End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice 9780674981959

Citation preview

END OF ITS ROPE

END OF ITS ROPE How Killing the Death Penalty Can Revive Criminal Justice

BRANDON L. GARRETT

Harvard University Press

Cambridge, Mas­sa­c hu­s etts London, ­E ngland 2017

Copyright © 2017 by Brandon L. Garrett All rights reserved Printed in the United States of Amer­ic­ a First printing Library of Congress Cataloging-­in-­Publication Data Names: Garrett, Brandon, author. Title: End of its rope : how killing the death penalty can revive criminal justice / Brandon L. Garrett. Description: Cambridge, Massachusetts : Harvard University Press, 2017. | Includes bibliographical references and index. Identifiers: LCCN 2017011498 | ISBN 9780674970991 (alk. paper) Subjects: LCSH: Capital punishment—United States. | Judicial error—United States. | Discrimination in capital punishment—United States. | Life imprisonment—United States. | Defense (Criminal procedure)—United States. | Evidence, Criminal—United States. | Criminals— Rehabilitation—United States. Classification: LCC KF9227.C2 G37 2017 | DDC 364.660973—dc23 LC record available at https://lccn.loc.gov/2017011498 Jacket design: Jill Breitbarth

To Kerry

CONTENTS

1 An Awakening  1 2 Inevitability of Innocence  17 3 Mercy vs. Justice  49 4 The G ­ reat American Death Penalty Decline  79 5 The Defense-­Lawyering Effect  106 6 Murder Insurance  132 7 The Other Death Penalty  167 8 The Execution Decline  187 9 End Game  212 10 The Triumph of Mercy  233

Appendix  263 Notes  281 Acknowl­edgments  321 Index  325

END OF ITS ROPE

1 AN AWAKENING

We can abolish the death penalty. We must abolish the death penalty. Ten years ago, that declaration would have been laughable, just another liberal fantasy. But no more. The death penalty in the United States is at the end of its rope. We can abolish it not in a ­matter of generations, but in a ­matter of years. And it is imperative that we do so, for its abolition ­will be a catalyst for reforming our criminal justice system. In the past de­cade, death sentences and executions in the United States have declined dramatically, even in ­those states most ­eager to legally kill ­people. No one is quite sure why this is happening—­ providing an answer is an impor­tant goal of this book—­but more and more ­people agree that it is very good news. And it is occurring at a moment when ­people on the right and left agree that we desperately need to overhaul Amer­i­ca’s criminal justice system. Flaws in high-­profile death penalty cases are making headlines and shocking the public, and t­ hose miscarriages of justice sow doubts about the death penalty, but they can also drive reforms for all types of criminal cases. The decline and fall of the death penalty w ­ ill save lives, but more impor­tant it provides an opportunity to revive the broken American justice system. I w ­ ill show how a fair defense can mean the difference between life and death, and I ­will explore

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the disturbing implication ­behind that fact: what about the vast number of non–­death penalty cases in which bad ­lawyers are ­doing shoddy work and watching their clients go to jail? The death penalty’s demise w ­ ill allow us to focus on remedying inept lawyering, overzealous prosecution, inadequate ­mental health treatment, race discrimination, wrongful convictions, and excessive punishments. When the end of the death penalty comes, we can redouble efforts to prevent per­sis­tent errors due to false confessions, eyewitness misidentifications, lying in­for­mants, and flawed forensic testimony that affect untold numbers of less serious criminal cases. Death penalty cases show how the humanity of a person ­matters, even for the supposedly “worst of the worst” murderers. We can emphasize rehabilitation for p ­ eople who commit crimes, offering mercy over punishment—­and to end mass incarceration we must do just that. In this book, I w ­ ill draw a road map from the demise of the death penalty to the many reforms that are so desperately needed.

Choosing Life over Death John “Jose” Rogers had just been convicted of capital murder in rural Stafford County, ­Virginia, in 2006. Now his ­lawyer was asking the jury to spare his life. While ­there was “no way to make this right,” his ­lawyer said, “if you lock this man up in the kind of prison that he ­will be in for the rest of his life, [then] no one can say to you that that’s not justice. It’s justice tempered with mercy.” The jurors deliberated that eve­ning and for most of the next day. Then they announced their verdict: life without the possibility of parole. A ­Virginia jury had rejected the death penalty. In the Rogers case, the defense ­lawyers had used a “big firm, New York” approach never tried before in a ­Virginia death penalty case. They investigated their client intensively, working in a

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five-­lawyer team alongside five investigators, searching for information like school report cards or m ­ ental health rec­ords that might humanize their client. At the four-­day sentencing hearing, the team presented twenty-­one witnesses and showed how Rogers was the victim of horrifying abuse by his ­father, who beat and tortured him, making his childhood “a virtual experiment in atrocity, in brutality.” Perhaps most moving was testimony from Rogers’s younger ­brother, whom he had tried to shelter from the abuse. Jurors initially deadlocked, but they fi­nally reached una­ nim­i­ty and deci­ded to exercise their power of mercy.1 This is not just happening in ­Virginia. Take the trial of James Holmes, who killed twelve moviegoers and wounded scores more in the notorious Aurora, Colorado, mass shooting in 2012. That jury also chose life without parole, as I describe in Chapter 3. His ­lawyers used sophisticated methods to carefully select the jury. Over the course of more than four months, the judge winnowed a list of 9,000 prospective jurors down to twelve plus alternates. In the end, two jurors remained on the fence, and a single juror would not budge in opposition to a death sentence, citing Holmes’s ­mental illness. One of the many shocking facts that come to light when studying the death penalty in the United States is that t­ hese cases have rarely evidenced sophisticated or even particularly thorough lawyering. In the 1980s and 1990s, states imposed cut-­rate caps on ­lawyers’ pay, t­ rials ­were usually short, and courts regularly let death sentences stand even when defense ­lawyers had fallen asleep in court, showed up drunk, referred to their clients with racial slurs, or admitted they had not prepared for trial. As a direct consequence, states like ­Virginia became ruthlessly efficient death penalty machines. ­Virginia has the highest rate of executions of any state and has executed the third-­highest number of prisoners in the United States since the 1970s. No one expected the ­Virginia

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death penalty to quietly fade away. Yet in that notoriously tough-­ on-­crime state, prosecutors now try to get death sentences far less often than they used to. As of this writing in 2017, ­there have been no new death sentences imposed since 2011, and five p ­ eople sit on ­Virginia’s death row, from a high of over fifty in the 1990s.2

Bending the Arc of Justice ­ irginia is a microcosm of what is happening nationwide. ­After V two de­cades of steady increases, the American death penalty is disappearing, and it has reached the end of its rope. As Figure 1.1 shows, the death penalty experienced a rapid rise but then an inexorable fall. Since the late 1990s, death sentences have declined steadily. This is not limited to high-­profile cases or par­tic­u­lar states. Nineteen states and Washington, D.C., have abolished the death penalty, but thirty-­one states and the federal government still have it. Far fewer of ­those places actually use the death penalty anymore. This is a national decline reaching ­every death penalty state—­even states like Texas, which is alone responsible for over a third of the almost 1,500 executions carried out in the United States since the late 1970s, and over 1,000 of the just over 8,000 death sentences handed down since the late 1970s. ­There ­were just four death sentences in Texas in 2016, down from as many as fifty a year in the 1990s. ­There ­were only thirty-one new death sentences in the entire country in 2016, the lowest number in more than three de­cades. With the death penalty ebbing in states like ­Virginia and Texas, California now produces the highest number of death sentences. While California has the largest death row in the country, it has not had an execution since 2006.3 This sudden decline in the American death penalty came as a total surprise. The arc of justice was supposed to be long and bend only slowly. None predicted that the death penalty in Amer­ic­ a

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300 250 200 150 100 50 0 1975

1980

1985

1990

1995

2000

2005

2010

2015

Figure 1.1 ​Death sentences in the United States, 1973–2016. Sources: Bureau of Justice Statistics, U.S. Dept. of Justice; data collected by author.

would come crashing down. Even less appreciated is how this social trend speaks volumes about the pres­ent and ­future of our criminal justice system. ­After all, our treatment of the “worst of the worst” murderers has implications for how we treat less serious crimes. During the same time period that death sentences ­were routinely handed down, prison sentences ­were lengthened, life without parole was expanded (even to juveniles), and “tough on crime” was a po­liti­cal mantra. When I set out to better understand this remarkable turnaround, its ­causes, and its broader implications, one reason why so few saw it coming became obvious. No one had collected national data on the decline in death sentences. In fact, ­there was no information at all about which localities and counties stopped

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sentencing ­people to death during the key years of the death penalty decline. I deci­ded to take on the proj­ect of hand-­collecting that information—­from prison rec­ords, from death penalty appeals, and by contacting death penalty l­ awyers around the county. I was not sure what I would find. No single explanation for the death penalty decline seemed plausible.

An Innocence Effect? Two ­brothers, Leon Brown and Henry McCollum, spent de­cades on death row in North Carolina before DNA tests freed them in 2014. Commenting on how the very delays that caused the b ­ rothers’ cases to linger in the courts for de­cades saved the lives of the innocent men, U.S. Supreme Court Justice Stephen Breyer asked the other justices to consider whether the American death penalty was still constitutional. Justice Breyer wondered whether death penalty cases were more error prone, or whether it was that only in death penalty cases did anyone actually look carefully at the facts, ­because of the life-­and-­death stakes.4 In Chapter 2, I w ­ ill describe why wrongful convictions are per­sis­tent and inevitable in death penalty cases. The reasons are many, but for now consider just this: twenty individuals have so far been exonerated from death row based on DNA evidence, and many more based on other types of evidence. In each of t­ hese cases, the incriminating evidence seemed power­ful at the time of trial. I obtained the original transcripts of the death penalty t­rials of convicts ­later exonerated by DNA testing. Let me underscore that: DNA testing allows us to know for a certainty that t­hese twenty convicted individuals ­were innocent. What do their t­rials tell us? Ten of the twenty exonerees who had been sentenced to death had falsely confessed. Four of ­those who confessed ­were intellectually disabled persons who we might expect were highly suggestible and vulnerable to police coercion. At another ten

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t­rials, testimony came from in­for­mants (including jail­house in­for­ mants) who we now know lied on the stand. At eight ­trials, eyewitnesses, sometimes more than one, made erroneous identifications. At fourteen ­trials, government experts presented flawed forensic evidence (for example, hair and bite-­mark comparisons). Even in the highest-­profile death penalty cases, the government presented a wide range of power­ful evidence that was false.5 In addition to the twenty DNA exonerees who ­had been sentenced to death, ­over one hundred more have been exonerated from death row based on other types of evidence.6 Countless o ­ thers, including twenty-­eight ­later freed by DNA tests, received lesser sentences at trial or pleaded guilty to crimes they did not commit to avoid risking the death penalty. ­Every year more ­people walk off death row based on new evidence of innocence. We ­will never know how many innocent ­people have been executed, but ­there is strong evidence that several have been in recent years. Still more troubling, t­ hese exonerations do not themselves explain the decline in death sentences. Many death penalty l­awyers have told me they believe that prosecutors and jurors and judges share growing concerns about wrongful convictions in death penalty cases. That may be true. However, t­ here is no pattern by which states with more exonerations also see greater declines in death sentences. Instead, the states with the most death sentences have the most exonerations. As disturbing as it is that wrongful convictions are an inevitable product of death sentences, exonerations play only a part in Amer­i­ca’s turning away from capital punishment.

The Crime Decline What other ­factors could be at work here? In Chapter  4, I w ­ ill explore two national trends that correspond to the sudden decline

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in the death penalty. First, murder rates began a remarkable drop across the country in the mid-1990s—­the ­Great American Crime Decline, as law professor Franklin Zimring has called it. The best available data show a stunning decline in murder rates in the early 1990s and, after a spike in 2001 due to the 9 / 11 attacks, a steady decline into the 2000s. Murder rates, like all crime rates, have been falling for years (with an occasional uptick, as in 2015).7 We do not know exactly why. This dramatic decline came just before death sentences dropped. Yet many murders occur in states that do not have or do not use the death penalty. Even in death penalty states, many murders are not eligible for the death penalty, which is in theory reserved for the “worst of the worst” killers. Moreover, when murders increased slightly in the early 2000s, death sentences continued to drop. At the state and county level, I have found a statistical connection between murder rates and death sentencing. The decline in murders clearly played a role in the death penalty decline. The role it played, however, is complex. Texas experienced a sharp drop in death sentences as the number of murders fell, but murders fell even faster in California, where death sentencing remained high. Moreover, at the county level, the connection between murders and death sentences shows a troubling pattern: it is the counties with more white victims of murder that impose more death sentences. Two insights are irrefutable. First, the murder decline certainly shows in stark terms that we do not need the death penalty to reduce murders. Second, perhaps as a result of the decline in murders and crime, death sentences as well as public support for the death penalty have continued to decline. With crime dropping and fewer executions and death sentences, p ­ eople may increasingly forget why they ­were ever so insistent that some murderers be sentenced to death. This too has profound implications for reducing punishments more generally in Amer­i­ca.

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Life without Parole Perhaps the death penalty declined b ­ ecause lawmakers changed the law. Many death penalty l­awyers told me that introducing life without parole (LWOP) as an option must have changed the calculus for jurors and for prosecutors. P ­ eople wanted to be assured that life r­ eally meant a life sentence. Jurors may have sentenced ­people to death fearing that with a life sentence, t­here was a chance that the murderer would walk the streets again someday. Indeed, some death penalty abolitionists have pushed the idea of replacing the death penalty with LWOP. Before 1980 few states had LWOP, but a wave of states a­ dopted it during the same “tough on crime” era when the death penalty was rising in use. In Chapter 4, I reject LWOP as a primary explanation; it only weakly corresponds with any decline in state death sentences. For example, in 2005 Texas was the last death penalty state to introduce LWOP—last, in part, ­because many prosecutors worried that it would make juries less likely to impose the death penalty. Yet when LWOP was a­ dopted, the death penalty was already on the decline in Texas, and that did not change. Nor was t­ here a change in other states. Oklahoma, for example, a­ dopted LWOP in 1988 but then saw a sharp rise in death sentences.8 Meanwhile, as I describe in Chapter 7, something far more troubling has happened as LWOP has taken hold across the country: life rows have mushroomed in size, dwarfing the population of death rows even at their height. Texas now has almost 800 p ­ eople serving LWOP and 9,000 more serving life with parole, most of whom ­will in practice never receive parole (meaning they are serving what I refer to as “virtual life” sentences).9 We have replaced the death penalty with a virtual death penalty whereby hundreds of thousands of ­people are assured to die in prison. ­There is a hidden tragedy in this trend—namely, that the attention given to discovering

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miscarriages of justice drops off precipitously with LWOP. ­Here, then, is one urgently needed reform: the death penalty, LWOP, and “virtual life” must all be replaced with a system in which rehabilitation in the outside world is always a possibility.

It Takes a Team Another possibility is that the underappreciated work of defense ­lawyers has made it harder for prosecutors to win death sentences. On the ground, in the states that provide minimally adequate resources, defense l­awyers have done more with less and radically improved how they litigate death cases. A stark example is ­Virginia. The number of capital sentences in ­Virginia first began to drop right a­ fter the legislature created four regional Capital Defender offices. The offices have staff specially qualified to investigate and litigate death penalty cases. In Chapter 5, I describe what I learned by reading all the ­Virginia death penalty t­rials from the past de­ cade. The offices a­ dopted that “big firm, New York” approach, and they started to win case ­after case, usually by avoiding a trial, but also by winning most ­trials when they occurred. Over the years, the Supreme Court has increasingly emphasized the importance of adequate defense counsel, but for de­cades the courts routinely allowed ­people to be executed despite egregiously bad ­lawyers—­even ­lawyers who fell asleep during a capital trial.10 Other states, like Florida, have done ­little to provide adequate resources for capital defense, and t­ hose states have not experienced such sharp declines in death sentences. The death penalty persists in the places that deny the defense the ability to put up a fair fight. One can only won­der about all of the non–­death penalty cases in which hapless l­awyers for poor defendants remain totally outgunned. Moreover, death penalty defense teams can cost less than the private ­lawyers that judges appoint. The teams heavi­ly rely

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on nonlawyers, particularly investigators skilled in locating social ser­vices rec­ords, medical rec­ords, and school rec­ords. They can uncover sensitive information about f­amily sexual abuse, ­mental health prob­lems, brain injuries, and alcohol and substance abuse. It takes a team to compile someone’s entire life story. Death penalty cases highlight how social workers can humanize a person in a way l­awyers cannot when working alone. There is an implication here for our entire criminal justice system: when defendants have the resources to tell their story, they can show why they do not deserve harsh punishment.

Tightening the Death B ­ elt If all politics is local, as Tip O’Neill once famously said, criminal justice is only more so. To r­eally understand why and how the death penalty is declining, one has to look within states at the individual counties where death sentences are still imposed. I explore this shifting geography in Chapter  6, sharing findings that stunned me. The decline has not occurred only at the state level; very few counties still have death sentences. And it is easy to predict which counties do not. The smaller, poorer counties no longer seek the death penalty. What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger ones, with an entrenched pattern of seeking the death penalty. These are also counties that tend to have large black populations. Overzealous prosecutors in large counties obtain death sentences that add up to disturbing patterns of racial bias: ­such patterns have defined the local geography of the death penalty for de­cades. The handful of counties that engage in death sentencing do respond to murder rates, but they sentence more p ­ eople to death if they experience more murders with white victims. A form of “muscle

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memory” dominates death sentencing: counties that sentence ­people to death are far more likely to keep d ­ oing so. The flip side is that once counties stop death sentencing, they are also likely to remain ­free of death sentences. ­These deepening trends, as fewer counties impose death sentences, seem likely to stay fixed in place. The few counties that still sentence p ­ eople to death are national outliers more than ever before. Only sixteen counties in the entire country sentenced on average more than one person to death a year from 2010 to 2015. ­These included counties like Caddo Parish, in northwest Louisiana, where the prosecutor emphatically says they should “kill more ­people.” Also included is Los Angeles County, California, which leads the country in death sentences, followed by Harris County, Texas. As a judge once put it, “Texas is called the Death B ­ elt. Harris County is the buckle.”11 Even the leading death counties, though, have seen sharp declines in sentences in recent years. In 2016, only twenty-­seven counties sentenced p ­ eople to death, and only one, Los Angeles County, sentenced more than one person to death. Should a handful of counties keep an entire state’s execution machinery ­going? More generally, mass incarceration in this country results from decisions by officials to impose long prison terms rather than pursue shorter terms or rehabilitation. The dispersed geography of the death penalty provides a lesson: we should not let a few counties set extreme and biased punishments that we all pay for in the end. Fair criminal justice cannot remain entirely local.

Executions Joseph Wood “gulped like a fish on land” while his ­lawyers argued on the phone with the Arizona attorney general. They w ­ ere asking the judge to call off a botched execution. ­After two hours

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and thirteen doses of drugs that the state was supposed to give just once, Wood died and the judge ended the call.12 Executions remain in total disarray as states botch executions using untested drugs bought from shady sources and employing shoddy, secretive techniques. Indeed, executions have declined even faster than death sentences. In 2016, states carried out only twenty executions. State moratoria on executions, due to the inherent lack of a humane way to conduct executions, explain this only in part. As I describe in Chapter 8, executions are even more geo­graph­i­ cally arbitrary than death sentences; just a handful of counties in the entire country carry them out. Furthermore, executions are even more racially skewed than death sentences. Only a small fraction of the over 8,000 death sentences imposed since the 1970s have resulted in executions; many have been reversed on appeal or commuted to life sentences. Many prisoners languish on death row in­def­initely. ­These days the chances of ­dying of natu­ral c­ auses or suicide on death row are greater than the chances of being executed.

A Dif­f er­e nt Death Amer­i­ca’s death penalty has been turned on its head, and I explore the end game for the death penalty in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country.13 I am not sure it ­matters when or ­whether the U.S. Supreme Court abolishes the death penalty legally. The death penalty ­will have largely dis­appeared with a whimper before any such bang, due to the hard work of ­lawyers and a growing realization, in part driven by declining crime, that

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the death penalty serves no useful purpose. The ­people have spoken. Death penalty cases have long provided a bellwether for American attitudes t­ oward criminal justice. In the heyday of the death penalty, lawmakers passed national and state legislation stripping away prisoner rights to address concerns about endemic delays in death penalty cases. In Texas, “Ashley’s Law,” which created a sex offender registry, was passed in reaction to a death penalty case: one in which the man convicted was ­later exonerated by DNA testing. Lawmakers sped up appeals in death penalty cases, cut off funding to defense ­lawyers, and created hypertechnical procedural barriers for appeals and habeas. In contrast, t­ oday, ­lawyers have uncovered so many errors that exonerations have contributed to a “new death penalty debate.”14 Open-­file discovery, forensic science improvements, videotaping of interrogations, and other reforms have flowed from concerns about wrongful convictions, particularly in death penalty cases. Indeed, Texas—­yes, Texas—is now the poster-­child state for reforms to prevent wrongful convictions. A law reform commission named a­ fter exoneree Timothy Cole prompted a raft of reforms, including eyewitness identification procedures, forensic science improvements, and sweeping rules requiring prosecutors to give the defense police records and other discovery. Following a lengthy trial, the jurors chose a life without parole sentence in the Aurora Theater shooting trial a­ fter hearing from a battery of experts describing the defendant’s severe m ­ ental illness. In a non–­death penalty case, though, top ­lawyers and doctors might never get called. The “death is dif­fer­ent” mantra long demanded special rules and resources for death penalty cases, but lawmakers are beginning to make use of the tools developed in capital cases to reform the entire system. A new reliance on pretrial mental health screening takes lessons on the importance of mitiga-

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tion from death penalty cases to all our jails and prisons, which are disproportionately filled with mentally ill and disabled ­people. The team-­based approach in death penalty cases is catching on not just in life without parole cases, but in public defense more broadly. I conclude in Chapter  10 by describing what this means for criminal justice in Amer­i­ca. ­Today, states are creating drug courts and ­mental health courts, using evidence-­based approaches to release low-­level offenders, helping prisoners with reentry, reducing barriers to employment, and focusing resources more on rehabilitation than on punishment. A long list of states, both red and blue, in the southern heart of the death penalty, in the West, and in the Northeast are now adopting reforms. ­These include Alaska, Georgia, Ohio, Oklahoma, Kentucky, Mary­ land, Mississippi, Texas, and dozens more. States are saving billions of dollars by reducing incarceration, and t­hose same states are experiencing the largest reductions in crime.15 Ending mass incarceration w ­ ill require taking t­ hese “smart on crime” approaches farther, though, since most prisoners did commit a violent offense, but with rehabilitation they need not do it again. If we provide the tools, the death penalty w ­ ill end, having unraveled on the weight of its own injustices. The same tools that have all but driven the death penalty into the ground, like consistent statewide teams of defense ­lawyers, an opportunity to humanize a person accused of a crime, and careful investigations of the facts, can then be harnessed to more broadly restore criminal justice in this country. Only by succumbing to fear did we drive up death sentences in the 1980s and 1990s, and we have l­ittle to show for that experiment in mass death sentencing. At the same time, we created the world’s largest prison system in the land of the f­ree. Now we know better. We can respond to crime by preventing it and by rehabilitating ­people, rather than by imposing severe punishments out of a sense of helplessness.

