now I must apologise in advance as this post is quite long, perhaps the longest I have written since my dissertation (in fact once you have finished it you may think that this post has a lot in common with the legal themes I raised in it). I would beg you to bear with me as I trawl through this subject and use the links attached, especially the YouTube clips as they are incredibly important.
In March earlier this year I was fortunate enough to attend training on the US Death Penalty by Amicus at Freshfields Bruckhaus Deringer LLP in London. Amicus is a small legal charity here in the UK which helps provide representation for those facing the death penalty in the US. It was founded in 1992 in memory of Andrew Lee Jones, who was executed by the state of Louisiana in 1991. His story is an incredibly sad one but unfortunately not an uncommon one for those that find themselves on death row. Andrew’s story can be found here and I would encourage all of you to read it.
Amicus believes that the death penalty is disproportionately imposed on the most vulnerable in society, violating their right to due process and the concept of equal justice before the law. They work to provide better access to justice for those who could not otherwise afford it. They are not a campaigning organisation and instead believe they can make the greatest difference through active involvement in frontline work in the US.
When I undertook the training I already had some pre-existing opinions on the death penalty. I was against it having been a somewhat casual follower of certain criminal cases in the US (not to mention a big fan of many legal dramas that drew inspiration from real life criminal law and death penalty cases). But having sat through two and half days of training and harrowing stories I realised how much I truly did not know about the American justice system and the death penalty. I did not truly realise how incredibly unjust the whole process was and how many were suffering needlessly as a result of what really amounts to politics.
I won’t go through all that I have learnt at Amicus as I would instead encourage those of you that are interested to undertake the training yourself and learn first hand some of the shocking decisions coming out of America and see the great work that Amicus is doing to help those that really need it. I will, however, provide some details as to why Amicus sees its work as so important and attempt to rebuff some of the myths surrounding the death penalty and why it should be abolished. Much of the information here can be found on Amicus’ website and even more by undergoing their training programme.
To begin with the death penalty is not an efficient use of time or resources. The costs of the death penalty system is $114 million per year beyond the costs of imprisonment. In Texas a death penalty case costs $2.3 million, which is three times more expensive than imprisonment in maximum security for a 40 year period. In North Carolina the death penalty costs $2.3 milllion more than a murder case resulting in life imprisonment. Think of how much the US deficit would be helped if capital punishment was abolished.
Many who support capital punishment believe that it is a deterrent against future crimes. There is simply no definitive evidence to either prove or dispute this. Homicide rates climbed into the top 15 causes of US deaths in 1965. It placed tenth for three years in the early 1990s. In recent years, it has been hovering at 13th or 14th and in 2010, it fell to 16th. A recent study by Professor Michael Radelet and Traci Lacock of the University of Colorado found that 88% of the nation’s leading criminologists do not believe the death penalty is an effective deterrent to crime. The study, Do Executions Lower Homicide Rates? The Views of Leading Criminologists, published in the Journal of Criminal Law and Crimonology, concluded, “There is overwhelming consensus among America’s top criminologists that the empirical research conducted on the deterrence question fails to support the threat or use of the death penalty.” It should be noted that a previous study in 1996 had come to similar conclusions.
Even in the 21st Century, and with a black President in the White House, race is still an important issue in death penalty cases. The US has executed c. 650 people in the last ten years. The majority of executions take place in the deep south, where racial tensions still exist. A recent census showed that on Death Row, white inmates accounted for 44%; black inmates accounted for 41%; hispanic inmates accounted for 12%; and other races accounted for 3% of the inmate population. This is quite shocking when you consider that black people only make up 12.9% of the general population of the entire US. A California inmate, regardless of race, is three times more likely to be sentenced to death for killing a white victim than for killing a black victim.