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More than the reform of our own criminal justice system hangs in the balance. Most countries around the world have already abolished the death penalty, and b ­ ecause of our adherence to the practice, they no longer look to Amer­i­ca for moral leadership in criminal justice. ­After the fall of the death penalty, we can begin to reclaim our role as a standard-­bearer for fairness. At a time when some politicians seek to stoke punitive emotions, it is impor­ tant to remember how we have all but escaped the self-­defeating cycle of punishment in death penalty cases. We did it once and we can do it again. Our supersized mass-­incarceration system needs a crash diet—­and the end of the rope for the death penalty can give criminal justice renewed life.

2 INEVITABILITY OF INNOCENCE

“I w ­ on’t have the opportunity to again get in front of you and try to convince you that this is prob­ably the most cruel, atrocious and heinous crime you’ll ever come in contact with,” said prosecutor Joe Freeman Britt of Lumberton, North Carolina, at the conclusion of his closing statement in the trial of two young men facing the death penalty.1 According to the Guinness Book of World Rec­ ords, Britt was then the “deadliest prosecutor in the world.” He earned that macabre title by sending forty-­seven ­people to death row during his years as a prosecutor, from 1974 to 1988. He was known for his flair for the dramatic, quoting the Old Testament while “prowling the courtroom like an outraged Minotaur,” and ­going “straight for the aorta.”2 Britt spared no emotion in the cases of Leon Brown and Henry McCollum. In 1983 in the small farming town of Red Springs, North Carolina, a f­ather returning home from a midnight shift reported his ­daughter missing. The next day, a f­ amily friend found her unclothed body in a nearby soybean field. She was just eleven years old. A high school student told police she had heard that a teenage boy who was new to town, Henry McCollum, was responsible. When the police interrogated him into the night, he reportedly confessed in detail. His half ­brother, Leon Brown, also confessed.3 At trial, though, McCollum took back his statement and said he had caved

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­ nder pressure and had only repeated what police told him they u wanted to hear. Prosecutor Britt questioned him on the stand: “­Didn’t that touch your soul at all when that l­ittle girl was down on the ground hollering?” “It ­didn’t touch my soul ­because I ­didn’t kill nobody,” said McCollum. “It ­doesn’t touch your soul now, does it?” “­Because I ­ain’t killed nobody. I want to tell you something, Joe Freeman, God got your judgment right in hell waiting for you.”

Robeson County had the highest murder rate in North Carolina in the mid-1980s, and some of the most high-­profile murders, particularly of blacks and Native Americans, had gone unsolved. At the time, a journalist described the county as a “land where fear and vio­lence are so pervasive that nearly every­one owns a gun,” and where ­there was a simmering distrust of law enforcement. A local journalist, referring to the prosecutor, Joe Freeman Britt, put it this way: “We abide by our own set of rules h ­ ere that has nothing to do with the Constitution of the United States or the Constitution of North Carolina. It’s a monarchy. Old Joe’s in charge.”4 On Tuesday, September  26, two days a­ fter the eleven-­year-­old girl went missing, the police spoke to McCollum, a nineteen-­ year-­old intellectually disabled African-­American. He lived in New Jersey but was visiting his ­mother in Red Springs. McCollum denied knowing anything about a murder. The next day a neighbor saw a stained white sweater in a ditch near her h ­ ouse, and then another f­amily friend helping to search the area found the girl’s

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body in the soybean field. The police chief called the State Bureau of Investigation (SBI), which specialized in forensics work. An SBI specialist arrived that eve­ning. First, he took photo­graphs of the body: “The female was on her back, face up. The legs w ­ ere spread apart.” ­There w ­ ere “scratches, marks, on the body and debris, leaves and sticks and stuff like that in the hair of the black female.”5 The weeds had been flattened in the area. He saw several sticks on the ground that had blood on them, and matches, and a cigarette butt from a Newport brand cigarette. He saw a piece of plywood on the ground. To test the plywood he used a field kit, with a type of paper that shows a “pink reaction for the presence of blood.” The test came out positive. On the opposite side of the bean field, he found three cans of Schlitz Malt Liquor, the “tall-­type of beer cans,” and a plastic holder for the six-­pack they came in.6 As night approached, law enforcement wrapped the body in a white sheet, placed it in a body bag, and transported it to the medical examiner’s office in Chapel Hill, North Carolina, to conduct an autopsy. The SBI agent watched as the medical examiner removed “the inner part of the throat area.” The agent then saw two ­things that ­were not vis­i­ble at the crime scene. He “noticed first ­there was a stick protruding through . . . ​two dif­fer­ent locations through the neck.” Next, the pathologist “made an incision . . . ​ and t­ here was her pan­ties, a pair of pan­ties.”7 The pathologist “had to pull the pan­ties out and the stick was connected to the pan­ties.” The forensics work continued. The beer cans ­were fingerprinted, and the analyst sent the prints to the SBI laboratory in Raleigh, North Carolina, along with the cigarette butt, matches, and sticks from the scene. A rape kit was prepared, and the samples w ­ ere 8 also sent to the SBI lab. The police began to talk to every­one in town to learn more about what had happened. Police interviewed a local seventeen-­ year-­old three times and gave him a polygraph. He denied knowing

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anything about the murder, and police ultimately concluded that he was being truthful.9 At 9:10 p.m. the police picked up McCollum and took him to the station. They fingerprinted him and talked about unrelated ­things for about an hour. Then the police asked him point blank: did he murder the girl?

The Interrogations Henry McCollum was in the police chief’s office with the door shut for hours. When a suspect is in custody, the police must give the well-­known set of warnings that the Supreme Court required in Miranda v. Arizona, informing the person of their constitutional rights ­under the Fifth and Sixth Amendments to remain s­ ilent, to request a ­lawyer, and the like. The police observed that rule. As an officer recalled at trial, McCollum was read each of his rights, and he put his initials next to each on the provided form. He also signed a form stating that “[n]o pressure or coercion of any kind” was used against him. This was all quite typical. Suspects rarely invoke their Miranda rights, even innocent suspects. Nor is it clear that juveniles fully understand what ­those rights mean. At this point McCollum was not ­under arrest, and if the police had conveyed to him that he was f­ ree to stop talking and leave, he would have done just that. Instead, for over four hours three officers interrogated McCollum. During the interrogation, he was given three soft drinks and “went to the rest­room twice.” The office from the state crime lab recalled McCollum being composed the entire time.10 Fi­nally, the police took a statement from him, though the crime lab officer “actually did the writing.” Why him? He ­wasn’t a detective. But he was intimately familiar with the crime scene.11 Nothing was recorded during the entire conversation. Instead, the police typed up the statement for McCollum to sign.

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The minute the statement was signed, McCollum “started out the door of the police department.” When asked why, he said, “That officer ­there told me I could leave.” The officer had told him three dif­fer­ent times that if he cooperated he could leave. But now that he had confessed, he “was not f­ree to leave then.” He was placed ­under arrest.12 Meanwhile, the police asked Leon Brown, McCollum’s half ­brother, to come to the station too, which he did, along with his ­mother and s­ ister. Brown was a juvenile—­just fifteen years old. The officers put Brown in the adjacent room, where they normally conducted Breathalyzer tests; the department was too small to have a dedicated room for conducting interviews. At trial, the officer read the statement that he had taken that night from Brown. “Leon states this past Saturday night, while his s­ister Geraldine and her boyfriend, Lewis, w ­ ere out . . . ​Darrell and Chris Brown came walking down the street in front of his h ­ ouse, as he walked out onto the street and met them.” Next, “Darrell said, ‘­We’re ­going to get [the victim] and rape her.’ Then he said, ‘­We’re g­ oing to kill her ­after we rape her.’ Leon said, ‘I ­ain’t g­ oing. I’m ­going home, Man.’ Then the other person spoke and said, ‘­We’re with Darrell, ­ain’t we?’ ”13 According to the police-­recorded confession, Brown demonstrated to the police how the victim fought back when the pan­ties ­were put down her mouth, and how she was breathing when she died.14 The officers typed up a confession statement for Brown to sign. The officer recalled at trial how Brown had said, “I ­don’t read too good.” The officer said he “[r]ead each line. As I went through I stopped. I stopped at least 20 times and paused and asked him if that was correct, if that was right.” Leon Brown “signed each page and signed the end of the statement.” The officers never asked why Brown was in the seventh grade, despite being fifteen years old. They supposedly never learned that he was in special classes for

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the handicapped. They did ask w ­ hether he could write, and he said he could not.15 The officers did not ask about the three additional ­people who supposedly took the lead in carry­ing out the murder. The police fixated just on McCollum and Brown. The boys’ ­mother testified that at the station she could hear loud voices: “ ‘­Didn’t you kill [the victim]; ­didn’t you kill [the victim]?’ and Brown saying, ‘No, no, no.’ ” She could hear McCollum “sniffling and crying,” so she put her head to the door to listen. She asked if she could see him, and the officers refused, telling her that if she did not return to the waiting area and sit down, she would be placed u ­ nder arrest. She stayed at the Red Springs Police Department through the night.16 McCollum signed his statement at two a.m. A half hour l­ater, Brown signed his statement. The officers claimed that both boys had waived their rights to speak to a ­lawyer. Now they each badly needed a good one.

The ­L awyers In fact, they would need several. Instead, the judge appointed each boy one ­lawyer. ­Today, it is standard to have at least two l­awyers appointed in an individual’s death penalty case. That is the recommendation of the American Bar Association, and the current law in North Carolina provides for two ­lawyers for any capital defendant.17 ­Today, it is also standard practice to ensure that a ­lawyer is “qualified” as capable enough to h ­ andle a death penalty case. ­After all, a death penalty trial not only has high stakes, but it r­ eally involves two ­trials. A first trial answers the question ­whether the defendant is guilty of capital murder. A second trial decides whether a convicted murderer deserves the death sentence. Every­thing about a death penalty trial is unusual and complicated. For starters, a death penalty case takes time and money. The defense must retain experts to investigate the complete life history of their client, including medical, m ­ ental health, and social ser­

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vices rec­ords. The defense must investigate the types of complex forensics often collected in murder cases. The costs are far higher for prosecutors, too. In the high-­profile Scott Peterson case, in Modesto, California, the prosecutor’s office spent over 20,000 hours preparing, with thirty-­three employees working on the case, including five ­lawyers and seven investigators.18 In federal courts, prosecution costs are over two-­thirds higher than defense costs; ­after all, the prosecution must put on all the evidence of guilt, including any forensic or medical evidence, crime scene evidence, and evidence from the detectives about their investigation. Then again, unlike the defense, the prosecution has substantial help. State attorney general offices have death penalty specialists who can consult on cases and who h ­ andle appeals and habeas. They have the resources of the police and the state crime laboratory. Medical examiners and ­mental health experts await their call. A defense l­awyer appointed by the judge, like the ones in McCollum and Brown’s case, must largely work in the dark, without the rec­ords from all ­those police investigators, and if the judge provides the funds, must put a team of experts and investigators together from scratch. ­Today, most criminal cases are plea-­bargained. A prosecutor has a choice ­whether to go forward to a trial or not. Back in the 1980s, though, it was required in North Carolina that a prosecutor seek the death penalty when ­there was evidence of at least one aggravating circumstance (and ­there ­were many in this case).19 Nor was life without parole an option. Not u ­ ntil 1994 would North Carolina pass a law that made life without parole available as an alternative to the death penalty in a capital murder case. With mandatory death charging, death sentences w ­ ere being mass-­produced in the 1980s and 1990s in North Carolina. This was also true across the country, and mostly within a Southern “death ­belt.” Figure 2.1 illustrates how death sentences have been completely dominated by the Southern states.

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Capital Sentences

300 250 200 150 100 50 0 1980

1985

1990

1995

2000

2005

2010

2015

Year West

Midwest

South

Northeast

Figure 2.1 ​Capital sentencing by region, 1979–2016. Source: Data collected by author.

Even small counties like Robeson County, North Carolina, held death penalty t­rials routinely. From 1977 to pres­ent, twenty-­one ­people ­were sentenced to death just in Robeson County. Over the years, most of t­hose death sentences w ­ ere reversed in the courts, and just two ­people w ­ ere executed. Still more surprising is why the incentives to seek so many flawed death sentences w ­ ere put in place to begin with.

No Longer Cruel and Unusual By the early 1970s the death penalty in the United States seemed to be waning, perhaps disappearing. Executions had dropped from over 150 per year in the 1930s to about seventy per year in the 1950s and fewer than fifty per year in the 1960s.20 By the early 1970s, no executions w ­ ere occurring. Death sentences had also declined, from about 140 per year in the 1930s and 1940s to about

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100 per year in the 1960s. And of ­those, only one in four resulted in an execution; most ­were commuted or pardoned, and many ­others ­were reversed on appeal or habeas.21 Six states abolished the death penalty, and ­others narrowed it sharply.22 The  U.S. Department of Justice opposed the death penalty. Many leading national groups, religious organ­izations, and newspapers announced their opposition to the death penalty, and opinion polls showed that most of the country opposed it.23 And yet ten years l­ater, by the early 1980s, when Brown and McCollum ­were prosecuted, the death penalty was in full swing in North Carolina and other key states. What changed? Enter the Supreme Court. The court struck down the death penalty in Furman v. Georgia in 1972, holding that the Eighth Amendment of the Constitution forbade the death penalty as “cruel and unusual punishment,” with the justices divided in their reasoning.24 Justice William Brennan emphasized that the death penalty was imposed in an arbitrary manner in a “trivial number of cases in which it is legally available.”25 Justice Thurgood Marshall emphasized that the “burden of capital punishment falls upon the poor, the ignorant, and the ­under privileged members of society.”26 However, the three other concurring justices believed that the death penalty was unconstitutional only ­because the death penalty laws at the time ­were arbitrary and gave largely unfettered discretion to jurors to decide ­whether or not to impose the death penalty.27 As Justice Potter Stewart put it, the death penalty was “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” b ­ ecause the death penalty was “so wantonly and freakishly imposed.”28

Reacting to the Supreme Court In reaction to the Supreme Court’s decision, North Carolina did not get rid of the death penalty. Instead, the state tried to put its

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thumb in the Supreme Court’s eye, and its legislature passed a statute making the death penalty mandatory for first-­degree murder. North Carolina’s death row grew and grew. By the mid1970s, at 120 inmates it was the largest death row in the country.29 The Supreme Court held in 1976 that this mandatory death penalty law was unconstitutional.30 But in Gregg v. Georgia the court reversed course and said a state can impose the death penalty so long as a law, such as Georgia’s, provided guidance to the jurors in deciding w ­ hether the death penalty was appropriate.31 Following Georgia’s lead, as most other death penalty states did, in 1977 North Carolina passed a new death penalty statute that tried to comply. North Carolina was not out of the woods yet, though. In 1979, the state had to change its statute when the Supreme Court held that the death penalty could not be imposed for rape, but only for murder.32 And in 1990 the Supreme Court struck down a North Carolina rule that ­every one of the twelve jurors had to agree that a mitigating f­ actor was pres­ent.33 Meanwhile, public support for the death penalty began an ascent, with polls showing 75 ­percent or more of adults supporting the death penalty through the mid-1990s. This change accompanied a rec­ord increase in violent crimes. High-­profile murders drew sustained media attention. Presidential candidates, starting with Richard Nixon, made law and order a central theme.34 When the death penalty was brought back in full form in the late 1970s, out from ­under the cloud of the U.S. Supreme Court’s ruling in Furman, the Lumberton, North Carolina, prosecutor continued his personal death penalty “blitz.”

The Trial Begins Selecting a jury in a death penalty case is very dif­fer­ent than in any other type of criminal case. The jury must be “death qualified.” The

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potential jurors in the McCollum and Brown case ­were each asked specifically if they favored the death penalty or not; any potential jurors against the death penalty ­were removed.35 When the jury was selected and the trial began, both the prosecutor and the defense ­lawyers declined to give opening statements. Instead, on the first day of the trial, the prosecution began with the testimony of the victim’s f­ather. The prosecutor continued with the story of the police officer who responded to the missing-­person report and who ultimately found the victim’s body. He showed the jurors graphic images of the victim’s body. When asked what it must have been like for the victim to die, the medical examiner described how “it could be said that a victim just sort of drowns in their own body fluids.”36 The defense l­awyers objected to ­these graphic details, but the judge overruled them. On day two, the prosecutor turned to the crime scene investigator from the SBI and the other forensic analysts. That did not take long, ­because none of the physical evidence or forensics matched the ­brothers.37 The fingerprints, and ­there ­were three of them, did not match the victim or ­either Brown or McCollum.38 All the blood types observed in the rape kit w ­ ere consistent with the victim. The lab analyst, who specialized in serology, or analy­sis of body fluids, added that his “findings w ­ ere negative for semen.”39 Now the prosecutor turned to the confessions, and the police officers each took the stand to describe the interrogations.

Contamination The police and prosecutors knew that the boys would proclaim their innocence and deny ever telling the police accurate information about the crime scene. Anticipating that type of defense, one of the lead interrogators testified that he himself did not know any of ­those details and therefore could not have told the facts to McCollum or Brown. When asked, for example, “[D]id you know

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anything about the Schlitz Bull Malt Liquor beer or a plastic holder for beer cans?” he responded, “No, sir. I had never been to the crime scene.”40 Another officer in the interrogation room knew every­thing about the crime scene, though: the agent from the State Bureau of Investigation. He was ­there, one of the officers stated, to “­either confirm or deny the truth as it came out,” since he was so knowledgeable about the crime scene.41 The SBI agent was also the one who wrote down McCollum’s statement, while the other officers supposedly asked the questions. Before the jury could hear about the confessions, the judge addressed the defense argument that the confession statements w ­ ere coerced, involuntary, and in violation of the Fifth Amendment of the U.S. Constitution. The judge began by noting that each of the defendants “voluntarily went to the police station” to be questioned, that each was given and signed “a written waiver of rights form,” and that “the answers of the defendant and each of them as given to the respective officers w ­ ere not incoherent and ­were sensible.” The judge emphasized: “[N]­either officer made any threat or show of vio­lence and made no act which suggested vio­lence.”42 None of this was surprising. Judges rarely rule that a jury cannot hear about a confession statement. The  U.S. Supreme Court’s test for w ­ hether someone has been coerced in violation of the right against self-­incrimination ­under the Fifth Amendment looks to the “totality of the circumstances.”43 Even in cases like this one, in which police interrogated vulnerable individuals, both young and intellectually disabled, judges rarely grant relief. ­After all, if this judge barred the confession statements, the prosecution would not have any kind of a case, and a murder might go unpunished. Once a police reads the suspect the famous Miranda

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warnings and the suspect waives their rights and speaks to the police, like almost all p ­ eople do, it is very difficult to challenge a confession in the courts, even if the confession is false.44

Confessions and the Death Penalty It was not at all unusual that this death penalty case revolved around confessions. They frequently prove quite impor­tant in death penalty cases and death-­eligible cases. Why? In murder cases ­there may be no eyewitnesses. ­After all, McCollum and Brown supposedly said that the victim was killed to prevent her from reporting the rape to the police. ­There may not be any smoking­gun forensic evidence, and this was especially so in the days before DNA tests. The only way to prove that the murderer did it may be to get a confession. Police are trained to do just that. Put differently, they interrogate to get a confession, not to test the truthfulness of the suspect’s story. While police may not conduct lengthy interrogations in routine criminal cases, they ­will leave no stone unturned in a murder investigation. For that reason, studies of death penalty cases have long found that they are dominated by confessions. A recent study of the Connecticut death penalty by law professor and economist John  J. Donohue found that 59  ­percent of the death-­eligible murders since 1973 involved confession statements made to the authorities, and in addition, 43 ­percent involved incriminating statements to third parties.45 The classic study of the Georgia death penalty led by professor David  C. Baldus found that 29 ­percent of cases in a sample of 1,066 murder and voluntary-­ manslaughter cases involved incriminating statements by the defendant or a co-­perpetrator.46 I found that half of the twenty DNA exonerations of persons who had been sentenced to death

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nationwide involved false confessions.47 Police may use particularly coercive interrogation tactics in death penalty investigations.48 In 2003, Governor George Ryan of Illinois granted clemency to all 163 ­people on death row in the state, including complete p ­ ardons for ­people on death row who had confessed and alleged that their confessions w ­ ere due to outright police torture.49 In fact, t­hose death penalty cases ­were only part of an epidemic of tortured confessions coming out of Chicago.50

Taking the Stand ­ very criminal defendant has a right to testify in his own defense, E though it ­isn’t always a good idea. Some defendants are not very sympathetic or articulate. However, both Brown and McCollum took the stand at trial. They both denied any knowledge of the detailed facts concerning the crime, from the way the victim was killed, to the location of the crime, to a plank of wood that the victim was found lying on, to the Newport cigarettes smoked at the crime scene, to the six-­pack of Bull Malt Liquor Schlitz found at the scene.51 U ­ nder a barrage of questioning by the prosecutor, Henry McCollum denied his guilt no less than 226 times.52 He said that the officers “tricked me into signing a statement,” without knowing what was in it, after ­police said that he could leave if he signed it.53 He said the police ­were “hollering, cursing, calling me a black nigger, calling me all kind of names.”54 Leon Brown testified that the officers told him, “­You’re d ­ oing to go to the gas chamber if you ­don’t start signing your name,” and “You telling me you killed the damned girl and you know it.”55 Brown said he signed e­ very page, being told all the while, “You could be ­going home if you would go ahead and get this over with.” He explained, “I ­ain’t knowing what I was ­doing . . . ​I ­couldn’t read it. I ­couldn’t understand it.”56

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Intellectual Disability ­ oday, it is unconstitutional to sentence an intellectually disabled T person to death. In 1984, ­there was no rule against it. At Brown’s trial, a psychologist from a nearby ­mental health center was called to testify. He had examined Brown for an hour and a half. He concluded that the results fell “within the mild range of ­mental retardation as far as overall intellectual findings is concerned.”57 (McCollum’s ­lawyer did not call any experts.) But the prosecutor said that Brown’s “speech was clear, coherent and easily understood,” which the psychologist agreed with.58 The psychologist concluded that Brown’s “recent memory was good,” and he could understand his rights and his situation “on a concrete level.”59 A report from the psychologist, produced specifically for the court, noted that Brown “did deny any participation in the crimes for which he is charged,” and added that his “lack of maturity prevents him from making responsible decisions and also increases his ability to be a willing participant in any type of negative be­hav­ior.”60 (The tendency to use a person’s disability against him would motivate the U.S. Supreme Court twenty years ­later to ban the death penalty for intellectually disabled persons.) The prosecutor told the jury to ignore the evidence of disability: “Now, are you ­going to excuse Brown ­because somebody . . . ​ comes over ­here from Bladen County and tells you he scored 58 on an I.Q. test when we know he scored at least five points higher than that the previous times? It’s up to you, ladies and gentlemen of the jury.”61

The Jury Verdict “Now, come on folks. They must think you w ­ ere born yesterday to swallow something like that,” said the prosecutor in response

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to the suggestion that the police told the boys what to say and coerced them into confessing. ­There was no way that “the officer just sat down and made up ­these statements,” he responded with outrage.62 In the absence of DNA evidence, murder cases often come down to a jury’s faith in the procedures and practices of the police. Prosecutors know it is an exploitable faith. McCollum’s and Brown’s defense l­ awyers had “attempted to put on trial” none other than the “hardworking police officers” who had tried to solve this murder, the prosecutor declared. ­Those officers had “no reason to tell you anything but the absolute truth.”63 The word verdict, the prosecutor went on to note, “comes from two Latin words, ‘vertis’ and ‘dictari.’ ” When you “slam the two together you get the word ‘verdict’ which just simply means to speak the truth.” In this case, “the verdict that speaks the truth in this case is that t­ hese defendants . . . ​are guilty of a cold-­blooded, malicious, vicious sex murder.”64 ­After hearing instructions on the law from the judge, the jurors retired to deliberate. They deliberated that after­noon, and the same day, at 6:32 p.m., they returned. The foreman announced that by a unan­i­mous verdict they had found Henry McCollum and Leon Brown guilty of first-­ degree murder and first-­ degree rape.65 Shortly thereafter, the jury sentenced them to death.