A recent study conducted by Professors Glenn Pierce and Michael Radelet published in the Lousiana Law Review showed that the odds of a death sentence in parts of Louisiana were 2.6 times higher for those charged with killing a white victim than for those charged with killing a black victim. The study examined 191 homicides in East Baton Rouge Parish between 1990 and 2008 involving a charge of first-degree murder. Even after considering other variables such as the number of aggravating circumstances, the number of concurrent felonies and the number of homicide victims, the odds of a death sentence were 97% higher for those whose victim was white than for those whose victim was black. The authors of the study suggested that one reason why the victim’s race was an important factor was because “prosecutors’ offices, jurors, judges, investigating police officers, and others involved in constructing a death penalty case are (consciously or unconsciously) not as outraged or energized, on average, when a black is murdered as when a white is murdered.” The authors said “death penalty cases are expensive, and choices need to be made on how often the death penalty can be sought and in which cases” and that “the social status of the victim and the family of the victim, including his or her race, increases [a case’s] importance.”
The US Supreme Court’s decision in Atkins v. Virginia in 2002 put an end to the execution of defendants with intellectual disabilities on the grounds that it was unconstitutional. Intellectual disability is often still referred to as ‘mental retardation’ in the US. Not exactly politically correct but there you go. The number of people officially diagnosed with intellectual disability who were executed between 1976 and 2002 is 44. This comprises 5.4% of all executions during that time, although people with intellectual disability make up less than 3% of the US population. Although execution is now prohibited, there is no national guidance on how intellectual disability is to be defined or established. There are different criteria in different states and the threshold for establishing competency is often set quite low, meaning that many of those who stand trial for capital murder would not be held competent to do so in other jurisdictions. For example there has been anecdotal evidence that a defendant cannot stand trial with an IQ of 70 in some states, but in others an IQ of 71 is just fine.
Consequently, a significant number of defendants with varying mental health problems remain eligible for the death penalty and can be executed. Mental health conditions other than intellectual disability may count as mitigation but do not render the death penalty unconstitutional. This includes serious conditions such as paranoid schizophrenia. A study in 2006 noted that psychiatric problems were reported in 56% of state inmates, 45% of federal inmates and 64% of jail inmates.
Those defendants without sufficient funds for private legal representation, are generally reliant on the services of public defenders, charitable organisations or pro bono lawyers in the US. In April 2001, US Supreme Court Judge Ruth Bader Ginsburg was quoted as saying that “People who are well represented at trial do not get the death penalty… I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial”. Recent figures show that 90% of death row inmates are classed as indigent.
Many supporters of the death penalty argue that no innocent person has ever been put to death for a crime that they did not commit. However, snce 1973,140 death row prisoners have been exonerated (the three top states: Florida, 23, Illinois, 20 and Texas 12). From 1973-99 there was an average of 3.1 exonerations per year, and from 2000-07 there was an average of 5 exonerations per year. That works out as approximately one person being exonerated for every 9 executed. Ray Krone’s story makes shocking reading and is an example of just one of those exonerated for a crime he did not commit having been on death row.
The story of ‘Sunny’ Jacobs I found to be particularly harrowing when I had the privilege of listening to her speak in March. The link above is a fairly tame version of what Sunny had to endure. She does, however, have a book about her experiences which is a compelling read. ‘Sunny’ later met another death row exoneree called Peter Pringle who had an equally compelling story. Their lives together are an inspirational tale that is deeply touching.
With those kind of numbers above it is hard to believe that an innocent person has not slipped through the appeals net and found themselves trying to enjoy a last meal before a long walk to the death chamber. Many have been executed or remain on death row despite significant doubt about their guilt. The longest serving exoneree is Peter Limone, who spent 33 years on death row in Massachusetts before his conviction was overturned and all charges against him officially dropped. A further twelve exonerees served in excess of 20 years before being released.