The Justices “From this day forward, I no longer s­hall tinker with the machinery of death,” wrote Supreme Court Justice Harry Blackmun in 1994, ten years a­ fter the ­brothers’ trial, famously announcing his newfound conclusion that the American death penalty could never be saved from arbitrariness and error. Justice Blackmun added that “­human error is inevitable,” and “our criminal justice system is less than perfect.”66

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What about “the case of the 11-­year-­old girl raped by four men and then killed by stuffing her pan­ties down her throat,” Justice Antonin Scalia raged in response, though McCollum’s case had not quite yet reached the Supreme Court. “How enviable a quiet death by lethal injection compared with that!” He accused Justice Blackmun of imposing his own personal views and politics on the Constitution.67 The North Carolina courts had reversed the ­brothers’ convictions in 1988 on appeal due to an error in the jury instructions about w ­ hether the jury had to find ­either one of them guilty, or each of them separately guilty. Guilt by association is not constitutional. Nevertheless, a­ fter new ­trials, in 1991, McCollum was again sentenced to death, and Brown was resentenced to life in prison.68 When McCollum’s case did reach the Supreme Court, in 1994, Justice Blackmun insisted that although the crime was “abhorrent,” ­there was “more to the story.” ­After all, McCollum had “an IQ between 60 and 69 and the ­mental age of a 9-­year-­old. He reads on a second-­grade level.” Justice Blackmun wrote, “This ­factor alone persuades me that the death penalty in his case is unconstitutional.”69 Yet the Supreme Court denied relief. McCollum and Brown both remained in prison.

Exonerated “Get to know Henry McCollum. He RAPED AND MURDERED AN 11 YEAR OLD CHILD,” screamed the po­liti­cal ads in North Carolina in 2010, attacking a “criminal coddler” candidate who supported a law to examine w ­ hether the death penalty was ­racially discriminatory. If that law passes, McCollum “might be moving out of jail and into your neighborhood sometime soon.”70 The law did pass. The ads may have had some effect, though, ­because the then majority leader of the general assembly and an

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attorney general candidate w ­ ere both defeated a­ fter being the subjects of the flyers.71 De­cades ­later, McCollum’s case was still a poster child case for death penalty supporters in North Carolina. In September 2014, a standing ovation shook the walls of the Robeson County courtroom, with relatives of Henry McCollum and Leon Brown weeping for joy. The judge ordered their convictions reversed. A special guest sat in the room. Judge I. Beverly Lake,  Jr., several years ­after stepping down as chief justice of the Supreme Court of North Carolina was now sitting quietly in the audience rather than on the bench. Before he retired, Judge Lake left a remarkable legacy. He spearheaded the creation of the North Carolina ­Actual Innocence Inquiry Commission in 2007, the first of its kind in the country, an in­de­pen­dent agency whose job it is to investigate potential wrongful convictions. The Center for Death Penalty Litigation, a nonprofit law firm that represents death row prisoners in North Carolina, had been pushing for years to get cigarette butts and other crime scene evidence from the McCollum case tested, but the ­lawyers had run up against a wall: police had repeatedly insisted that the evidence was all lost. The box had been sitting in storage that w ­ hole time. Unlike the Center for Death Penalty Litigation, however, the Innocence Inquiry Commission had the power of the state b ­ ehind it, and it had responded to frantic letters from McCollum’s s­ ister. The commission’s investigators tracked down the box and conducted DNA tests. The tests cleared both b ­ rothers and implicated another man, who lived a block away from the murder scene and had confessed to another rape and murder in the town of Red Springs. Indeed, the commission uncovered that the investigators initially requested that a fingerprint from the Schlitz beer cans be tested to see if it matched that other man; the test was apparently never conducted. Based on the DNA tests, the commission recommended that the court reverse both ­brothers’ convictions. The two left the

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court­house to the sound of applause and with their names fully cleared. It had taken thirty years and the direct intervention of a state-­empowered Innocence Commission for the truth to fi­nally set the ­brothers ­free.

Death Row Exonerations As terrible as their odyssey sounds, every­thing that happened in McCollum and Brown’s case is part of a familiar pattern. H ­ uman error is unavoidable, and even the most serious death penalty cases have gone terribly wrong in this country. As mentioned in Chapter 1, twenty individuals in the United States have been exonerated from death row based on DNA evidence. Over one hundred more ­people have been exonerated from death row based on other new evidence of their innocence. ­These death row exoneration cases have been high profile; ­people cannot ignore the near execution of an innocent person. Yet the system did not quickly recognize the defendants’ innocence. Almost half, like McCollum and Brown, endured multiple criminal ­trials before DNA exonerated them. Six had two ­trials, and two had three ­trials before their eventual exoneration. Death row exonerations, like in McCollum and Brown’s cases, show just how false a picture a jury can hear even in a case of life and death. In each of ­these cases, the incriminating evidence seemed power­ful at the time of trial. With the benefit of DNA tests, we now know that t­hose ­people ­were innocent. The confessions seemed corroborated by evidence that only the killer could have known. And yet, ten of the twenty exonerees who had been sentenced to death made false confessions. Four w ­ ere confessions by highly suggestible intellectually disabled persons. More than half of the death row DNA exonerations, eleven cases, involved testimony by in­for­mants, including that of jail­house in­for­mants, who

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we now know lied on the stand. Some defendants, like Nicholas Yarris, had several jail­house in­for­mants testify against them. Eight cases involved eyewitness identifications, including identification from multiple eyewitnesses, all of whom w ­ ere mistaken about what they had seen. Kirk Bloodsworth was the first to be exonerated, from Mary­land’s death row: five eyewitnesses had misidentified him. Fourteen of the cases involved forensic evidence, including a series of cases with unreliable and flawed forensics. Ten cases had microscopic hair-­comparison evidence, a type so unreliable that the FBI and crime labs in several states are conducting full audits into de­cades of testing and testimony based on such evidence. Two more had quite similar fiber comparisons. Two had still more notoriously unreliable bite-­ mark comparisons, a type of forensics that the scientific community has stated should not be used to identify individuals u ­ ntil meaningful research is done to validate it. Some involved more than one type of unreliable forensics. The crime lab analysts, who typically worked for law enforcement, often described the forensics as though they ­were “smoking gun” evidence, telltale traces pointing straight to the murderer. ­After reading each of the transcripts of their ­trials, I wanted to understand ­whether ­these DNA exonerations w ­ ere aty­pi­cal death penalty cases or not. Do all death penalty cases rely on such shaky evidence, like coerced confessions, jail­house in­for­mants, and flawed forensics? Or do most death penalty cases involve l­ittle question about guilt, but rather questions about ­whether a guilty murderer is so irredeemable that he deserves to be executed? I began looking close to my home at the death row in ­Virginia. ­Virginia has executed the third-­most individuals since the 1970s, ­after Texas and Oklahoma, and has executed more ­people than any other state, if you include its colonial history. Of the five individuals on death row in ­Virginia at the time of this writing in

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2017, two of the cases involved confessions and two involved in­for­mant testimony.72 Most of them also involved contested issues surrounding claims of intellectual disability and m ­ ental illness. ­Today, far fewer death penalty cases go to trial in ­Virginia than did in the 1980s and 1990s. Only twenty-­one death penalty ­trials occurred from 2004 through 2015. ­These recent cases did not involve bulletproof evidence. Although in five cases the defendant pleaded guilty to capital murder, followed by a trial on the issue of sentencing, some still involved questions about guilt: seven of the twenty-­one cases involved innocence defenses. Two ­others involved claims of self-­defense. One case involved a conviction for murder-­for-­hire, based on the testimony of the person who stabbed the victim, and who received a plea in exchange for cooperation.73 Fourteen of the recent ­Virginia cases involved some type of forensic evidence, from ballistics to cell phone rec­ords to modern DNA testing. Sometimes the DNA was quite definitive. In one case, for example, a “cold hit” in a DNA databank linked a man ­ ere to two murders.74 However, less precise forms of forensics w still being delivered with exaggerated certainty at recent capital ­trials. For example, in one trial, ballistics testimony was presented by a forensic analyst as follows in the closing arguments: “When I say it’s a ballistic match, the round that was found in his apartment, the ballistics that w ­ ere taken from t­ hese men matched to the exclusion of ­every other weapon on the planet.” The prosecutor added, “No ­mistake. No room for doubt.”75 This was classic overclaiming by a forensic analyst. That testimony was not scientifically accurate; at best, the analyst could say that the ballistics look similar or “match” in some way, but not that the round absolutely came from a specific gun. In a 2009 report, the National Acad­emy of Sciences explained that “with the exception of nuclear DNA analy­sis, however, no forensic method has been rigorously shown

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to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”76 Eleven of the recent ­Virginia ­trials had in­for­mants. In some cases, the defendants argued that jail­ house in­for­mants had lied; for example, a l­awyer argued that a confession statement was forged by a jail­house in­for­mant.77 Four of the ­Virginia cases had eyewitnesses. Death penalty cases also continue to heavi­ly rely on unrecorded confessions. Eight of the twenty-­one recent ­Virginia capital ­trials involved confessions or admissions to law enforcement. Six involved confessions by ­people held in police custody, and two more involved statements to the police that ­were self-­incriminating but not made in custody. Of the six cases involving custodial confession statements, only two ­were entirely recorded, and one more was partially recorded. In one case, the detective said he took a short written statement that included a series of details about the crime scene and the murders, but did not audio-­or videorecord a statement b ­ ecause “he was not comfortable ­doing that.”78 The failure to rec­ord ­those interrogations may have resulted in more prolonged litigation about guilt. Despite the fact that high-­profile false confessions have come to light in DNA exonerations, most agencies in ­Virginia still typically do not videotape interrogations.79

Death Charged “This was the worst experience of my professional life. It still haunts me,” recalled the former first assistant district attorney for McLennan County, Texas. He was recalling the case of Calvin Washington, tried for capital murder in Waco, Texas, in 1987, and exonerated by DNA tests fourteen years ­later. The prosecutor l­ ater commented that the “only part” of the “terrible” trial that he does “not still regret” was the fact that the jury was divided in Wash-

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ington’s case, resulting in a life sentence for him and a codefendant. “Imagine how much worse this tragedy could have been” if they had been “sentenced to death or, God forbid, put to death before their innocence could be proven.”80 Douglas Warney was the first to be charged ­under New York’s new death penalty statute in 1996, and he l­ater recalled that he was “lucky,” in one way, since he avoided the death penalty and instead received twenty-­five years to life. Warney served six years in prison before DNA testing exonerated him for a murder he did not commit. He was mentally ill and had falsely confessed, like so many of the exonerees in murder cases, and the entire case revolved around his supposedly detailed confession. The detective was emphatic that he did not “suggest any answers” when speaking to Warner. The detective said Warner told him what the murder weapon was, what the victim was wearing, and what the victim was cooking for dinner. At trial, the prosecutor insisted, “[W]ho could possibly know t­hese ­things if you h ­ adn’t been inside that ­house, inside the kitchen?”81 Untold numbers of innocent p ­ eople, facing the death penalty, do not get sentenced to death, but still serve long sentences for murders they did not commit. My research has uncovered quite a few ­people who received harsh results in the shadow of the death penalty. In addition to the twenty DNA exonerees who w ­ ere sentenced to death, another sixteen ­were charged with the death penalty but received some other sentence at trial. I have also found at least twelve more DNA exonerees who pleaded guilty rather than face the death penalty at a trial. Like the death row exonerees, the exonerees who escaped the death penalty had mostly falsely confessed. Sixteen of the twenty-­eight had falsely confessed, and sixteen had in­for­mants testify in their cases. Many came within a hair of a death sentence. Larry Ruffin, for example, had a hung jury at trial, which is the only reason he was not sentenced to

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death for a murder he did not commit (along with two other innocent p ­ eople who ­were also convicted). His exoneration came too late. When DNA tests cleared him thirty years l­ater, he had already died in prison eight years before.82 We may never know how many innocent ­people ­were informally threatened with the death penalty and pressured into false confessions or guilty pleas. Some ­people, like DNA exoneree Chris Ochoa, falsely confessed b ­ ecause detectives threatened them with the death penalty during the interrogation. Ochoa was interrogated for twelve hours and told that he had a choice between death by lethal injection and falsely confessing and implicating his best friend. The detectives showed him photos of death row. They showed him where on his arm the needle with the execution drugs would be inserted. They told him that he would be “fresh meat” for the other prisoners. They also started and stopped the tape recorder, so that they could tell Ochoa details about the crime with the recording off. Ochoa’s friend Richard Danziger was also wrongly convicted; he was beaten in prison and suffered brain damage. All the while, the culprit remained at large; eventually he wrote letters to Texas officials, including then governor George W. Bush, saying that two innocent men ­were in prison for a murder he’d committed. Only ­after twelve years ­were the DNA tests fi­ nally conducted and Ochoa and Danziger cleared.83 ­Others similarly pleaded guilty b ­ ecause their l­awyers convinced them not to risk the death penalty at trial. Still other innocent ­people narrowly avoided the death penalty ­because the crimes occurred when the death penalty was not the law in a given state. Paul Terry and Michael Evans, in Illinois, ­were sentenced to hundreds of years in prison for rape and murder, but since the murder occurred in 1976 and not 1977, when Illinois brought back the death penalty, they could not receive it; they ­were exonerated years ­later by DNA tests. Former New York gov-

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ernor Mario Cuomo urged the residents of his state to rethink the death penalty in light of the DNA exonerations of three men, John Kogut, Dennis Halstead, and John Restivo, who served eigh­teen years in prison for a murder they did not commit: “If New York had the death penalty in the 1980s,” each of them “would most likely have been executed before DNA evidence in their case proved their innocence.”84

An Epidemic of Death Row Exonerations “He’s a grown man t­oday, he was just a boy back then,” said Ricky Jackson upon his release from prison in November 2014. “I ­don’t hate him.” Jackson spent thirty-­nine years b ­ ehind bars, according to the National Registry of Exonerations. Jackson was speaking of the twelve-­year-­old who identified him and two ­others as murderers, and whose testimony in 1975 sent the three to Ohio’s death row. Years ­later, the eyewitness admitted that his testimony was “all lies.” ­There was no other evidence in the case: no physical evidence and no other witnesses. This exoneration highlights just how malleable eyewitness testimony can be, and how we fail to get the key evidence right even in the most serious death penalty cases.85 In fall of 2014, the National Acad­emy of Sciences published an impor­tant report, Identifying the Culprit: Assessing Eyewitness Identification.86 The report evaluates de­ cades of research on eyewitness memory and details scientific procedures that can help to prevent error. The recommended procedures, like conducting identifications “blind” or “blinded” so that the person ­ running the procedure cannot inadvertently signal the answer, ­were not used in Jackson’s case—­far from it. The twelve-­year-­old, Eddie Vernon, told police he saw the murder of a storeowner by three ­people: Jackson and two b ­ rothers, Ronnie and Wiley Bridgeman. Vernon was unable to identify the

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suspects from photos. That alone should have been a red flag. ­Later, a detective showed Vernon a lineup of seven men, one of whom was Jackson. Vernon could not identify anyone. So he was “taken out of the room,” according to an appeals court, where he “told the policemen that he had not said anything at first ­because he had been afraid.” Now he identified Jackson. But he did not change his mind on his own. Police apparently shouted and threatened to charge him with perjury if he did not identify Jackson. When Jackson was exonerated, Vernon told the judge, “Do you ­really think as a twelve-­year old I could stand up to ­those detectives screaming in my face?” Obviously, the procedures described in Jackson’s case w ­ ere brutal, and nothing resembling scientific practices. Why ­didn’t judges release Jackson years before? The National Acad­emy of Sciences report highlighted how judges should be far more sensitive to research on eyewitness memory. Back when Jackson was convicted, the judges seemed unaware that there was anything wrong with a twelve-­ ­ year-­ old identifying three murder suspects when previously he could not. The Supreme Court of Ohio in 1978 said the evidence against Jackson “was not so slight or of so ­little probative value” that a jury could not convict him. Why? ­Because ­there was an eyewitness. Jackson’s ­lawyer was appointed only four days before his death penalty trial. His ­lawyer complained that he had “virtually no time . . . ​to do in­de­pen­dent investigation, talk to the prosecution witness, Edward Vernon, or determine a trial strategy.” Yet the judge saw no prob­lem, ­because, ­after all, this was a case where “the evidence was highly credible.” The National Acad­emy of Sciences report highlights the need for pretrial investigation of eyewitness evidence, careful inquiry by judges, and allowing expert witnesses to explain the science to the jury. Yet to this day that does not occur, except in a handful of states, like Mas­sa­chu­setts, New Jersey, and

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Oregon, that have improved ­handling of eyewitness evidence in the courtroom.87 Still more troubling, Jackson and the Bridgeman ­brothers w ­ ere just three of six death row exonerations nationally in 2014. ­There ­were six more death row exonerations in 2015. Death row exonerations are inevitable. Although DNA exonerations are particularly high profile, most death row exonerations, like Jackson’s, do not involve DNA. In addition to the twenty DNA death penalty exonerees, from 1989 to pres­ent t­here have been over one hundred ­others exonerated from death row based on other types of evidence. The National Registry of Exonerations and the Death Penalty Information Center detail each of t­hose cases. Eight ­percent of known exonerations occur in cases in which defendants ­were sentenced to death. The cases are somewhat confession heavy, and about 20 ­percent included false confessions. A larger number, 28 ­percent, involved false or misleading forensic evidence. Still more, 70 ­percent, involved some form of witness perjury or false accusation, and 78 ­percent involved “official misconduct.” In general, hom­i­cide exonerations include 75 ­percent of all the false confessions in known exoneration cases.88 Are death penalty cases more prone to grave errors? Death penalty cases are more closely scrutinized than any other type of criminal case, so it may be that we simply learn about wrongful convictions in death penalty cases. ­People on death row remain ­there for de­cades. They have ­every incentive to protest their innocence, and they usually have ­lawyers working for them, even during habeas corpus proceedings, when t­ here is no constitutional right to a ­lawyer. We know that ­there is a “uniquely high rate of exoneration” in death penalty cases, and as law professors Sam Gross and Barbara O’Brien have found, t­here is about a 4 ­percent rate of ex­ ere six exoneration in death penalty cases.89 In the 1990s t­here w 90 onerations a year from death row. The numbers have gone down

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since, most likely b ­ ecause ­there are fewer death sentences ­these days, although the numbers have spiked again in recent years. Added to the innocence effect, ­there may be an “error effect”: mounting awareness that death cases languish in the courts for years, on the road t­oward eventual reversal for serious errors on appeal and postconviction. ­These exoneration cases are just a small portion of death penalty cases reversed for grave errors. As I describe in Chapter 8, 40 ­percent of death sentences never result in executions b ­ ecause cases are reversed on appeal or postconviction for a host of reasons, including in­effec­tive assistance of counsel, prosecutorial misconduct, flawed instructions from judges, and a litany of other errors. Some have wondered ­whether one reason the death penalty is on the decline is wrongful convictions. Juries may be increasingly aware that an innocent person can be sentenced to death, and that many have been sentenced to death. I have studied w ­ hether any decline in death sentences is statistically correlated with the states that have the most death row exonerations. Instead, what I have found is that the more death sentences a state has, the more exonerations it has. Exonerations do not seem to be driving the decline in death sentences. Far more troubling, I am instead seeing that exonerations are an unavoidable function of our death penalty system. Error is inevitable, and it occurs at a very high rate.

A Bulletproof Death Penalty? One state deci­ded to try to change its death penalty statute to avoid the inherent risks of wrongful executions. It was an impossible proj­ect. Chastened by Kirk Bloodsworth’s death row exoneration, in 2009 Mary­land lawmakers limited the death penalty to just cases where they have DNA or other biological evidence, a videotape of the crime, or a videotaped recording of a confession

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by the murderer. As one legislator who supported the death penalty and the new law explained at the time, “[W]e need to lay to rest the concerns and fears that we are putting to death innocent ­people.”91 ­Those changes, though, ­were no bulletproof solution. ­After all, “other biological” evidence might include unreliable evidence like hair-­comparison evidence or bite marks. And what if a mentally ill individual or intellectually disabled individual confesses on videotape, but falsely? Realizing that what it had tried to do was not ­going to work, and that the death penalty simply cannot be made bulletproof, in 2013 Mary­land abolished the death penalty. Bloodsworth spoke out constantly in f­ avor of abolition, telling his story to whoever would listen. One Mary­land legislator recalled meeting with Bloodsworth and changing her mind completely about the death penalty: “It sent shivers down my spine. I thought, I c­ an’t take the chance that I might send an innocent man to death.”92 Wrongful convictions of the innocent are inevitable and unavoidable in any criminal justice system, even in our system, with all the extra procedural protections that death penalty cases receive.

Preventing Wrongful Convictions Justice Harry Blackmun put it well, years before DNA tests exonerated Henry McCollum: we cannot impose final punishments when “­human error is inevitable” and “our criminal justice system is less than perfect.”93 The death row exonerations that have come since have permanently changed the death penalty debate in the courts as well as the state­houses. More judges are expressing deep reservations about the death penalty due to the evidence from ­these wrongful conviction cases. Justice John Paul Stevens announced his opposition to the death penalty in 2008, citing evidence from DNA exonerations: “­Whether or not any innocent

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defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.”94 Federal district judge Jed Rakoff struck down the federal death penalty, stating, “We now know, in a way almost unthinkable even a de­cade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent ­people are ­convicted of capital crimes with some frequency.” His ruling, however, was ­later reversed on appeal.95 More recently, in 2015 Justice Stephen Breyer dissented in a death penalty case and was joined by Justice Ruth Bader Ginsburg. He asked whether the current practice of the death penalty has become categorically unconstitutional, citing evidence from exoneration cases. He singled out the case of Henry McCollum, and noted that although ­there are endemic delays in death penalty cases, it took twenty years ­after the Supreme Court denied relief to McCollum, with only one justice dissenting, for the new DNA evidence to surface and to prove his innocence.96 The only way to avoid inevitable errors is to invest in getting criminal investigations right, and not just in death penalty cases, but in all cases relying on confessions, eyewitnesses, forensics, in­for­mants, and the rest. Our criminal justice system is less than perfect, but even without the death penalty the same challenges remain. We must take mea­sures to protect against wrongful convictions. What mea­sures are ­those? Coercive interrogation techniques should not be allowed, and confessions must be videotaped in their entirety. Judges should carefully review the reliability of all interrogation evidence. Police should be trained and required to take special care when questioning juveniles or disabled or other vulnerable individuals. Testimony from jail­house in­for­mants should be restricted, and any testimony from in­for­mants or other incentivized witnesses should receive careful screening for reliability. Eyewitness evidence

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should be used only when eyewitnesses are tested using reliable procedures, most importantly, blind lineups where the officer administering the lineup does not know who the suspect is. The 2014 National Acad­emy of Sciences report described reforms and recommendations to safeguard eyewitness evidence, but many police still use outdated procedures. Forensics must be carefully collected by trained analysts and then analyzed by impartial, in­ de­pen­dent scientists. In a groundbreaking 2009 report, the National Acad­emy of Sciences laid out recommendations to improve the use of forensics, but many of them have not yet been widely ­adopted. Most criminal cases, even murders, do not have DNA to test. Far more research needs to be done to provide a sound scientific foundation for fingerprint and ballistics and other types of non-­DNA forensic comparisons. We also need to know much more about the error rates for all forensic methods and how proficient par­tic­u­lar analysts are when they do their work. Each of ­these types of evidence can be more accurately collected, but change has been slow in coming; when police and crime labs mass pro­cess vast numbers of cases, quality suffers when quantity is overwhelming. Providing broad, open-­file discovery to the defense can also help to ensure that the truth is not concealed in criminal cases, including plea-­bargained cases. Fortunately, more jurisdictions, including the states of North Carolina and Texas, are adopting ­these improvements, often in response to death row exonerations.

­A fter the Exoneration “The only way I made it through death row was the power of God,” Henry McCollum said a­ fter his release. ­After they w ­ ere pardoned, the b ­ rothers received $750,000 each for the thirty-­one years they spent in prison. Their l­awyer asked, “How can you put

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a price on your s­ ister’s wedding, or seeing your niece or nephew born, being with your m ­ other when she passes? ­These are ­things that are priceless.” McCollum said, “I ­don’t have no hate in my heart ­toward them but I ­don’t like what they did to me and my ­brother 31 years ago, destroyed my life. We ­could’ve been somebody.”97 Pardoning McCollum and Brown and using the power of the state to express mercy to them and provide them with some mea­sure of compensation—­these ­were not radical acts, and they ­were the least the governor and the state could do. A radical act would have been to express mercy ­toward the ­brothers three de­ cades before, when they w ­ ere sentenced to death and no DNA tests ­were available, or to express mercy t­oward the man whom the DNA matched, thirty years l­ater, in the McCollum case. We are all Henry McCollum. It is harder to imagine putting ourselves in the shoes of the guilty murderer. ­Today, mercy for the ­actual murderers is exactly what our judges and jurors, even our prosecutors and governors, are carefully considering, and more and more they are declining to impose the death penalty.

3 MERCY VS. JUSTICE

“It’s kind of like eating an elephant,” said a juror. “You take one bite at a time.” The defense ­lawyer had asked if the case was “just too big.” ­After all, the defendant faced 165 charges. The jurors would have to work through the case step by step.1 This was the trial of twenty-­seven-­year-­old James Holmes, who was accused of killing twelve moviegoers and injuring scores of o ­ thers in the notorious 2012 Aurora, Colorado, mass shooting. Holmes had entered the theater through a door next to the movie screen wearing a helmet, gas mask, and protective gear. He exploded tear gas in the crowd before opening fire with an AR-15 r­ifle, a shotgun, and a handgun. Holmes admitted he did it but pleaded insanity, with his ­lawyers arguing that he “could not control his thoughts” or “his actions.” On July 17, 2015, ­after weeks of testimony, with over 200 witnesses, the l­awyers on both sides rested their cases. The jury deliberated for over twelve hours and then reached a verdict. Survivors and f­amily members lined the courtroom waiting to hear the verdicts related to their loved ones, many with tissue boxes ready under­neath their chairs. Holmes stood still next to his ­lawyers with his hands in his pockets. The jury found him guilty of twenty-­four counts of murder and 140 counts of attempted murder for the seventy p ­ eople wounded. Many in the courtroom let out sighs of relief. One victim’s m ­ other commented, “We are

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very happy that this animal, that this monster, w ­ ill never see the light of day.”2 The guilt verdict was just the beginning, though, since a death penalty trial is r­ eally two t­rials. ­After the jury finds the defendant guilty of murder, the second trial begins. In the second trial, jurors wrestle with the prosecution’s claim for justice and the defense’s appeal for mercy. The ­mental health of the convicted defendant often brings into sharp relief the counterclaims of justice and mercy, and mercy increasingly wins out. This trend speaks not only to the decline in death sentences in Amer­i­ca, but also to the broader need for criminal justice reform. So many ­people who are prosecuted have serious ­mental health prob­lems, but outside of a death penalty case, they lack the same opportunity to make a case for mercy. The jury would have to deliberate not just one but three more times. They would have to decide, first, w ­ hether the prosecutor had shown that t­ here was something aggravated about the murder, making it eligible for the death penalty; second, w ­ hether any mitigating circumstances outweighed t­hose f­actors; and third, ­whether to sentence Holmes to death. At the sentencing phase of the Aurora trial, the prosecutor told the jury, “You are experts in the facts. . . . ​All the t­ hings you know that he did, considered, and planned for this murder. Could that now justify a life sentence?”3 During the sentencing phase, prosecutors focus on evidence like the seriousness of the crime and the defendant’s prior criminal rec­ord, or what is called “aggravating” evidence. This mass murder was clearly “aggravated.” In response, the defense ­lawyers pres­ent evidence that might convince the jury to choose life, called “mitigating” evidence, which might include the defendant’s upbringing, childhood abuse, schooling, disability, ­mental illness, brain trauma, and addiction to alcohol or drugs. On the sixty-­fourth day of the trial, the jurors sent a note stating that they had reached a decision. Every­one stood impassively as the

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jurors returned. Two courtroom officers watched with arms crossed. The judge asked every­one to be seated and told the foreperson to provide the verdict forms to the bailiff. The judge flipped through each of the forms in the large stack as the tense courtroom waited to hear what the jury had deci­ded. “­Will the defendant please stand,” the judge said. He read, “We the jury do not have a unan­ i­mous final sentencing verdict . . . ​and we the jury understand that as a result the court ­will impose a sentence of life without parole.” The jurors chose a life without parole sentence. Why? The reasons could be traced back to the very beginning of the case, before the trial even officially began. Two top public defenders took on the case. ­These ­were not local court-­appointed ­lawyers. ­These w ­ ere both chief trial deputies, from Colorado’s state public defender office, which ­handles all death penalty cases in the state. The district attorney led the trial team for the prosecution. The l­awyers used sophisticated methods, first developed in Colorado, to screen each juror before the trial began. Jury se­lection took place over four months—­far longer than the trial itself lasted—­and the painstaking pro­cess may have been the longest in U.S. history. The l­awyers had to winnow down a list of 9,000 prospective jurors to just twelve with twelve alternates. The judge wanted to start broadly, having denied the defense motion to change the venue, so the ­lawyers had to search for jurors not biased by having watched or read extensive media coverage of one of the worst mass shootings in Colorado history.

Selecting the Jury “If any of you could not or would not apply your reasoned moral judgment in determining the appropriate sentence, please raise your hand,” the judge said in the Holmes case. None of the prospective jurors responded. “If any of you could not or would not

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base the verdict on a profoundly moral evaluation of the defendant’s character and crime, please raise your hand.” ­There was no response. “If your views on the death penalty would prevent or substantially impair the per­for­mance of your duties as a juror, please raise your hand.” None raised their hand.4 Sitting on a jury is a remarkable opportunity and a public ser­ vice, but serving in a death penalty case can be incredibly challenging and even quite traumatic. A Kansas judge recalled a capital trial in which jurors ­were “exposed to horrific testimony and photo­graphs,” and in which he “saw jurors become nauseous and then emotional to the point of tears.”5 It is never easy to be a lone holdout juror in a criminal case, but the stakes are obviously much higher in a death penalty case. In the jury room, jurors have reported that they felt despair ­after being bullied into imposing a death sentence they did not feel personally comfortable with. Scholars who have extensively interviewed a­ctual jurors who served in death penalty cases, as part of an ongoing set of studies called the Capital Jury Proj­ect, found case ­after case in which jurors reported that they mistakenly thought the death penalty was mandatory, or they reported how the foreman or ­others refused to let them vote for life and pressured them into joining the vote for death.6 The need for jurors who are “death qualified” means their se­lection is also more complicated. Many Americans strongly support the death penalty, but more have their doubts or even outright oppose it.7 If you have substantial doubts about the death penalty, the Supreme Court has long ruled that the prosecution can automatically exclude you from the jury. In the case of Witherspoon v. Illinois, a hanging judge picked a hanging jury. The Illinois trial judge had kicked out ­people with “conscientious or religious scruples” about the death penalty, saying, “Let’s get ­these conscientious objectors out of the way, without wasting any

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time on them.”8 ­People who support the death penalty may also be more likely to convict defendants, but the Supreme Court has rejected t­hose concerns out of hand.9 In practice, this means large numbers of jurors are excluded, particularly minority and female jurors. As Justice Thurgood Marshall has pointed out, in practice, judges have also “frequently excluded jurors,” even if they do not say they have “absolute opposition to capital punishment.”10 The defense can also automatically exclude jurors, too, but only if they believe that the person admits she could never consider a life sentence for capital murder.11 Ask yourself where you might fall on a spectrum from strong supporter to outright opponent of capital punishment. If you ­were asked w ­ hether the death penalty is a good idea, you might naturally say yes or no or maybe, b ­ ecause “it depends on the case.” You would want to know what kind of murder had been committed and what kind of murderer was facing the death penalty. From the beginning, the defense ­lawyers at the Aurora trial handled the delicate issue of death qualification by asking the potential jurors if they could give evidence the “weight of life.” They used a technique drawn from something called the “Colorado Method.” If you ­were in that jury pool, you would be told that the death penalty is not pos­si­ble if the person was acting in self-­defense. You would be asked about a serious and intentional murder. You would be told that even in that kind of murder, t­ here is still a choice to be made regarding w ­ hether the person deserves death. The l­awyer might ask you, “Could you consider being merciful to someone you believe had killed without justification or excuse?” That is not a trick question. In s­ imple terms, it gets at ­whether you understand why a death penalty case is special. The judge or ­lawyer might ask you, “Do you think mercy is something that a person earns, or is it something that one bestows on another?”

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Ask yourself where you might fall on a seven-­point scale. A “one” w ­ ill never vote for the death penalty and is vocally opposed to it. If you are a “one” you ­will be excluded for cause by the judge. A two or a three believes in the death penalty but does not have strong reasons to be for it, and, depending on the person, can feel compassion for a criminal. If you are a four or a five, you comfortably support the death penalty and think it is a “good t­ hing” to have. You are still open to considering “both sides” in a case. You are open to hearing arguments that a par­tic­ul­ar murderer might not deserve the ultimate punishment, and you are less prone to being bullied by the most ardent death penalty supporters on the jury. If you are a six, you are a natu­ral “head nodder” whenever the prosecutor talks. You think that the main prob­lem with the death penalty is that we do not impose it often enough. If you are a seven, you w ­ ill automatically sentence any convicted murderer to death, no ­matter what. You ­will be excluded by the judge just like a “one.”12 This method evolved a de­cade ago through trial and error as David Wymore, a longtime public defender in Colorado, deci­ded he needed a way to deal with a terrible prob­lem: that some jurors mistakenly think they are required to impose the death penalty if the murderer is found guilty. Wymore worked on dozens of death penalty cases. His colleagues called him the “epitome of no stone unturned,” and he passed on his “dogged determination” to a “generation of public defenders.”13 Wymore believed that t­here should be more of a science to jury se­lection in death penalty cases. The Colorado Method that Wymore and his colleagues developed, and which is now a key ele­ment in death penalty training across the country, reminds jurors what should be obvious but too often had not been in the past: that ­every juror has a vote and must think for herself about w ­ hether to impose the death penalty or exercise mercy. They must re­spect each other’s votes and cannot

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force ­others to vote for death. While t­here can be disputes about the degree to which l­awyers can ask jurors about hy­po­thet­i­cal murder cases, t­hese statements are so obvious that judges now themselves use the language. This is what the judge did at length in the Holmes case to take pains to ensure that the jurors understood their job.

The Aurora Trial “Can words be spoken to you in a passionate way that would justify a life sentence?” The judge sat still. The defense listened respectfully. The jurors selected had sat through a harrowing trial for almost three months. They had seen graphic images portraying death, pain, and suffering that none should have to endure. They had to make the choice the judge set out for them. The prosecutor began his closing arguments at the final penalty phase by anticipating that the defense would call for mercy. “If t­ here ­were tears, if ­there ­were pleading,” would that make it appropriate? “Could someone argue to you mercy, mercy, that mercy is about the giver, not the receiver?”14 With anger and outrage edging into his voice, the prosecutor then asked, “Could they play upon your conscience and your guilt to make a life sentence appropriate for what he has done?” The “time for emotion, that time for tears, that time for passion, that was yesterday.” “This is about justice,” he continued, now facing the jury; it was time for justice and not mercy. The courtroom was other­wise still. The prosecutor told the jurors not to think of “revenge” since this is “not the Arapahoe County eye for an eye center,” but a “justice center.” Speaking in slow and mea­sured tones, the prosecutor highlighted how Holmes himself had showed no mercy. The theater

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shooting was carefully planned, with use of tear gas to cause audience confusion, special purchases of firearms and steel “penetrator” ammunition, and plotting out where the exits ­were and which ­were locked. Holmes “picked the time, place and manner of their deaths.” Holmes booby-­trapped his apartment, so when police l­ater searched his apartment, they had to remove more than twenty homemade explosives. Walking closer to the jury, the prosecutor spoke about the victims. Much of the prosecutor’s closing argument was spent showing the jury photos, again, of the shooting scene and replaying the 911 call. He said that they w ­ ere all now “experts in a way in ­mental health.” The prosecutor called Holmes “[s]ane, sane, sane.” Stepping back from the jurors, he emphasized how Holmes “made sure . . . ​that one person and one person alone would be guaranteed to survive, and that was him.” This was a moral decision, but one about “moral culpability” for the crimes. “And for James Eagan Holmes, justice is death. Death.” In summer 2012, James Holmes abruptly changed his hair to “an orangey-­red. . . . ​It was kind of wild,” recalled his landlord. Something changed. Holmes dropped out of school, quit his work, applied for unemployment, and “sought counseling from the student ­mental health center.” When police searched Holmes’s apartment, they found medi­cation for treating depression, panic disorders, and anxiety. During the trial, James’s parents sat the entire time and watched without expression, but privately they prayed, “Please ­don’t commit suicide.”15 “The mea­sure of our soul is in how we treat p ­ eople who are sick and who are damaged,” the defense attorney pleaded at sentencing, when it was her turn to respond. She was speaking calmly and slowly, much like the prosecutor had, and she stood, like the prosecutor had, right in front of the jury box, facing the jurors directly. The courtroom was again completely quiet. With ­mental health evidence at the center of the case, the ­lawyer asked, “How

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many doctors from how far across the United States in how many dif­fer­ent specialties do we need to bring you to convince you that he is seriously mentally ill?” The defense had presented testimony from psychiatrists and neuropsychiatrists, explaining that Holmes was not faking a condition but was seriously psychotic and unable to understand real­ity. In a death penalty case, the defense may have to spend a year or more extensively researching their client. A mentally ill or disabled client may be unable to speak about their own background, but the defense must nevertheless go back several generations and speak to relatives, neighbors who may have overheard abuse, teachers, and friends of the ­family. Social ser­vices rec­ords and school rec­ords and medical rec­ords must be combed through. Experts must be retained to evaluate the defendant for m ­ ental health and disability issues. Holmes’s l­awyers emphasized, “You ­can’t blame someone for getting schizo­phre­nia.” “If you would not wish schizo­phre­nia on your worst ­enemy, then what logic dictates that [Holmes] should receive execution for it?” They emphasized, “[T]he death of a seriously mentally ill man is not justice no ­matter how tragic the case is.” They added that he was mentally ill, but not “hateful, and evil, and selfish.” He had never broken the law before, aside from traffic tickets, and he had a good upbringing. Then, when he was twenty-­five, “out of the blue, the ­mental illness struck,” and all of a sudden “his hair is red” and he is “planning a mission.” They argued, “It is easier to ask you to kill a monster than it is to kill a sick ­human being.” It came down to a question of mercy. “You just answer to you.” The defense l­awyer returned to the themes developed from the very beginning, during the jury se­lection. She said, slowly and with steady emotion, “[Y]ou w ­ ere chosen for this case” ­because “you said that you would give meaningful consideration to the mitigation, especially m ­ ental health

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mitigation.” So now, the defense ­lawyer said, looking right at each of the jurors, the “focus becomes about you.” She told them this was one of the most impor­tant decisions they would ever make, and they would have to live with it for the rest of their lives. Nor can they “come back ­later and say I’ve given this more thought and I’ve changed my mind.” The jurors had to ask, “What do you do? What is in your heart, and your soul, and your mind?” The defense noted that each of the jurors must understand each other’s personal decisions, and if a juror chooses life, the juror must insist that the foreman and the o ­ thers re­spect that decision. The judge had said that the jurors could consider mercy. The defense l­awyer dwelled on mercy, for a person who was “sick and damaged,” not b ­ ecause “he deserves it” but ­because it is “bestowed.” The prosecutor was exactly right about what the defense would argue. “Mercy says more about you than it says about him. What you do h ­ ere says more about you, if you choose to exercise mercy, not about him.” The defense l­awyer emphasized in conclusion that “[j]ustice without mercy is raw vengeance. Mercy is what makes us civilized,” and “this is a moral decision.” The jury se­lection was crucial u ­ ntil the very end. Initially, two jurors w ­ ere “on the fence,” and one juror would not budge in opposition to a death sentence, citing Holmes’s ­mental illness. Three jurors ultimately voted for life. One of them l­ater explained to a journalist that she was able to empathize even with a mass murderer: “I wanted to be the kind of juror I would want if it was me.” She said she still broke down and cried when she thought about the victims, and that it was so hard to walk to the jury box to deliver the verdict that it was “like a car was parked” on her chest, but given Holmes’ m ­ ental illness, death “­wasn’t an option.”16 The cost of the trial, by the way, was in the millions. The prosecutors said they spent about $1.4 million, not including the salaries of the ­lawyers and staff who worked on the case. The sheriff spent

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$1.6 million on detaining Holmes, transporting him back and forth to court, and h ­ andling courtroom security during the lengthy trial. The total cost may have been over $7 million, not including the costs of the defense.17 Of course, the prosecutors had the resources of police departments and crime labs and grant funding to h ­ andle complex cases. Public defenders lack all that manpower and funding. Yet through a sustained appeal to mercy, in an intensely lengthy and complex case, the defense achieved a partial victory. Meanwhile, t­ here have been only two death sentences in Colorado in the past de­cade. The Colorado Method may be part of the reason why, and it works ­because it conveys why each juror must be capable of making an individual moral decision. The prosecutors could have avoided a trial. Early on, the defense said that Holmes would accept a plea for life without parole. One of the victim’s ­brothers tweeted ­after the trial, “This trial should have never happened. Defense offered a plea to life in prison, but po­liti­cal ambition trumped reason.”18 Now perhaps the prosecutors did not sufficiently appreciate how the m ­ ental health evidence would affect jurors. But in a state with the death penalty, it is not hard to understand why the prosecutor would seek the death penalty for such a horrifying murder. The m ­ other of one of the victims, responding to the verdict, asked, “Why do you even have a death penalty if ­you’re never willing to use it?” Or putting it differently, if t­ here are genuine questions for jurors in even the most serious mass shootings imaginable, then one won­ders what if anything the death penalty should be used for.