On 17th September 2009, a Nightline report on the execution of an innocent man in Texas raised the first real proof that the state of Texas may have executed an innocent man. Cameron Todd Willingham was convicted and executed of arson murder based mainly on discredited arson analysis. Please see the YouTube link above and the even more extraordinary video here from Willingham’s defence attorney, Dave Martin. Martin goes on and on in the film with large doses of denial that his own client could have been at all innocent of the crime. With a lawyer like Martin who needs a prosecutor or jury! Many believe that this is the first clear case of an innocent man being murdered by a state. A bad man Willingham may have been but you surely cannot execute someone on the evidence presented and not undermine the rule of law and due process as a result. Further allegations of a state cover up by Governor Rick Perry belong in a John Grisham novel, not being report as possible fact by a major US news network but unfortunately that is where we now find ourselves and serious doubts have been raised as to the conduct of the Governor of Texas.
Now I accept that it is all well and good me sitting here in the comfort of my liberal, white, middle class Britain writing objectively about the criminal justice and penal system in a foreign jurisdiction. Why does the UK no longer have the death penalty? Well the short answer is that the UK government accepted (unlike the US) that we kept getting it wrong and there were many sent to the gallows who may in fact have been innocent. In 1965 the Labour MP Sydney Silverman, who had committed himself to the cause of abolition for more than 20 years, introduced a private member’s bill to suspend the death penalty, which was passed on a free vote in the House of Commons by 200 votes to 98. The bill was subsequently passed by the House of Lords by 204 votes to 104. The Murder (Abolition of Death Penalty) Act 1965 suspended the death penalty in England, Wales and Scotland (but not in Northern Ireland) for murder for a period of five years, and substituted it with a mandatory sentence of life imprisonment. Peter Allen and Gwynne Evans were the last executions in the United Kingdom on 13th August 1964.
Following the abolition of the death penalty for murder, the House of Commons held a vote during each subsequent parliament until 1997 to restore the death penalty. This motion was always defeated, but the death penalty still remained for other crimes such as mutiny and treason up until 1998 even thought the punishment was never used.
But how might I feel if a loved one of mine was brutally murdered you might ask? Although I have never been in that situation (and hopefully never will be) I am fairly sure that if I had I would be like many others who would want nothing more than venegeance, to take the life of those that had caused my loved ones and I so much pain and suffering. I cannot sit here and say that there would not be a part of me that would not be tempted to recreate some of the scenes from Denzel Washington’s Man on Fire or Gerard Butler’s Law Abiding Citizen. The need to take revenge is perhaps a primal feeling. It is an incredibly powerful emotion that will sweep all of us up at some point in our lives and make us believe that what we do is justified. But that emotive reasoning is not what one should be seeking from their policy makers or courts. Surely one should want those in power to be dispassionate and objective and not standing in a pullpit spouting invective such as “an eye for an eye”? As individuals we should not be supporting state sanctioned murder.
So why did the recent Presidential election push me to finally write this post. Well the truth is that the US Supreme Court is just as politically motivated as the US Senate or US Congress. It is filled with 9 Justices who are split along party lines and a majority to either Democrat or Republican will shape the nation’s laws from the legality of abortion to health care reform and, of course, the death penalty for the next four years. The Court currently has two Democratic leaning Justices that might be considering retirement, and should they choose to step down under a Republican administration then they would likely be replaced by right leaning judges more likely to uphold the death penalty being a constitutional form of punishment. With the re-election of President Obama these judges can be replaced with like minded individuals who will at least keep the status quo and even possibly move the US to abolishing the death penalty nationwide for the first time since 1976.
I would encourage law students and young lawyers alike, even those of you who may only have a general interest in law or human rights, to support the work done by Amicus and other organisations such as Amnesty International in their work to stop the death penalty worldwide. I would like to sincerely thank the whole of the team at Amicus for the training and education that they gave me in March and let me wish them the best of luck in their continued endeavours.
You can follow Amicus on Twitter, Facebook, and LinkedIn. For further information on the history of the death penalty in America I would encourage all of you to read the attached study: Struck by Lightning:The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976. A Report of the Death Penalty Information Center by Richard C. Dieter, Executive Director here.
Disclaimer: The views expressed are those of the writer and this article does not constitute legal advice.