Wake County, North Carolina The jury deliberated for three days before reaching a decision in the case of Samuel Cooper, on trial in 2010 in Wake County, North Carolina, for killing five ­people in a series of robberies. It

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was nowhere near as complex as the Aurora case, but it was the first trial in North Carolina history in which a person was tried for so many hom­i­cides all at the same time. Cooper had confessed to all five murders. The jury had already deci­ded that the defendant did it. Yet in the Cooper case, like in the Aurora, Colorado, case, ­after a sentencing trial, the jury chose a sentence of life without parole. The prosecutor apologized to the victims for the result, saying, “I just want to tell them I’m sorry.”19 The defense had put on extensive mitigation evidence. They had described how Cooper had suffered years of “sadistic and ritualized” abuse by his f­ather since the age of three months and through his teens. When Cooper was sixteen, the police and social ser­vices told him to “be a man” and try to do his best to protect the rest of his ­family from his ­father’s abuse: “We ­aren’t g­ oing to help you Sammy, but you have to protect every­one ­else in your ­family.” The defense argued that he stopped crying or feeling pain by the time he was a teenager; the abuse “literally broke his mind,” making him unable to emotionally register vio­lence. A forensic psychiatrist described the effects of posttraumatic stress disorder on Cooper.20 The defense said, “This is not the abuse excuse,” and it is “not an excuse at all.” But “it is a story about what happens to a child who grows up knowing nothing from his parents but fear and vio­lence.” They said, “Mom taught him fear. Dad taught him vio­lence.” The prosecutor responded, “Was it bad? Yes. I’m not trying to say it ­wasn’t.” But, “[T]o the extent they want to sell it to you, I’d ask you to be very cautious about that.”21 The defense countered that the very inhumanity of the murders showed why life was the right option. “In choosing life, you in no way diminish the humanity of t­hese five very well-­loved men. In choosing compassion, you do not forgive Sammy for t­ hese sorrowful deaths.” The jurors chose compassion.

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The Boston Marathon Trial “This was an extraordinary case. ­Those of us who sat through it from beginning to end saw and heard t­ hings we w ­ ill never forget, both good and bad,” said the federal district judge in Boston. The judge was sentencing Dzhokhar Tsarnaev in the Boston Marathon bombing trial in summer 2015. He explained, “One of Shakespeare’s characters observes: ‘The evil that men do lives a­fter them. The good is oft interred with their bones.’ So it ­will be for Dzhokhar Tsarnaev.” He added, “Whenever your name is mentioned, what ­will be remembered is the evil you have done.” The judge then asked Mr. Tsarnaev to stand, and he imposed the sentence of death that the jury had reached in its verdict.22 The death sentences that jurors do still impose are telling. Two years before the jury reached that verdict, in April 2013, while the Boston Marathon was well underway, two explosions occurred in the final stretch of the race, next to the metal barriers where spectators w ­ ere watching the runners cross the finish line. The explosions killed three p ­ eople and injured over 200 more. Tsarnaev was arrested ­after a carjacking followed by an intensive firefight with law enforcement in which his older b ­ rother was killed. He was sentenced to death. The jury did not choose mercy. Jurors absolutely still impose death sentences in ­today’s Amer­i­ca. However, the jury imposed the death penalty only a­ fter a well-­prosecuted and well-­ defended trial. The prosecutors argued that Tsarnaev intentionally set out to kill innocent ­people as an act of terror. The defense ­lawyers argued that he was a “good kid” led to fanat­ic­ ism by his older b ­ rother. The case was brought in federal court, and federal statutes entitle a defendant to the appointment of one or more attorneys from pretrial proceedings through any trial and appeals.23 The team of defense ­lawyers called forty-­four witnesses over eight days of testimony, including f­amily members, teachers,

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coaches, friends, and S­ ister Helen Prejean, portrayed in the movie Dead Man Walking, who said she had visited Tsarnaev and that he felt remorse. However, the prosecutors also called large numbers of witnesses, including victims and relatives of the three ­people killed and 260 injured at the Marathon, as well as relatives of the police officer whom the ­brothers had killed l­ater. Nor was ­there any evidence of ­mental illness or disability. Using jury verdict forms, the jurors tallied each of their “votes” on which mitigating f­actors they found relevant. They did not have to agree on each of the ­factors. We know something about what the jurors w ­ ere thinking based on t­ hese forms. All the jurors agreed that Tsarnaev was only nineteen years old and had no history of violent be­hav­ior. He had f­amily members, teachers, and friends who cared for him, and he had a f­ ather disabled by m ­ ental illness and brain damage. The jurors mostly did not believe that Tsarnaev had expressed “sorrow or remorse,” or that he was unlikely to commit vio­lence again even while serving a life sentence in federal custody. Nor did most of them believe that he had acted ­under the influence of his older ­brother.24 It was only a­ fter the jury reached its verdict, when Tsarnaev was standing before the judge only, that he spoke about what he had done: “I am sorry for the lives that I’ve taken, for the suffering that I’ve caused you, for damage that I’ve done. Irreparable damage.” One local prosecutor commented, “His lack of remorse sealed his fate.”25

Juveniles, the Intellectually Disabled, and the Death Penalty At Leon Brown and Henry McCollum’s trial, the defense l­awyers tried to emphasize the youth of the two boys as mitigating ­factors for the jury to consider. McCollum’s l­awyer emphasized that he

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“has no significant history of prior criminal activity.” He was nineteen years old. Leon Brown was just fifteen.26 The last time that a person who was ­under sixteen when committing a capital offense had been executed in the United States was in 1948. The jury was not moved by ­those facts. Nor did the defense have access to top experts who could describe the intellectual disabilities of the boys. ­Today, juveniles like Leon Brown cannot be sentenced to death or to life without parole.27 The U.S. Supreme Court ruled just a few years a­ fter Brown was convicted, in Thompson v. Oklahoma, that juveniles u ­ nder sixteen years old may not be sentenced to death.28 The court then ruled in Roper v. Simmons, in 2005, that juveniles ­under eigh­teen may not be sentenced to death.29 ­Those Supreme Court rulings cannot convincingly explain the decline in the death penalty. When Roper v. Simmons was deci­ded, the number of death sentences imposed each year had already begun to sharply decline. By the time of the court’s ruling, ­there ­were hardly any juveniles still being sentenced to death anywhere in the country. ­Today, Henry McCollum and Leon Brown might not be eligible for the death penalty for a second reason: intellectual disability. In 2002 the U.S. Supreme Court deci­ded in Atkins v. ­Virginia that intellectually disabled individuals may not be executed.30 Jurors might have assumed that such disabled p ­ eople acted reprehensively, incorrectly sentencing them to death when it was their disability that influenced their actions as well as their lack of remorse afterward. In Atkins, the Supreme Court emphasized how such individuals have “disabilities in areas of reasoning, judgment, and control of their impulses” so that they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” ­After all, the purpose of the death penalty was, broadly speaking, “retribution and deterrence of capital crimes by prospective offenders.”31 As with juveniles, individuals not fully

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in control of their be­hav­ior, by definition, cannot be rationally deterred. The Supreme Court also noted how “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved.”32 Innocent ­people like McCollum and Brown who are intellectually disabled may also be far more likely to comply with authority, falsely confess, and face difficulty meaningfully assisting their attorneys. The court said, “Mentally retarded defendants in the aggregate face a special risk of wrongful execution.”33 Some thought that the Supreme Court’s ruling forbidding the execution of the intellectually disabled might drive death sentences down. The dissenters in Atkins cited estimates that as many as 10 ­percent of death row inmates ­were intellectually disabled.34 Yet it is not likely that the ruling resulted in a 10 ­percent drop in death sentences. Most states by that time forbade the death penalty for the intellectually disabled. North Carolina passed such a law in 2001.35 By 2002 almost ­every state barred executing intellectually disabled ­people; the Supreme Court noted that only five states ­were still trying to execute the disabled, and the court ruled the way it did precisely b ­ ecause the practice had become “truly 36 unusual.” Moreover, some states have resisted the court’s ruling in ­Atkins—­and, to be fair, the court itself punted on what constitutes intellectual disability and for many years said that states could define it for themselves. As a result, challenges are often still brought ­under Atkins, in which inmates argue that they are intellectually disabled and the state argues that they are not. Some states, like Florida, imposed arbitrary IQ-­score cutoffs in an effort to execute intellectually disabled individuals; the Supreme Court rejected such efforts in its 2014 ruling in Hall v. Florida.37 In its 2016 ruling in Moore v. Texas, the court similarly emphasized that judges cannot make up tests for who is intellectually disabled.38

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Instead, sound medical practice must inform the life-­or-­death decision of w ­ hether an individual is intellectually disabled or can be sentenced to death.

­M ental Illness and the Death Penalty Huge numbers of mentally ill individuals sit on our death rows. Many are executed. A recent study found that one in ten death row inmates is a veteran, many with service-­related posttraumatic stress disorder.39 In 2015, half of the twenty-­eight ­people executed in the United States w ­ ere mentally disabled, had brain injuries, or had severe m ­ ental illness. They included Warren Hill, executed in Georgia despite an IQ of seventy and the testimony of doctors hired by the state who concluded that he was intellectually disabled; Cecil Clayton, executed in Missouri although he had lost 20  ­percent of his prefrontal cortex in a sawmill accident; and Robert Charles Ladd, executed in Texas despite an IQ of sixty-­ seven.40 Why is this still happening? For hundreds of years, executing the insane has been branded as “savage and inhuman.” Sir Edward Coke wrote that ­under the common law of E ­ ngland, “[B]y intendment of Law the execution of the offender is for example, . . . ​but so it is not when a mad man is executed, but should be a miserable spectacle, both against Law, and of extreme inhumanity and cruelty, and can be no example to ­others.”41 In 1986 Justice Thurgood Marshall wrote, in Ford v. Wainwright, that “the execution of an insane person simply offends humanity.”42 Outright insanity should be easier to show than disability, but even insanity can be contested in the courts. An outright insane person cannot be executed, to be sure, but if an inmate has some understanding that their actions are the reason why they ­will be executed, courts let the execution happen. Only psychosis might bar execution, and many death penalty states do not take

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medical diagnoses seriously. In 2007, in Panetti v. Quarterman, the Supreme Court held that not only does the Constitution forbid executing the insane, but an a­ ctual “psychotic disorder” and suffering “gross delusions” should bar execution.43 Yet Scott Panetti, a schizophrenic, remains on death row as of this writing. Panetti’s was a textbook case of insanity. He had been institutionalized repeatedly before the murder of his in-­laws in Fredericksburg, Texas. In 1992, he brutally shot his in-­laws with a hunting ­rifle, right in front of his estranged wife and his d ­ aughter. He told police that a character named “Sarge,” one of his four or five personalities, who he would regularly hallucinate about, made him do it. At a separate initial trial on the issue of ­whether he was competent, he was medicated with massive doses of antipsychotic drugs. The first jury hung; a­ fter a surprise change of venue a second jury found him competent to be criminally tried. At his death penalty trial in 1995, he was somehow allowed to represent himself—­ without taking his antipsychotic medi­ cation, while wearing a purple cowboy suit, and requesting the opportunity to examine witnesses such as John F. Kennedy, Pope John Paul II, and Jesus Christ. His standby ­lawyer called his trial per­for­mance “bizarre,” “scary,” and “trance-­like.”44 The one sensible t­ hing Panetti did at trial was raise the insanity defense. When his habeas petition reached federal court, the judge initially rejected his claims out of hand. Facing an execution date, he filed again. This time the state court stepped in and appointed a psychiatrist and psychologist, but ultimately it conducted no hearing and found him competent. The federal judge let Panetti hire and pres­ent his own experts. The experts concluded Panetti believed that the death penalty was a satanic plot, with the state “in league with the forces of evil” and trying to “prevent him from preaching the Gospel.” The judge found that he lacked a “rational understanding” of the reason for his execution but still ruled that he could

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be executed. The judge noted that the forgiving (and not at all medically informed) standard the appeals court was using required only that Panetti have some “factual awareness” of the reason he was to be executed. Unsurprisingly, the appeals court agreed. In 2007, the Supreme Court reversed, but that was not the end of the story. With Panetti facing a new execution date, about which the state initially told him (but not his ­lawyers), the judge held new hearings. This time the judge, who refused to give the defense more funds for experts to evaluate Panetti, concluded that Panetti was competent. In 2013, the appeals court again agreed that Panetti was competent to be executed, this time for the reason that he had a “rational understanding” of why he was to be executed and had “thought about the death penalty and its moral and po­liti­cal implications.” ­After all, the state’s expert thought that Panetti had no m ­ ental illness at all and was just trying to “imitate” schizo­phre­nia. Panetti also happens to think that “Bluetooth technology” is being used to conduct surveillance on him through his teeth. This time, the Supreme Court refused to step in; as of this writing, the appeals court continues to review the m ­ atter. One begins to won­der who is more delusional: the death row inmate or the judicial system. ­Things are slowly changing in Texas, though. In early 2016, prosecutors agreed that a Brazos County death row inmate was incompetent to be executed, when for years he had been experiencing “paranoid and grandiose delusions” and had accused Magic Johnson of impersonating him.45 One would think that severe m ­ ental illness would bar execution for the same reasons that the Supreme Court has said states cannot execute juveniles or the intellectually disabled. However, the Supreme Court has never required as much. The prob­lem is a pressing one. Reports have described large numbers of mentally ill persons on death row. Many may have serious m ­ ental and emotional disorders due to PTSD, including from combat. As of 2015,

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approximately 10  ­percent of individuals on death row ­were veterans.46 In response, some states are now considering broader legislation to prevent execution of the severely mentally ill. Lawmakers in Ohio and other states have considered barring the death penalty for t­hose who have a clinical diagnosis of schizo­phre­nia, schizoaffective disorder, bipolar disorder, major depressive disorder, or delusional disorder.47 Former Ohio Attorney General Jim Petro spoke in f­avor of the Ohio bill, noting that he now opposes the death penalty, in part b ­ ecause severely mentally ill p ­ eople may confess to murders they did not commit, and even if they are clearly guilty, they cannot be “the worst of the worst.” He recalled that as attorney general, he executed “at least three persons with some level of ­mental illness,” including a man with “paranoid delusions,” a man with depression, and another with “major depression with psychotic features”—­and all three “waived their rights at some point and volunteered for execution.”48

Sentencing McCollum and Brown The sentencing of Henry McCollum and Leon Brown is a perfect example of typical defense lawyering from the heyday of the death penalty—no real case for mercy was made and no significant evidence about intellectual disability was presented—­while the prosecutor cried for harsh justice. Not only do we now know that the evidence of their guilt was outright false, but their defense ­lawyers handled the trial poorly, even without the benefit of the DNA tests that thirty years ­later proved the ­brothers’ innocence. At their sentencing trial, the self-­styled Amer­i­ca’s Deadliest Prosecutor spared no emotion in his arguments to the jury: Think about the fear, the fear, ladies and gentlemen of the jury. “I want to go home.” ­Couldn’t go home. . . . ​And then

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when its all over with, “­She’ll go downtown and tell the cops, and ­we’ve got to kill her now, kill her now.” Think not only, ladies and gentlemen of the jury, of the physical pain. . . . ​Think also of the ­mental pain of her death as she lay t­here, crying, whimpering, looking pitiful, according to the statement, looking pitiful on this piece of plywood out in the darkness, hidden in the bushes, crying, “Mommy. Mommy.” If you ­will [keep] time along with me, w ­ e’ll start [a period of silence] now. [Silence.] Five minutes of silence for [the victim], and that five minutes of silence spoke more poignantly than any witness heard in this case, ladies and gentlemen of the jury. . . . ​ Five minutes can be an awful long time, if ­you’re ­dying. Now, you must understand the hell that [the victim] went through. . . . ​49

The entire courtroom underwent a five-­minute period of silence. Now, how would the defense respond to t­ hese theatrics? At the first trial, the jury had found the ­brothers guilty of murder. But the second trial was more momentous. Now the jury would be asked to decide ­whether they would be sentenced to death. The entire sentencing hearing in the b ­ rothers’ double-­death penalty trial took place over less than one day, and it looked nothing like the extensive hearings conducted in the Aurora trial or the Boston Marathon trial. The ­lawyers apparently did remain awake, but they did ­little to try to make the case for mercy. At a death penalty trial, the “prosecution concentrates on one brief, vivid incident; the defense reviews an entire life.”50 The prosecution argues that the defendant did something irredeemably horrific, but that much should have come through in the guilt

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phase; now the defense must seek to humanize the person who did it. The U.S. Supreme Court requires that the jury be given instructions to explain how to make this grave life-­and-­death decision. ­Under the law of North Carolina at the time, jurors would be given guidelines on the two choices they had for sentencing: life imprisonment or the death penalty. The jurors would conduct a balancing act. First, they would be asked w ­ hether one of a list of eleven “aggravating circumstances” was pres­ent. If they found just one of the ­factors pres­ent, they could sentence the half ­brothers to death. At this par­tic­ul­ar trial, the first f­actor that prosecutors had to prove asked the jury the following question: “Was the capital felony committed for the purpose of avoiding a lawful arrest?” As the prosecutor put it to the jury, this was “A very s­ imple question, and the answer, of course, is, ‘Yes.’ ” The victim was killed to prevent her from ­going to “tell the cops,” or to prevent or avoid lawful arrest, which was an aggravating f­ actor.51 Second, the prosecutors had to prove that the defendants w ­ ere engaging in or aiding a rape. The jury had already found the b ­ rothers guilty of rape. The third aggravating f­actor was that the murder must be “especially heinous, atrocious or cruel.”52 What did that mean? The judge explained to the jury, “So, heinous means extremely wicked or shockingly evil, and atrocious means outrageously wicked and vile, and cruel means designed to inflict a high degree of pain with utter indifference to or even enjoyment of the suffering of ­others.” What­ever that all meant, this par­tic­u­lar murder would have to be more so than other murders. The prosecutor made it much simpler for the jury. He defined “heinous, atrocious, or cruel” as a murder that was “conscienceless.” He told the jurors to focus on what ­these defendants ­were like in the courtroom. “Defiant, aggressive, ready to attack. That is Buddy McCollum.”53 “Listen to me. They are dangerous young men, and dangerous young men grow up to be dangerous old men, and they are dan-

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gerous to society and they are dangerous to young girls.”54 The prosecutor asked, “Have you seen the first tear of remorse from ­either one of ­these defendants sitting at the next t­ able?”55 The “good within” the ­brothers, the defense l­awyers emphasized, should weigh in the minds of the jurors, and to ­counter the aggravating circumstances that the prosecution raised, the defense could introduce mitigating circumstances. ­There is no set list of topics the defense can bring up. As the U.S. Supreme Court has put it, a defense l­ awyer can put before the jury “any aspect of [the defendant’s] character or rec­ord and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”56 ­There are “virtually no limits” placed on the evidence a defendant may introduce “concerning his own circumstances.”57 But, at this stage, as the prosecutor in the McCollum case made sure to point out, “for the first time in this trial the burden is on the defense.”58 ­Today, defense l­awyers would be expected to do far more to shoulder that burden. A series of Supreme Court decisions since the late 1990s have made clear that defense l­awyers have an obligation to investigate mitigation, including the defendant’s background, and including by consulting experts on subjects such as intellectual disability and ­mental illness.59 What investigation did t­hese ­lawyers do? Not much, apparently. Both McCollum and Brown w ­ ere intellectually disabled. The jury heard almost nothing about it. ­There was no parade of highly credentialed experts like at the Aurora trial. Brown’s l­ awyer, in a very brief statement, said, “[W]hat purpose is it ­going to serve to put that retarded young boy in the gas chamber? What purpose is it ­going to serve?”60 Henry McCollum put his case best himself: “I’m sorry about the death but I d ­ idn’t kill her.”61 McCollum’s ­lawyer pleaded for his client’s life for just minutes; his closing arguments w ­ ere only a few pages long in the reporter’s transcription,

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perhaps not much longer than the moment of silence the prosecutor held. The ­lawyer did give an extended reading from the Bible to show that some passages support life imprisonment as an alternative to capital punishment: “I recall the time in which, when Cain killed his ­brother Abel and God punished him. His punishment at that time was to be banished away.” He could have said more about the role of mercy in the New Testament. Still, he spent more time on exegesis than he did on describing Mc­ Collum’s background or his lack of any prior significant criminal rec­ord. The ­lawyer concluded with this tepid statement: “You have before you ­today a choice of life and death. I urge you to choose life. You have listened patiently. Thank you.”62 The prosecutor countered, “[I]f you ­don’t know your Good Book, you might get thrown off the track by something like that.” But “tell him to read you, first of all, the commandment which says, ‘Thou shalt not kill,’ and then tell him to drop down just a few verses, where it says, ‘He that smiteth a man so that he die s­ hall surely be put to death.’ ” The prosecutor added, “­Today you wear invisible black robes. ­Today is judgment day. . . . ​I argue to you, I implore you, that the only appropriate punishment for both of ­these defendants in this case is death.”63 The judge then instructed the jury that if they found aggravating circumstances “sufficiently substantial” as compared to any mitigating circumstances, it was their duty to recommend a sentence of death. If they had reasonable doubt on any of t­hose ­factors, then they should choose life. The jurors retired to deliberate at 5:17 p.m. At 8:05 p.m. they told the judge that they had reached a verdict as to one of the two defendants. The judge suggested that they return in the morning. They returned at 10:00 ­ ous recommena.m., and at 10:37 the foreman reported unan­im dations that Leon Brown and Henry McCollum both be sentenced to death. The judge asked the defendants to stand. “Let the defen-

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dant McCollum stand.” “Stand, Mr. Brown.” Both complied. The judge ordered that they be “delivered by the sheriff of this county to Central Prison in Raleigh for the purpose of execution,” and “may God have mercy on [their] soul[s].”64

Life Support The challenge of obtaining mercy for a client facing the death penalty begins with the client. Wilbert Rideau knows something about what it is like to face the death penalty at trial. He was tried four times for the same bank robbery and murder charges, spending twelve years on death row in Louisiana and thirty-­two more years in Angola Prison, where he became the most famous prison journalist in the country as editor of The Angolite. In 2005, he was released ­after a retrial and conviction for a lesser charge of manslaughter. In addition to writing and speaking about prisons and punishment, he is part of the federal defender’s “life support proj­ect,” helping to convince clients to work with their ­lawyers. Some clients, due to depression, the pressure of facing capital charges, or m ­ ental illness, simply refuse to speak to their l­awyers. They may want to be sentenced to death: “an inclination to commit judicial suicide.” Rideau has now consulted on “scores” of cases in federal and state courts around the country.65 In some death penalty ­trials, the defendant refuses to work with the l­awyers, or even insists on representing himself. In ­Virginia, Roger Gleason, Jr., pleaded guilty to capital murder in 2011, and at sentencing he ignored his ­lawyers’ advice not to testify: “I’m like Jackie Gleason. I got a big mouth.” He openly bragged about his desire to commit murder and about how ruthless he was, ­because he wanted to be executed. He described in terrible detail why and how he had killed two dif­fer­ent cellmates, saying about the first victim, “Did I have a choice to kill that man? Was I in any

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physical danger? Nope. I’m the kind of person: ­don’t call my bluff.” He added, as to the second murder, “Do I feel remorse for it? No.”66 ­After trial, his attorneys made efforts to raise the issue of ­mental illness. Nevertheless, Gleason was executed in 2013.67 For many clients, consulting with someone like Rideau can help provide a more realistic perspective on their options. L ­ awyers cannot work on death penalty cases without getting to know their clients and intensively researching their backgrounds. In the past, local ­lawyers might have “thrown in the towel” and given up on a client who was inconsolable or unable to communicate. Now ­there are experts on how to break through to an accused murderer, even one who wants to die.

Rethinking Mercy and M ­ ental Health We are now coming to grips with the fact that many of the thousands of p ­ eople whom we have condemned to death w ­ ere not models of ­mental health. That makes the death penalty inherently difficult to impose, but it is just the beginning of the national crisis we face in making sure that we are not cruelly criminalizing and warehousing p ­ eople who cannot control themselves due to ­mental illness or ­mental disabilities. In the 1950s and 1960s, lawmakers shuttered public ­mental health hospitals that operated with inhumane conditions, but the result was that mentally ill ­people lacked housing, and many went to prison instead, where they receive very ­little treatment. Sheriff Tom Dart has worked to reform treatment of m ­ ental illness in the vast Cook County, Illinois, jail, noting that although “our society had determined that the state-­run m ­ ental hospitals ­were abhorrent . . . ​I just find the irony so thick that the same society finds it OK to put the same p ­ eople in jails and prisons.”68 Countless prisoners suffer from ­mental illness, from depression to bipolar disorder to schizo­phre­nia. Federal studies

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suggest that as many as one-­third of state prisoners and still more jailed individuals have been told they have a ­mental health disorder, and about 9  ­percent reported u ­ ndergoing mental health treatment overnight at a hospital or other fa­cil­it­ y before their incarceration. Absent a diagnosis they may not receive any treatment.69 The Treatment Advocacy Center estimates that ­there are 356,000 ­people with ­mental illness b ­ ehind bars.70 Some jails have still more pervasive prob­lems: 40 ­percent of the inmates at New York City’s Rikers Island fa­cil­it­y have m ­ ental illness or m ­ ental health prob­lems.71 In Minnesota about 60 ­percent of t­ hose in jail and 25 ­percent of ­those in prisons have ­mental illness.72 The largest psychiatric fa­cil­i­ty in the state of Florida is the Miami-­Dade jail. Local judge Steve Liefman pushed to create a special program to replace jail time with treatment for low-­level defendants with serious m ­ ental illness. The county police began to use a Crisis Intervention Team (CIT) to identify p ­ eople with ­mental illness upon arrest. For ­people in the diversion program, recidivism has decreased from 72 ­percent to less than 20 ­percent.73 In Cook County, which runs Illinois’s largest psychiatric fa­cil­it­y, the sheriff’s deputy director of ­mental health policy screens for ­mental illness but calls the job “staggering”: practically “­every other person I’m interviewing [is] mentally ill on any given day.”74 Unfortunately, what t­ hese reforms are a­ ccomplishing, and what Sheriff Dart thinks of as “the bare minimum,” is much more than many jails do. Faced with disturbed inmates, prison officials may place them in solitary confinement to protect other inmates, potentially making their condition far more severe. Or mentally disabled prisoners may be subjected to excessive force from prison guards, even resulting in deaths. Still o ­ thers face neglect and disregard of their medical needs. ­Human Rights Watch, reporting on ­these conditions, calls them simply “callous and cruel.”75 Many state-­run m ­ ental institutions ­were closed de­cades ago, with prisons

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taking their place, but prisons lack adequate ability to diagnose or treat m ­ ental conditions. If we cannot even take care to avoid executing the disabled and the psychotic, how well do we treat prisoners facing lesser sentences? Death penalty cases like the Aurora trial provide a clarion call for decriminalizing m ­ ental illness. Most criminal defendants do not receive the careful ­mental health screenings now routine in well-­handled death penalty cases. Death penalty cases show what a difference it makes if the defense can get quality experts who can comprehensively examine the ­mental health of a criminal defendant. All criminal cases require early intervention to do m ­ ental health screenings. Teams of l­awyers and experts are not required to treat ­mental health effectively. S­ imple ­mental health screenings by police, like ­those conducted in Miami, might prevent, for example, unnecessary use of force against mentally ill ­people, or false confessions by youngsters like McCollum and Brown. To be sure, ­there is a real national shortage of m ­ ental health professionals.76 It takes more doctors to evaluate a person if t­here is a “­battle of the experts,” like in a death penalty case, with experts on both sides. Another way to save resources is to supplement ­mental health screenings with ­mental health courts, like in Miami. ­These courts are designed not to punish but to provide an alternative to jail time if ­people keep up with their treatment. Many criminal judges see the same p ­ eople repeatedly being arrested and punished rather than getting the medical treatment they need. ­Mental health courts can help to end that revolving door. It is impor­tant to be sure that such programs are not coercive and truly provide care to the mentally ill, but judges are learning how to run them effectively and fairly. The approach has been used for addicts as well, in drug courts that emphasize treatment over punishment. Alternative courts have spread rapidly. Programs for juveniles and minor drug

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offenders, like the Pretrial Opportunity Program set up in the Eastern District of Brooklyn, have spread to about one-­quarter of the federal courts.77 Judge John Gleeson, who championed the program, explained, “The old-­fashioned way was to take bad apples, prosecute them and incarcerate them. The other way is to build the community and work to identify ­people who d ­ on’t need to go away and help them turn their lives around.”78 In my town of Charlottesville, ­Virginia, drug court graduation occurs on the last Thursday of ­every month. It is a moving event. Joining well-­ wishers, treatment providers, and friends of the gradu­ates, I attended the ceremony one morning in spring 2016 and heard two men give short speeches explaining how far they had come in the program. One had faced twenty years in prison at the age of fifty-­seven and instead had been given the chance to start over in drug court. He “thanked God, most of all,” and how he had “rebuilt” his entire self, including by having to “give up old ­people, places, t­hings,” and even some relatives, to change his habits. Another man described how he felt that his counselor was his “Beethoven,” helping to conduct the “orchestra” of his life, including by helping him get a driver’s license and a car. ­After the participants’ remarks, members of the audience read poems and offered congratulations. The judge encouraged both men to continue to participate in the recovery community. State courts that faced bud­get shortfalls ­after the last financial crisis have aggressively ­adopted ­these sorts of alternative courts. Almost all states have at least some diversion programs, and their success has far outstripped anyone’s expectations.79 ­These courts treat individuals, avoid the need to prosecute or imprison p ­ eople at all, and better prevent recidivism and crime, all while saving the states money. Bail-­reform proj­ects are also examining if m ­ ental health screening can be made a routine part of the decision w ­ hether to jail someone awaiting trial; we have seen suicides of mentally

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ill individuals detained pretrial, including b ­ ecause they cannot afford bail. ­These efforts are only as good as the surrounding social safety net. Merely telling a mentally ill person, an addict, or a victim of abuse who commits violent acts to get treatment or face jail time is not enough. We need to commit far more resources to provide counseling, housing, health care, and m ­ ental health care. Sociologist Bruce Western puts it well: “In the past, we saw vio­lence as an assault of the strong on the weak, and we punished it. Now we need to heal the frailty from which it springs.”80 Changing the orientation of courts so that they focus on rehabilitation is a big step. Improving the safety net so that vio­lence does not beget vio­ lence in the first instance is even more impor­tant. Death penalty cases highlight how impor­tant it is to carefully investigate m ­ ental health issues in criminal cases. However, death penalty cases also make vivid the more fundamental prob­lem that the criminal justice system should not be our first resort for treating the mentally ill. Instead, we need to replace criminal justice with social ser­vices.

4 T HE ­G REAT AMERICAN DEATH PENALTY DECLINE

The sudden decline in the American death penalty is a social trend that speaks volumes about the pres­ent and ­future of our entire criminal justice system. Death sentences have declined by more than two-­thirds since 2000, reaching the lowest levels seen in Amer­i­ca since the early 1970s. Prosecutors obtained just thirty-one new death sentences in 2016, a remarkable decline from the mid-1990s, when prosecutors obtained over three hundred death sentences per year. And no one predicted that this decline would happen, much less so deeply and rapidly. Figure 4.1 shows the stark decline in the numbers of ­people sentenced to death each year in the United States. It is worth pausing over the graph to contemplate what it captures. The decline is no fluke. It does not reflect a short-­term event like a moratorium in a key state. Although twenty states have abolished the death penalty, most that have done so in recent years, like Connecticut, Mary­land, and New York, never imposed many death sentences. Instead, the decline has been felt across each of the death penalty states, with states like California, Florida, and Texas that have long dominated Amer­i­ca’s death penalty landscape all experiencing this remarkable decline. Even Texas is fading fast: it imposed three death sentences in 2015 and four in 2016 (see Figure 4.2).

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350 300 250 200 150 100 50 0 1995

2000

2005

2010

2015

Figure 4.1 ​Death sentences in the United States, 1991–2016. Sources: Bureau of Justice Statistics, U.S. Dept. of Justice; data collected by Author.

400 Capital Sentences

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1985

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Year All others

Florida

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Figure 4.2 ​Capital sentencing by top states, 1979–2016. Source: Data collected by author.

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In addition to the biggest death penalty states, the midlevel states like Georgia, North Carolina, Oklahoma, and ­Virginia also experienced steady declines in death sentences. In 2015, North Carolina had no death sentences and only four capital t­rials. In 2016, North Carolina had just one death sentence, as did Oklahoma. Georgia had no death sentences in 2015 or 2016. ­Virginia has not had a single death sentence since 2011. The death penalty decline has occurred all across the southern Death B ­ elt. Many dif­ fer­ent states began to experience the decline in 1999. The obvious question to ask is why? What is causing the death penalty decline? Before we can frame an answer, we must grapple with the explanations that have been put forward.

Before the G ­ reat Decline Many seeking an answer to what could be causing this ­great decline turn first to a dif­fer­ent question: why did death sentences go up in the 1970s and 1980s? By the late 1960s, p ­ eople ­were saying that the death penalty was finished in the United States. ­There w ­ ere fewer and fewer death sentences each year. Then in 1972 the Supreme Court struck down the death penalty as unconstitutional in its Furman v. Georgia ruling. Suddenly the trend rapidly reversed course. At least in hindsight, many thought the rise in death sentences made sense. Public support for the death penalty had been steadily falling since the 1940s, but by the early 1970s the death penalty came “back with a vengeance.”1 Backing for the death penalty remained in flux, with proposals to eliminate the federal death penalty attracting real support. Governors in Arkansas and Pennsylvania halted the death penalty, and the California Supreme Court abolished it.2 Yet many state lawmakers passed new death penalty laws in reaction to the Supreme Court’s ruling in Furman v. Georgia. At the same time, the United States was experiencing

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a sharp and historic rise in crime, including in hom­ic­ ides, ushering in a “tough on crime” era in American politics. Richard Nixon ran a “law and order” campaign for the presidency in 1968 and appointed new conservative justices to the Supreme Court. The United States had a murder rate two to four times higher than that of most Western countries. As professors Franklin Zimring and Gordon Hawkins describe, the ubiquity of guns in the United States means that far more violent crimes turn lethal in this country.3 At the same time as this rise in crime and hom­i­cides, death sentences reached rec­ord levels. Many interpreters drew a causal inference: more murders produced more defendants to potentially receive the death penalty. The murder-­rate explanation for the rise in death sentences, however, has real prob­lems. For example, several states that imposed the most death sentences, like Texas and ­Virginia, had some of the lowest murder rates. At the county level the picture made even less sense, since very similar counties with similar murder rates varied wildly in the number of death sentences they imposed. Even by the mid-1960s, as murder rates w ­ ere soaring in Amer­i­ca, ­there w ­ ere fewer and fewer death sentences, in part ­because the death penalty was declining in popularity. Looking abroad, Eu­ ro­pean countries all experienced similar spikes in violent crime during the same time period, the 1960s through the early 1990s, and ­those countries did not ramp up imprisonment. (They did not have the death penalty.) Yet beginning in the mid-1990s their crime rates declined, too.4

Race and the Death Penalty The death penalty has long served as an instrument for the white majority to exercise power over blacks and minorities, particularly in the South. In slave states before the Civil War, impris-

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onment could not be used to terrorize ­people who ­were already captives; “the only punishments left ­were the death penalty, flogging, and other brutal physical treatment,” as legendary death penalty ­lawyer Stephen Bright puts it.5 Many states had laws specifying that minor crimes would be punishable by death if committed by slaves, but only by a slap on the wrist if committed by a white person. ­After the Civil War, lynching spread across the South. Some of the earliest Supreme Court death penalty rulings considered verdicts at mob-­controlled ­trials of black defendants in the South.6 For many de­cades, death sentences ­were imposed disproportionately on black defendants, typically in cases with white victims and involving a rape and not a murder. Of the p ­ eople executed for rape from 1930 to 1965, almost 90 ­percent ­were black. Over half of ­those executed in general had been black. When the Supreme Court struck down the death penalty in 1972, following a ­legal campaign waged by the NAACP ­Legal Defense and Educational Fund, Inc., ­these data figured in the justices’ rulings.7 However, when the Supreme Court reversed course and found new death penalty laws constitutional in 1976, the patterns of race discrimination persisted but in a dif­fer­ent form.8 When Warren McCleskey, a black defendant charged with killing a white police officer in Georgia, challenged his death sentence at a trial with eleven white jurors and one black juror, he presented to the courts something new: the most sophisticated study ever conducted on the role of race in the use of the death penalty. Law professor and criminologist David Baldus led a comprehensive study looking at hundreds of f­actors pres­ent in e­ very murder case in Georgia. What separated the 128 death sentences from 1973 to 1979 in Georgia from the over 2,000 murder cases that never received a death sentence? In a word: race. Specifically, the researchers found that a defendant was 4.3 times more likely, on average, to receive a death sentence if the victim was white

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than if the victim was black. The researchers controlled for hundreds of ­factors, including how aggravated the murder was.9 You could call this a “white lives m ­ atter more” effect—­cases with white murder victims received death sentences far more often than ­those with black murder victims. Yet in McCleskey v. Kemp, the Supreme Court said that while this landmark study “indicates a discrepancy that appears to correlate with race,” t­here was no constitutional prob­lem. ­These statistics did not show a pattern that was sufficiently “stark” evidence of intent to discriminate. If the Justices accepted this claim of racial bias, o ­ thers might challenge “other types” of penalties, and this could throw “into serious question the princi­ples that underlie our entire criminal justice system.”10 Justice William Brennan famously retorted in dissent that the Justices betrayed a fear of “too much justice.”11 In the years since, David Baldus and many other researchers have done study ­after study in nearly ­every death penalty state, all reaching the same troubling findings: the race of the victim defines who gets sentenced to death. The U.S. Senate asked the General Accounting Office to review the lit­er­a­ture; they found race effects in 80 ­percent of the studies. In a more recent review, over 90 ­percent of cases had effects based on the race of the victim, and an American Bar Association assessment of death sentences in major death penalty states found racial disparities in e­ very case.12 North Carolina passed the Racial Justice Act in 2006 to study the role of race in death sentencing. ­After researchers began to analyze the data and found race a “significant f­ actor” in death sentences, legislators followed the same “see no evil” approach of the Supreme Court: in 2013 they repealed the act.13 A disturbing remedy for the prob­lem identified by ­these studies could be to charge more black defendants with the death penalty. Hom­i­cide rates are much higher for young black men than for any

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other demographic—­and murders by young black men reached terrible heights in the 1990s. The bulk of the victims w ­ ere also young black men. If more death sentences ­were imposed for cases with black (as opposed to white) victims, then more young black men would be sentenced to death. Alternatively, of course, the pattern could be addressed by sentencing fewer ­people to death in cases with white victims. ­There are several explanations for this racial disparity in death sentencing. One explanation could be the preferences of prosecutors. Another explanation could be that jurors are more likely to impose death sentences in cases with white victims. ­Those two explanations may be connected: racial bias in the se­lection of jurors by prosecutors persists in death penalty cases. Judges only occasionally have granted relief in extreme cases in which prosecutors struck all or most of the black ­people from the jury. For example, in the high-­profile case of Thomas Joe Miller-­El, in which prosecutors in Dallas, Texas, struck 91 ­percent of the black jurors, the Supreme Court twice held that racial discrimination occurred. Former Dallas prosecutors had testified that the office had a “systematic policy” of excluding black jurors. The office had used a manual instructing prosecutors how to remove black jurors. The prosecutors had taken notes on the race of each juror.14 In 2017, the Supreme Court reversed the conviction of Duane Buck, in which the defense l­awyer allowed an expert to testify that Buck was statistically more likely to be violent in the ­future ­because he was black.15 ­Those egregious cases are just the tip of the iceberg. Minorities more often oppose the death penalty and can be disproportionately struck in the death-­qualification pro­cess. Studies of jury se­lection in death penalty cases have found that far more black jurors are struck.16 Race affects death sentencing in additional ways. A well-­known experiment led by psy­chol­ogy professor Jennifer Eberhardt found that “perceived ste­reo­typicality” of

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black persons’ f­aces corresponded with an increased likelihood that ­people would sentence the person to death.17 Few lawmakers or prosecutors or judges have done anything to study—­much less respond to—­these entrenched prob­lems with race discrimination at e­very stage, from the early decisions to charge someone with the death penalty, to jury se­lection, to trial. Iw ­ ill show in Chapter 6 how race-­of-­victim patterns persist to this day in county-­level death sentencing, and I ­will describe in Chapter 8 how racial disparities are even greater among the relatively few death-­sentenced inmates who are executed. The rise in death sentencing may have only magnified under­lying prob­lems with race discrimination.

The G ­ reat American Crime Decline Even if the evidence ­doesn’t support the belief that the rise in crime in the 1970s, 1980s, and 1990s explains the period’s rise in death penalty cases, perhaps the more recent drop in murders can explain the drop in death sentences. Or, put differently, did the G ­ reat American Crime Decline, as law professor Franklin Zimring has called it, set the stage for the ­Great American Death Penalty Decline that followed?18 The circumstantial evidence is promising. Beginning in the mid1990s, crime fell across a wide range of demographics and geographic areas, both urban and rural. The decline was also across all types of crimes, from hom­i­cides to property crimes, and it occurred both in cities where new crime-­fighting strategies received g­ reat public attention and in other cities where they did not. The best available data show a stunning decline in hom­i­cides in the early 1990s and continuing for more than two de­cades (Figure 4.3 illustrates ­these data). ­There are occasional spikes—­for example, in 2001 due to the 9 / 11 attacks—­and t­here was a rise

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12 10 8 6 4 2 0 1980

1985

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2015

Figure 4.3 ​U.S. hom­i­cide rate per 100,000 ­people, 1980–2015. Source: Bureau of Justice Statistics, U.S. Dept. of Justice.

in 2006–2007. ­There was a spike again in 2015, with more murders in some large cities but not ­others. However, the long-­term trend is consistent. Murders declined from almost 25,000 in 1991 to 16,000 in 2004 and ­under 13,000 by 2010.19 Crime in general is continuing to steadily fall. The steepest decline in murders occurred in the mid-­to late 1990s. What is notable, and sobering, is the fact that no one predicted that murders or crime more broadly would decline in the 1990s. Instead, experts thought that even more crime was on the way. New laws w ­ ere passed to target the coming waves of “superpredators” who did not materialize. So why is crime declining? Scholars have suggested many theories, including the increased imprisonment rate and the greater numbers of police officers on the streets by the late 1990s. Relatedly, some have argued that adoption of harsher sentences, such as three-­strikes laws, might account for more imprisonment but

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might have also deterred crime. O ­ thers theorize that f­actors outside of criminal justice may have reduced crime, for example, the age structure of the population (crime is mostly committed by younger ­people), the legalization of abortion, the waning of the crack epidemic, or the banning of lead in paint and gas.20 Most plausibly, the decline in crime is a larger social phenomenon in the United States and in other Western countries—­the result of urban and suburban stability, a rise in living standards, and the spread of m ­ iddle class values. Psychologist Steven Pinker has argued that vio­lence is declining across the world, for reasons mostly having to do with modern values and practices. Indeed, the very same h ­ uman rights ideals eroding the use of the death penalty in many countries may also be causing a decline in vio­ lence.21 In contrast, harsh punishments may be a symptom of the type of unstable, cruel, violent society that we must work to put b ­ ehind us. The decline in murders clearly plays some role in the American death penalty decline. The decline in death sentences began in the late 1990s, just a­ fter murders began to drop. Yet the decline in murders cannot be the only explanation—­and for that reason even if murder rates rise in the f­ uture, death sentences may still remain in a state of decline. ­There ­were never many death sentences per murder, and ­today ­there are fewer than three death sentences per thousand murders. Given that t­here are now over 15,000 murders a year and only a few dozen death sentences a year, any relationship between murders and death sentences is not very clear. While murders have declined modestly since 2000 (by about 10  ­percent), annual death sentences have fallen by 90  ­percent since their peak in the 1990s. Consider the fact that dif­fer­ent states experiencing dif­fer­ent drops in murders have all experienced a common decline in death sentences. Take Texas and North Carolina, which have both ex-

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perienced remarkable declines in death sentencing over the last fifteen years. In Texas, murders fell dramatically in the 1990s, accompanied by a steep decline in death sentences. By contrast, in states like North Carolina, the numbers of murders have remained fairly stable since the 1990s, but North Carolina has also experienced a steep decline in death sentences. Any relationship between murders and death sentences at the state level is highly inconsistent. At the county level, however, as I describe in more detail in Chapter 6, ­there is a connection between murder rates and death sentences. It is even stronger if one looks at the delayed effect of murder rates on death sentences. However, I ­will explore how other f­actors also powerfully explain the differences in county-­ level death sentencing. Still more troubling, the effect of murder rates on death sentences is most pronounced in a manner that is racially biased: it is the counties with more white victims of hom­ i­cide that impose more death sentences. Since about 2008 ­there have been so few death sentences that it is harder to observe any connection between murder rates and death sentences. ­There is a growing disconnect between the two. The death penalty decline may now have a life of its own, separate and apart from the decline in murders. What is driving it?

Public Opinion One explanation could be that the general crime decline and the decline in murders catalyzed a broader change in public opinion. The crime and murder drop could have pushed ­people past a tipping point; as ­people became less fearful about crime, they became less inclined to seek harsh punishments for offenders. Prosecutors, jurors, judges, and the public may all feel less punitive when an atmosphere of anxiety about crime starts to clear. Perhaps ­after several years of crime decline, by the end of the 1990s,

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the death penalty lost its broader social support, which had been grounded in fear. How much of a role public opinion played in the death penalty decline is hard to say. Much of the polling available is through national polls. We do know that public opinion has shifted away from support for the death penalty over the past two de­cades. The change has been gradual and not nearly as steep as the decline in new death sentences. In 1936, Gallup conducted the first polling on the death penalty in the United States ­after the sensational kidnapping and murder of aviator Charles Lindberg’s baby. Gallup found 61 ­percent in ­favor of the death penalty. The Gallup organ­ ization has done polling ­every year since on the question “Are you in ­favor of the death penalty for a person convicted of murder?”22 The polling methods have changed over time (early on, for example, they polled almost exclusively white p ­ eople, and fewer 23 than 30 ­percent ­women). A single open-­ended follow-up would ask participants why they f­ avor or oppose the death penalty. Over time, fewer individuals noted retribution or “an eye for an eye” concerns, and fewer also cited recidivism and deterrence. In the 1990s, public support for the death penalty ranged from 70 ­percent to over 80 ­percent. By 2013, it had declined to 60 ­percent.24 In 2016, it had dropped to 49 ­percent.25 To be sure, national polls may not fully reflect public opinion in death penalty states. For example, a Texas poll in 2013 showed that about 75 ­percent of Texans supported the death penalty (although 49  ­percent said that wrongful conviction “occasionally happens.”)26 Nor do changes in public opinion necessarily affect what happens in death penalty ­trials. ­Those polls do not reflect who sits on a jury. ­After all, in death penalty ­trials, the jurors are all “death qualified.” Any jurors who have strong doubts about the death penalty may be removed from the jury pool. Jurors, studies have shown, may think wrongful convictions can happen

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but do not normally believe that it could happen in the case that they deci­ded. Has any change in public opinion been in response to the drop in violent crime or murders? P ­ eople responding to the polls have actually emphasized other concerns. Most striking, many Americans have responded to polls by saying the death penalty is unfair ­because “sometimes an innocent person is executed,” with ­others concerned that it is unfair b ­ ecause it is “applied differ­ eople express ently from county to county and state to state.”27 P strong concerns about wrongful convictions: 11  ­ percent cited that concern in 1991, 25  ­percent did in 2003, and 17  ­percent did in 2014. ­There is also a racial divide in public opinion. White Americans and older Americans are more likely to support the death penalty, as are Republicans—­but ­those differences have narrowed over the past de­cade.28 The changes in public opinion may not translate directly into what happens in death penalty cases, but t­ here may be some kind of a tipping-­point story that can be told. At some juncture, public opinion may fi­nally start to creep into decisions by prosecutors and judges and jurors in ways that are hard to mea­sure. ­There is some evidence that t­oday more jurors in death penalty cases are open to the possibility that life without parole is appropriate.29 If that is true, changes in public opinion may give defense lawyers more room to try to select ­those jurors and appeal to them, as they did in the Aurora case. Perhaps public opinion is also affecting prosecutors, who are typically elected and may be less gung ho about the death penalty if voters are not as set on it. ­Today, prosecutors have won elections in formerly staunch death penalty counties while openly opposing the death penalty. Public opinion may also be affecting judges, who are elected in many death penalty states. Certainly, absence does not make the heart fonder: with fewer executions and death sentences, ­people may increasingly

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forget why they w ­ ere ever so concerned that some murderers be sentenced to death.

Does the Death Penalty Deter Murder? ­ hings did not look so rosy in the mid-1970s, when the United T States and much of the Western world experienced an explosion in violent crime. At a momentous time in the history of the American death penalty, just ­after the Supreme Court had found it unconstitutional in 1972, economics professor Isaac Ehrlich prominently claimed that e­ very execution deters eight murders. When the Court brought the death penalty back in 1977, the Justices cited Ehrlich’s study as evidence that the death penalty deters. Other economists have repeated Ehrlich’s studies using similar designs. ­Those scholars have testified in Congress, claiming that “almost all modern studies” have found “a significant deterrent effect of capital punishment.”30 The death penalty itself deters murders, they argued, and more death sentences and executions explain why murders have gone down. The notion that the death penalty deters murders has a power­ful appeal even if it is flawed. S­ houldn’t murderers think twice before risking the death penalty? As law professor and economist John Donohue recounts, an economics professor once told him at a workshop, “Come on, we know the death penalty deters. If you had the death penalty for illegal parking, no one would do it.”31 Of course the death penalty would provide a deterrent for illegal parking, but the proper question is one of marginal deterrence: would the death penalty provide measurably more deterrence than life without parole or, for illegal parking, a ­really expensive ticket? Back in 1924 the legendary trial l­awyer Clarence Darrow called the notion that the death penalty deters crime nothing more than an “ancient superstition.”32 ­There are plenty of good reasons for

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a person considering murder to think twice, even without facing the death penalty. One reason is life without parole, now available in e­ very death penalty state. Murderers, though, may not have any idea what the death penalty law is—­these days it is not easy to keep track of ­whether executions are happening or in which states. A murderer may not be thinking rationally at all but instead may be acting in the heat of passion or be severely mentally ill or disabled. The professor who ignited the deterrence debate, Ehrlich, happened to do his work just ­after the late 1960s, when death sentences had dropped rapidly but crime was on the rise. Yet death sentences had been dropping steadily for de­cades since the 1930s without any rise in crime, as scholars pointed out. A report by the National Research Council, the research arm of the National Academies of Sciences, the leading scientific organ­ization in the country, concluded in 1978 that t­here was “no useful evidence on the deterrent effect of capital punishment.”33 A thorough debunking by law and economics professors John Donohue and Justin Wolfers showed how making minor changes in the models that t­hose studies used would spit out wildly dif­fer­ent results from the equations the deterrence camp was using—­like ­every execution leads to between twenty-­nine and forty-­two more murders. Thus, “[O]ne has ­little reason to prefer the conclusion that the death penalty ­will save lives to the conclusion that scores ­will die as a result of each execution.”34 A 2012 review by the National Research Council agreed, expressing disappointment that thirty years of deterrence studies had produced no informative evidence at all.35 ­Today, the death penalty deterrence story makes even less sense. In the past de­cade and a half murders went down, but death sentences have gone down even faster. Moreover, murder rates went down not just in states that have the death penalty, but also in states that entirely abolished the death penalty. And the same

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happened in other countries, like Canada: crime went up in the late 1960s and continued to go up, but then fell rapidly in the 1990s. Yet in Canada the death penalty was abolished in the 1960s. As scholars like Frank Zimring and John Donohue have pointed out, the aggressive use of the American death penalty cannot explain why Canada had a very similar drop in crime. Indeed, Canada imprisoned fewer ­people and hired fewer police in the 1990s while still experiencing the drop in crime. The prob­lem goes still deeper. The dramatic decline in murders came a de­cade before death sentences suddenly dropped. In other words, the cart came before the ­horse. Consider also that most murders are not eligible for the death penalty. Only the “worst of the worst” can be sentenced to death. States define who is death eligible in dif­fer­ent ways, and in some states the definitions are so broad that most murderers could potentially be charged with the death penalty. One study found that over 90 ­percent of Colorado murderers could be death eligible.36 The famous study led by David Baldus of Georgia death sentences found that 86 ­percent ­were death eligible.37 Professors Jeffrey Fagan, Franklin Zimring, and Amanda Geller studied the “market share” of the death penalty and found that about 25  ­percent of killings in the United States w ­ ere death penalty eligible. But they found that the drop in murders was concentrated in the types of murders that w ­ ere not 38 death eligible. They also found that l­egal trends, most importantly a state’s decision to end the death penalty, did not affect the rate of death-­eligible killings. So, for example, the abolition of the death penalty in New York had no effect on the rates of death-­ eligible killings committed t­here. Conversely, nor did the rise in executions in Texas, particularly in the late 1990s, when Texas was executing almost three ­people per month. “Invisible,” the authors call any deterrence effect of the death penalty. This calls into question not only the controversial death

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penalty deterrence studies but also the murder-­rate explanation for the decline in death sentences. Fewer and fewer murders mean fewer and fewer murders eligible for the death penalty. Yet death-­ eligible murders may be declining somewhat more slowly than murders in general. Meanwhile, death sentences are declining much faster than murders in general. At most, professors David McCord and Talia Harmon estimate that less than half of the decline in death sentences could be accounted for by the decrease in murders.39 Statistical analy­sis presented in Chapter 6 confirms that the decrease in murders is an impor­ tant ­ factor, but also that something ­else, beyond the national decline in murders, must also explain the sudden death penalty decline. Perhaps changes in the law at the state or national level can help explain the decline in death sentences. One possibility that many ­lawyers and commentators mention is that the death penalty has gradually come to be replaced with sentences of life without the possibility of parole, or LWOP.

Life Means Life “Now you have a choice. Before, you d ­ idn’t,” the Dallas County 40 District Attorney put it. Life without parole is new to the United States, and offering it as an option seems like a change that must explain the drop in death sentences. Before the 1970s t­here w ­ ere no true “life” sentences for crimes, since lawmakers ­adopted the view that all prisoners should be redeemable. Thus, in practice, a “life” sentence usually meant that ­after ten or fifteen years parole was at least a possibility. For federal prisoners, u ­ ntil Congress abolished parole in the 1980s, parole reviews w ­ ere conducted ­after fifteen years. In Louisiana, a prisoner serving life would be released ­after about ten years in prison, with good be­hav­ior. Only seven states had LWOP before 1972.

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­Today, however, “life means life.” LWOP took on steam during the same time that the death penalty began its steady rise. When the Supreme Court declared the death penalty unconstitutional in Furman v. Georgia, the same backlash that brought the death penalty back to life led to a surge in states adopting LWOP. Some states, like Illinois and Louisiana, did so in direct response to Furman. ­Others, acting in the 1980s, did so in response to a new skepticism at the possibility of rehabilitation and to a rise in “tough on crime” attitudes generally. By 1990 thirty-­three states and the District of Columbia had ­adopted LWOP. By 2012 all the remaining states had done so except Alaska (which has prisoners serving very long sentences, but they are not called life without parole). Six states, like the federal system, entirely eliminated parole, and not just for prisoners serving life. Many ­lawyers whom I talked to about what could be causing the death penalty decline pointed to the adoption of LWOP statutes. The LWOP explanation certainly made sense to me. We know that jurors are very concerned about ­future dangerousness: is ­there a chance that this murderer w ­ ill walk the streets again? Jurors should be all the more focused on f­ uture dangerousness in states like Texas and ­Virginia, where the judge instructs them to consider it. When jurors ­were concerned that “life” did not ­really mean “life,” they w ­ ere understandably more willing to sentence a 41 person to death. ­Today, a jury has far more reason to believe that “life” r­eally means “life without parole.”42 And for their part, prosecutors might not bother to seek the death penalty as often if they can more cheaply get a deal where the defendant agrees to an LWOP sentence. “When you start passing throw-­away-­the-­key bills, ­you’re effectively eliminating the death penalty,” argued longtime Harris County (which includes Houston) district attorney Johnny Holmes, Jr., who had long opposed life without parole. On the

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other side of the debate, some death penalty opponents have hailed LWOP statutes. If LWOP is available, prosecutors ­can’t tell a jury, “If you do not sentence this man to death, he w ­ ill be back on the street.” The National Co­ali­tion against the Death Penalty called life without parole “a sensible alternative to capital punishment.” Kathleen Sebelius, then an anti–­death penalty governor in Kansas, signed LWOP legislation in 2004, calling it an option that is both “cheaper in the long run” and a useful alternative for “­people who should never walk the streets again.”43 LWOP laws would afford all the benefits of the death penalty but without the executions. Death penalty opponents had good reasons to think that LWOP would discourage jurors from imposing death sentences. ­After all, public opinion polls have long suggested that ­people support the death penalty far less when LWOP is an alternative. Studies of capital jurors across a range of states suggest that jurors are far more likely to impose a life sentence over a death sentence if they think that a defendant w ­ ill serve an a­ ctual life sentence. Even the most hard-­core defenders of the death penalty find LWOP persuasive.44 Texas governor Rick Perry holds the rec­ord for overseeing more executions than any other American governor during his eight years in office: 279. He was no death penalty reformer. He wrote, “If you d ­ on’t support the death penalty and citizens packing a pistol, d ­ on’t come to Texas.” But Perry eventually came around and supported a life without parole mea­sure, saying that it “could improve the criminal justice system” by giving jurors “a new option to protect the public with the certainty a convicted killer ­will never roam the streets again.”45 Why would Rick Perry do that? It is highly doubtful that he bent to pressure from death penalty opponents. When Texas ­adopted life without parole in 2005, the Dallas Morning News explained, “Death penalty reformers,

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including this newspaper, have pushed for life without parole for several years.”46 Texas was late to pass LWOP as an option. Many, like district attorney Holmes, feared that fewer death sentences would be imposed if jurors could make that choice. But perhaps even the likes of Rick Perry saw the advantage of life without parole once the Supreme Court outlawed the death penalty for juveniles and for the intellectually disabled. Perhaps they realized LWOP gave them a power­ful supplement to the death penalty, another way to “throw away the key” when sentencing p ­ eople who could no longer be sentenced to death. What­ever the reason for states’ adoption of LWOP, what is most surprising about the consequences of LWOP is that it is clearly not the only or even an impor­tant driver of the death penalty decline. That is counterintuitive. One would expect, just like death penalty opponents and proponents had thought, that giving the jury an LWOP option would strongly discourage death sentences. Observers of the death penalty decline have concluded, “The LWOP alternative has had a large effect in reducing death sentences.”47 Yet at the state level, that is not what we have seen. Working with law student Ankur Desai and empirical researcher Alexander Jakubow, I collected statistics on death sentencing in each state, controlling for l­egal events like adopting life without parole. We found no strong statistical relationship between any of ­those changes and the decline in the death penalty. Although we found evidence that LWOP brings down death sentences slightly, it does not appear to affect ­matters much. Dif­fer­ent states ­adopted LWOP at very dif­fer­ent times. States that a­ dopted LWOP during the 1990s, when death sentences w ­ ere rapidly climbing, continued to see their death sentences climb. For example, Louisiana levied fifty-­five death sentences from 1977 u ­ ntil 1994. It ­adopted LWOP in 1994 and has imposed 106 death sentences in the years since. Most recently, the states that ­adopted LWOP during the

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2000s, when death sentences w ­ ere already dropping, continued to see their death sentences drop, unaffected by the adoption of LWOP. Texas is a remarkable case in point. Texas ­adopted LWOP late in the game, in 2005, but once that happened the state did not experience any new drop in death sentences. In fact, death sentences had already experienced the bulk of their decline in Texas before 2005. When LWOP took effect, Texas continued to experience the same gradual decline in death sentences, as if nothing had changed. States like California and Pennsylvania have had LWOP for de­cades, but they, too, saw a steady decline in death sentences during the same time period—­that is, a­ fter 2000, when other death penalty states also experienced the decline. In contrast, the states that a­ dopted LWOP during the 1990s saw a sharp rise in death sentences ­after life without parole was a­ dopted. In ­Virginia, death sentences went up for almost an entire de­cade ­after LWOP was ­adopted in 1995, reaching rec­ord numbers. The numbers of death sentences did not start to fall in ­Virginia ­until 2004, long ­after LWOP had taken hold. Other states ­adopted LWOP early on but still experienced a surge in death sentences in the 1980s and 1990s. California ­adopted LWOP in 1979, when it brought back the death penalty, and it has imposed over 900 death sentences in the years since. ­There was not much debate at the time about including LWOP, but during the debates, Governor Jerry Brown, who personally opposed the death penalty, had proposed LWOP as an alternative and had even suggested giving up the ability to commute the sentences of prisoners who received LWOP in an effort to argue that the death penalty would then be unnecessary.48 In Missouri, LWOP was introduced in 1984; it levied only twenty-­four death sentences between 1979 and 1984 but 173 death sentences in the years since. Another study that focused on executions and not

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death sentences also found that adoption of LWOP is a “relatively minor ­factor” in the drop in executions, which also makes sense.49 This calls into question death penalty opponents’ belief that embracing LWOP is a way to undercut the death penalty. The consequences might in fact be far more pernicious. While LWOP is not strongly associated with the decline in death sentences, the application of LWOP laws has led to tens of thousands more ­people being locked up for life than could ever have been sentenced to death. When Kansas approved LWOP, only a handful of legislators objected, and only one noted that LWOP takes away hope of rehabilitation: “I think the state should work ­towards rehabilitation,” the holdout senator explained.50 The push to broaden LWOP may have been a dev­il’s pact that did not greatly affect the death penalty, but it created a massive “life row” in this country, full of thousands of ­people who could never have been sentenced to death and who now have no hope of rehabilitation or release.

An Innocence Effect Is ­there an “innocence effect”? Some, like prominent abolitionist Richard Dieter have argued that “prob­ably the most significant cause” for the death penalty decline must be “the innocence issue,” particularly due to the emergence of DNA testing and DNA exonerations.51 That theory made a lot of sense to me. I have studied DNA exonerations for years, and ­these wrongful-­conviction cases forever changed how I perceive the criminal justice system. Exoneration cases like t­hose of Henry McCollum are incredibly disturbing, and they have received a g­ reat deal of public attention in the national and local media. DNA exonerations began to pick up steam by the late 1990s, right around the time that death sentences began to decline. Some states clearly abolished the death penalty ­because of concerns about wrongful convictions—­such

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as the state of Illinois, where in 2003 the governor commuted the sentences of the entire group of 167 individuals on death row following the exonerations of thirteen death row inmates. Yet I was surprised to learn, when looking at the data on death row exonerations, that ­there is not any association between death row exonerations and any change, over the years that followed such exonerations, in the numbers of death sentences in a state. To be sure, any innocence effect may be more diffuse and hard to pin down. In general, and not just in any one state, ­people may be far more aware that wrongful convictions can happen, even in death penalty cases. This may be impacting the decisions of prosecutors and of jurors. But take Florida, the state that has had the most death row exonerations: t­ here is no discernable impact of t­hose forty-­plus exonerations on Florida death sentencing. The larger pattern that I have observed is more chilling: the states with the most death sentences have the most death row exonerations. Wrongful convictions may not be reducing death sentences, but wrongful convictions may be a fixed product of death sentences. The inevitability that innocent p ­ eople ­will face execution if we have the death penalty could not be more sobering.

State Abolition Another pos­si­ble explanation for the decline in death sentences is that more states have abolished the death penalty. As of early 2017, nineteen states no longer have the death penalty, and of ­those, eight have abolished the death penalty since 2000. Each year, legislation to abolish the death penalty has been introduced in a range of states, and more states may abolish the death penalty in the ­future. (To be sure, Nebraska voters voted in fall 2016 to restore the death penalty, repealing legislation that had abolished it.) However, abolition cannot explain the death penalty

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decline. No states abolished the death penalty in the late 1990s or early 2000s, when the death penalty decline began in earnest. Nor did many of the states that have abolished the death penalty ever have large death rows. New York executed no one since bringing back its death penalty in 1995, which was one reason the state abolished it in 2007. Mary­land had only five ­people on death row when it abolished the death penalty in 2013. Connecticut executed only two ­people since the 1970s, both “volunteers” who stopped challenging their death sentences, and it abolished its death penalty in 2012. Illinois had fifteen ­people on death row but no executions since the late 1990s; it abolished the death penalty in 2011. In each state, the death penalty had become largely moribund. Still, the national trend ­toward abolition is unmistakable—­and more conservative states, like Colorado, Kentucky, Montana, and Utah, are at least considering bills to abolish the death penalty. L ­ egal abolition may one day reach the larger death penalty states, but perhaps not soon, particularly since California voters rejected an abolition mea­sure in 2016. Instead, the decline is happening across the country, in states where the penalty remains on the books but death sentences are vanishing.

Judge and Jury Sentencing Some argue that b ­ ecause judges have intensely regulated the death penalty, their rulings might explain the decline in death sentences. The Supreme Court has been closely watching over the death penalty for de­cades. Out of many thousands of petitions the Justices receive ­every year, they take fewer than a hundred to decide on the merits, and an outsized share of t­hose have been death penalty cases. The Justices have written over two hundred death penalty opinions since the 1970s, with an average of six each term.52 This interest does not, however, seem to have caused the death

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penalty’s decline. De­cades of the Supreme Court Justices’ “slow dancing with death,” as law professor James Liebman has aptly and morbidly put it, did not restrain the death penalty from reaching new heights in the 1990s. One set of l­egal changes occurred right at the time that death sentences w ­ ere declining, providing a chance to assess w ­ hether judges’ rulings can trigger such a decline. For many years, in some states, judges could impose the death penalty. Hanging judges, you could call them. In many states judges are elected, and they would even campaign on how pro–­death penalty they w ­ ere. Allowing the judges to impose death sentences came to something of a halt, though, ­after the Supreme Court’s 2002 ruling in Ring v. Arizona, holding that the Sixth Amendment right to a jury trial entitles a defendant facing the death penalty to have the key aggravating ­factors making the case eligible for the death penalty found by a jury and not a trial judge.53 Some states still allowed the judge to overturn the jury recommendation and impose the final sentence. Delaware allowed it but then abolished the death penalty in 2016. Alabama, however, still allows judge “overrides.” They should be declared unconstitutional, and perhaps soon they ­will. Could the Supreme Court’s ruling in Ring help to explain the death penalty decline? The nationwide death penalty decline began in 1999. The change to jury versus judge sentencing in 2002 did not result in any strong correlation with a decline in death sentences. Any small correlation is not a reliable one, and it chiefly comes from very small states, particularly Delaware, that had high death-­sentencing rates despite the paltry numbers of murders committed ­there. Just about ­every death penalty state quickly complied with the Supreme Court’s Ring ruling—­including Arizona and Nevada, which did not then experience a sharp decline in death sentences. The exception is the largest state with judge sentencing:

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Florida, which went right on violating Ring for over a de­cade. Florida was in a class of its own. The jurors did not have to be unan­i­mous in Florida death sentencing. Death could be imposed by the jury with a seven-­to-­five vote. Nor did Florida capital jurors have to say why they voted the way they did. Their majority vote (if it was a majority, since three jurors could find one ­factor and four another ­factor) was also just a recommendation. What­ ever the jury said was only “advisory,” since the judge made the final call. The judge could also override the jury. The American Bar Association, in an assessment of the Florida death penalty, singled out this feature of the law as fundamentally flawed. Since their role was so limited, jurors in Florida death cases described how they took the decision “lightly,” “pretty much had [their] minds made up,” and took their “vote in 30 minutes.” Fi­nally, in 2016 the Supreme Court in the case of Hurst v. Florida ruled that Florida’s death-­ sentencing law v­iolated the Sixth Amendment right to a jury trial.54 The Delaware Supreme Court found its death penalty unconstitutional following the U.S. Supreme Court’s ruling in Hurst.55 Florida may overtake Texas in numbers of death sentences, but much of its death row consists of hundreds of individuals who ­were sentenced to death u ­ nder an unconstitutional scheme. Still worse, a Florida Senate analy­sis of 296 jury votes in capital ­trials from 2000 to 2012 found that only 20 ­percent w ­ ere unan­i­mous. If the jury was given an ­actual choice and a full vote on ­whether to sentence to death, we might have seen far fewer death sentences in Florida. Moreover, when Florida legislators passed a new death penalty statute ­after Hurst, in 2016, the Florida Supreme Court struck it down, ­because it did not require that the jurors be unan­ i­mous in sentencing a person to death. Each juror, the court said, should have a chance to exercise a vote for mercy.56 The Florida Supreme Court separately ruled that judges must go back and

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apply Hurst retroactively, reexamining the hundreds of death sentences ­under the previous unconstitutional scheme.57 As a result, judges may overturn many old Florida death sentences in the years ahead. In current death penalty t­ rials, the Florida Supreme Court also ruled that jurors must be unan­i­mous.58 Nevertheless, t­hese ­legal changes still do not explain why the death penalty has already declined over the past de­cade and more. So, the question remains: what explains the decline? The high numbers of death sentences in the 1970s through the 1990s had always mostly come from a small number of counties in a small number of states. The steady decline in murders in our country is clearly part of the explanation, but it does not alone explain the decline in death sentences. ­People softening their support for the death penalty as crime and murders dropped may have also played a role. Other l­egal changes like adopting life without parole or switching from judge to jury sentencing do not provide such convincing explanations. As I ­will describe in Chapter 5, perhaps the most impor­tant explanation for the ­Great American Death Penalty decline has so far been missing: a defense-­lawyering effect. ­Today, ­lawyers far more often use the same tools that helped the defense win a life sentence in the Aurora theater shooting trial. ­Today, more p ­ eople facing the death penalty are defended by offices with investigators and l­ awyers whose job it is to h ­ andle death penalty cases—­and they increasingly win mercy. Perhaps it takes a team.

5 T HE DEFENSE-­L AWYERING EFFECT

The courtroom clerk dropped a book and “made a sharp noise.” This startled the defense l­awyer. According to the juror, who was ten or so feet away, the ­lawyer “kind of like jarred up and turned his head.” The ­lawyer’s eyes w ­ ere red. He wiped them and looked startled. The juror recalled, “I thought he was asleep. I ­couldn’t believe it, you know.”1 This did not happen just once. The l­ awyer would repeatedly “nod off or . . . ​catch himself dozing,” sometimes for several minutes, recalled the jury foreperson. Another juror said that the defense ­lawyer fell asleep five to ten times. The judge’s head clerk remembered how the l­ awyer “would drift off. . . . ​He was asleep.” By the ­middle of the trial, the ­lawyer grew even more tired. The l­awyer “was asleep for long periods of time during the questioning of witnesses.” The clerk recalled, “I had seen him before. I knew that he had this prob­lem.” In this notorious death penalty trial in Houston, Texas, in 1984, the ­lawyer whom the judge appointed to represent Calvin Jerold Burdine slept through a substantial portion of the trial. Burdine did not dispute that he was pres­ent when his ex-­lover was murdered, or that it was his idea to rob the man, but he argued that his codefendant was the one who actually beat and stabbed the

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victim. Burdine’s l­awyer not only slept at trial; he also performed minimal investigation or preparation beforehand. It showed. The trial was short, with just twelve hours of testimony. The l­awyer did not call any witnesses during the sentencing and gave the jurors no reasons to sentence Burdine to life instead of death. The ­lawyer did not object when the prosecutor made homophobic remarks about Burdine. The jurors deliberated for just seventeen minutes. ­After the conviction and death sentence, Burdine’s new ­lawyers argued that the Sixth Amendment to the Constitution, which guarantees a right to the assistance of a l­awyer in criminal cases, entitles a defendant to a minimally competent and effective ­lawyer throughout the proceedings. As they put it, a “warm body is not enough u ­ nder the Sixth Amendment.” The federal judge who heard the habeas petition in the case understandably thought the conviction should be reversed, since “sleeping counsel is equivalent to no counsel at all.”2 Burdine’s case became high profile when the appeals judges overturned the lower federal court’s reversal and reinstated the death sentence. The state had argued that the defense l­awyer’s “intermittent sleeping” did not r­ eally harm the client. The three federal judges agreed. In 2001, another panel of federal judges reversed again and ordered a new trial for Burdine. Unlike a “drunk or drugged” l­awyer, an “unconscious attorney is in fact no dif­fer­ent from an attorney that is physically absent from trial.” Amazingly, several of the appellate judges disagreed, saying the l­awyer may have “dozed” but not “slept.” They questioned how “many times he slept,” or how “deeply he slept,” ­whether nodding or bobbing reached the level of “unconsciousness,” or what precisely was happening in the courtroom while he slept.3 The sleeping-­lawyer case attracted state and national attention. Governor of Texas (and then–­presidential candidate) George W. Bush was asked about sleeping l­awyers in his state’s death penalty

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t­ rials. Burdine was not alone. His ­lawyer sent ten p ­ eople to death row. Another client, Carl Johnson, was executed in 1995, a­ fter appellate judges denied relief.4 George McFarland, still on death row in Texas, had a county-­assigned attorney who slept during trial. The trial judge commented, “The Constitution says every­ one’s entitled to the ­lawyer of their choice,” but “[t]he Constitution d ­ oesn’t say the l­awyer has to be awake.” The appeals court thought that perhaps the second ­lawyer let the lead ­lawyer sleep “as a strategic move.” As legendary death penalty l­awyer Stephen Bright put it, “For poor ­people facing the death penalty, this is what it means to be represented by ‘the Dream Team.’ ”5 Twenty years a­ fter the 1984 trial, Burdine’s ordeal was not over, even a­ fter the appeals judges reversed his conviction. The controversy did push Texas lawmakers to adopt a “Fair Defense Act” with improved standards for picking death penalty ­lawyers. But back in Harris County, the prosecutors prepared to retry the case, and the judge tried to bar the habeas ­lawyer who had fought the case for twenty years from representing Burdine. ­After what had happened at his original trial, Burdine refused to accept a ­lawyer the judge appointed. The judge responded by setting a trial date in three months, which “would have been the fastest capital trial in Harris County history.”6 Outcry resulted again, with the Harris Country Criminal L ­ awyer’s Association writing an open letter to the judge, saying, “Mr. Burdine’s retrial offers not only a second chance for Mr. Burdine, but also a second chance for this County to demonstrate that we are not asleep on the job, that our courts do take the rights of individual citizens seriously.”7 In response, the judge fi­ nally gave more time for a new team to investigate. A new l­awyer stepped in and worked for over a year to uncover new evidence and eventually to secure a life sentence for Burdine, assembling a group of volunteers in Texas and internationally along the way. Together, they went on to found the Gulf Region Advocacy Center

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(GRACE), a proj­ect to provide better trial lawyering in Texas and Louisiana. The proj­ect, initially a “scrappy l­ittle group of volunteers,” as leading abolitionist S­ ister Helen Prejean put it, has grown into a large office that has handled over fifty death penalty cases and that teaches other ­lawyers how to ­handle investigations and ­trials in death penalty cases.8

Gradual Change in the States One of the many shocking facts about the death penalty in the United States is that although t­hese cases involve the most serious crimes imaginable, the bulk of them are hardly a model for good lawyering. If anything, the deck has seemed stacked against the defendant. In the 1980s and 1990s, many states imposed cut-­rate caps on l­awyers’ pay—­for a time in ­Virginia, the effective rate for a defense l­awyer was thirteen dollars an hour—­trials ­were usually short, and courts regularly let death sentences stand even when defense ­lawyers had fallen asleep in court, showed up drunk, referred to their clients with racial slurs, or even admitted they had not prepared for trial.9 I believe that an impor­tant and underappreciated part of the ­great American death penalty decline represents the hard work and innovations of defense l­awyers serving clients in the most challenging of criminal cases. While death sentences have declined in ­every death penalty state, they have declined far more in some states than ­others. Explanations like life without parole and changes from judge to jury sentencing do not fully explain why some states have almost completely stopped sentencing p ­ eople to death while o ­ thers still maintain death sentencing. I find that the answer is straightforward: improved defense lawyering and greater resources produce real differences between state death sentence rates. Defense lawyering in death penalty cases had long been abysmal, and states did very ­little to ensure that such l­awyers met

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Capital punishment abolished

Capital representation by state

Limited state-level resources

No state-level capital defense

Figure 5.1 ​Capital defense regimes, 1980. Source: Data collected by author.

minimal standards, much less to create offices to ­handle specialized death penalty cases. One in six defendants in death penalty cases in North Carolina, for example, had ­lawyers who ­were ­later disbarred or disciplined for misconduct.10 In 1980, very few states had any statewide resources to provide defendants who could not afford their own l­egal repre­sen­ta­tion with qualified ­lawyers specializing in death penalty t­rials. Six states did so, and most w ­ ere minor death penalty states like Connecticut. In the 1980s, Millard Farmer founded a Team Defense proj­ect in Atlanta, Georgia, to show how well-­trained ­lawyers could make a difference in capital ­trials. ­Lawyers like John Blume, David Bruck, Stephen Bright, and Bryan Stevenson created public interest firms in the South to take on death penalty cases on appeal and postconviction, and their pioneering work highlighted the often abysmal quality of the trial lawyering.11 Figure 5.1 displays which states had capital defender offices in 1980. Slowly, the states began to support minimally

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Capital representation by state

Limited state-level resources

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Figure 5.2 ​Capital defense regimes, 2013. Source: Data collected by author.

qualified ­lawyers in death penalty cases. By 1990 nine states had done so, including major states like California, and a few additional states provided some limited assistance statewide at trial, even if they did not outright provide a ­lawyer. In recent years, a substantial change in defense lawyering has occurred in many death penalty states, but certainly not all of them. This is tragic for some defendants, but it allows us to answer a question: what is the defense-­lawyering effect on death penalty cases? By 2013, almost all death penalty states provided state-­ level capital repre­sen­ta­tion at trial, with a few ­others providing some limited resources, and only a few holdouts, most notably Alabama, Florida, and Nevada, that provide no state-­level capital defense. Figure 5.2 displays which states had capital defenders in 2013. The American Bar Association (ABA) has for de­cades set out guidelines for appointment and per­for­mance of defense ­lawyers in death penalty cases. The ABA has emphasized that

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t­here should be a “responsible agency,” or some organ­ization, to make sure that defense attorneys in a state are adequately trained and supervised. The ABA has done assessments of death penalty states and found that many do not satisfy minimal standards. The ABA found that Alabama, for example, has a “failing” and “patchwork” system for providing l­awyers to the indigent in criminal cases generally, with ­those prob­lems “exacerbated” in death penalty cases.12 What does comparing t­ hese states and death sentence prosecutions tell us?13 In brief, it tells us this: the defense-­lawyering effect provides a stronger explanation for the death penalty decline than any so far considered. In examining what is associated with the decline in death sentences in par­tic­u­lar states, law student Ankur Desai found that having statewide defense resources and assistance is strongly associated with the decline. He found that robust effect even when controlling for the numbers of hom­i­cides in dif­fer­ent states, and by using a series of statistical models and regressions, such as controlling for “fixed effects” or other ­factors which might cause a given state to persist in the same death-­sentencing patterns over time. Even when the analy­sis was simplified, simply determining w ­ hether a state had a statewide capital defense office or something less than that showed a strong statistical association between the states that had such offices and t­hose that experienced the greatest death penalty decline. The effect of state-­level capital trial defense was more than twice as strong as the weak effect associated with adopting life without parole. It was a much more consistent effect across all the states than any effect of the decline in murders. One sees this pattern vividly in states that a­ dopted statewide capital defender offices and then experienced a marked drop in death sentences. To be sure, all the death penalty states have experienced a decline in death sentencing over the past fifteen years,

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not just the ones that created statewide capital defenders. But consider Florida and other states that have not a­ dopted strong statewide mea­sures to ensure an adequate defense in death penalty cases.14 We find that such states have not experienced as much of a decline as states like ­Virginia and North Carolina, which have encouraged adequate defenses and have seen their death sentences drop to zero. States like Florida that continue to rely on court-­ appointed ­lawyers and that fund no statewide trial offices also continue to sentence defendants to die. Such states explain the results we found. States with shoddy l­awyers for the defense represent what remains of the American death penalty. The defense-­lawyering effect jibes with the structure of death penalty ­trials and with what we know about the importance of making a strong pre­sen­ta­tion to a jury in a capital case. Relying on locally appointed l­awyers, without central standards and resources, can be a ­recipe for the kind of incompetent lawyering that could send even innocent ­people to death row. As law professor Scott Sundby has noted, it does not take a “quantum leap” in lawyering to make the difference between a life sentence and a death sentence. The l­ awyer just needs to persuade one or two jurors to change their vote from death to life. In short, it does not take a “dream team” to turn the tide. It just takes a team, working out of a state-­supported office, which saves money by using nonlawyers like social workers and mitigation investigators. ­These national data are borne out by what I have observed reading recent capital ­trials carefully in par­tic­u­lar death penalty states: solid offices with death penalty ­lawyers can make a remarkable difference.

The New York Capital Defender Office “Justice w ­ ill now be served,” said New York governor George Pataki as he signed a law bringing back the death penalty in 1995. He

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used a gold Cross pen and a black ballpoint pen owned by police officers who had been killed in the line of duty. Pataki campaigned by promising to bring back the death penalty, which New York had not had since 1977, and he was good on his word, calling the law “the most effective of its kind in the nation.”15 The law also created a statewide Capital Defender Office with experienced ­lawyers to train and select trial l­awyers to ­handle the new death penalty cases. New York’s death penalty lasted ­until 2007, when it was formally abolished and all remaining death sentences w ­ ere changed to life sentences. Three years earlier the New York Court of Appeals had already struck down the death penalty statute, making it a dead letter. While the governor deplored the failure of the legislature to pass a new death penalty statute, many legislators expressed concerns about DNA exonerations, and polls suggested that voters supported life without parole as an alternative.16 What can we learn by studying the nine years that New York brought back the death penalty? During that time the Capital Defender Office handled almost 900 cases in which prosecutors considered seeking the death penalty. Prosecutors formally sought the death penalty in fifty-­eight cases. No defendants ­were ever executed, and about half pleaded guilty and received life sentences or less. Only nineteen capital cases went to trial. Two pleaded guilty ­after being found guilty and received life sentences; one was not convicted of first-­degree murder and another proceeded as a non-­ death penalty case. Of the fifteen cases left, seven received life without parole. The other seven ­were sentenced to death. That is already a high success rate for the defendants, and on appeal five of the seven sentences w ­ ere reversed by the New York Court of 17 Appeals. The Capital Defender Office initially had over seventy staffers and an annual bud­get of $14 million. By contrast, the state spent, according to a conservative estimate, $170 million administering the death penalty during ­those nine years.18

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In other re­spects, New York’s death penalty scheme mirrored that of other states: it was plagued by geographic and racial biases. The vast majority of the cases w ­ ere brought in upstate New York, though only 20 ­percent of hom­i­cides occurred in that part of the state. Murderers convicted for killing white victims w ­ ere twice as likely to face the death penalty as ­those convicted of killing black victims. Could the defender office be the reason why so few death sentences ­were imposed in New York? Maybe so, but one might argue that New York was never a hard-­core death penalty state. It was not a state like ­Virginia or Texas that tried to aggressively mass-­produce death sentences, often relying on shoddy procedures. Which begs the question: what happens when a Southern state, deeply committed to the death penalty and with rules designed to fast-­ track death penalty cases, switches from largely relying on court-­ appointed ­lawyers to a system with a statewide office specializing in death penalty ­trials? That is what happened in ­ Virginia, and the results ­ were startling.

The Changing V ­ irginia Death Penalty ­ irginia is the last place where one would expect to see the death V penalty in decline. It has executed, if one includes its colonial history, more individuals than any other state: over 1,300. ­Virginia has executed 112 ­people since the death penalty was reinstated post-­Furman in 1976, second only to Texas, which leads by a substantial margin, with 540 executions.19 The law in ­Virginia makes it an efficient death penalty regime. ­Virginia ­adopted “rocket docket” rules designed to move capital cases along as quickly as pos­si­ble, from trial straight to the ­Virginia Supreme Court, resulting in unusually short intervals from death sentence to execution.

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Figure 5.3 ​Outcomes in capital t­ rials in ­Virginia, 1998–2016. Sources: ­Virginia Capital Case Clearing­house, www​.­vc3​.­org​/­; data collected by author.

Despite t­ hose procedures, however, the death penalty has sharply declined. In early 2017, t­ here ­were just five individuals remaining on death row in ­Virginia, compared to a high in the 1990s of over fifty.20 Figure 5.3 shows how the number of capital t­ rials (at which ­there was a capital sentencing hearing) has sharply declined in the past ten years. And the proportion of cases involving life sentences has grown. Why is the ­Virginia death penalty disappearing? In the 1990s, ­there w ­ ere as many as thirteen executions in a single year, and ­Virginia and Texas together led the country in executions.21 Over the past de­cade the murder rate in ­Virginia has declined, but only

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gradually.22 ­There are fewer death penalty ­trials, though, and still more striking is how often prosecutors fail to get the death penalty when they try. More jurors and judges choose life sentences over death sentences. To better understand what has happened, I read a collection of the death penalty t­rials. I obtained the transcripts of each of the twenty ­Virginia cases from 2005 to 2015 in which defendants faced the death penalty at sentencing. I also read a collection of older ­trials.23

The Fastest-­E xecuting State Long known as the state that carries out executions the fastest, ­Virginia is a “trial by ambush” state, in which the defense receives very ­little information about what evidence the prosecutors plan to use at a trial. ­Virginia death penalty law is also very broad. The death penalty is pos­si­ble for fifteen dif­fer­ent types of offenses, including killing in the commission of abduction, the killing of more than one person, the killing of a law enforcement officer, and a killing for hire.24 Once a defendant has been convicted of capital murder, during the sentencing phase an aggravating ­factor must be found. In ­Virginia, ­there are just two: the vileness of the murder and ­whether the individual poses a threat of f­ uture dangerousness.25 Both are potentially quite vague. The nonexclusive list of mitigating ­factors that may be considered is longer and includes prior history, age, and ­mental impairments.26 The jury must then weigh all the evidence together.27 In 1995, ­Virginia legislators ­adopted life without parole (LWOP). This legislation might have been expected to drive down death sentences in the state, but it did not—at least not for long. The lawmakers did not design the law to change the death penalty but to broadly abolish parole for all Class One felons.28 Death sentences dropped in 1995, when LWOP took effect.29 One juror, in

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choosing life in 1996, commented, “I’m not sure what we would have done if we knew he could get out. I’m glad we had the choice we did.”30 However, the drop was temporary. Death sentences quickly rebounded and reached rec­ord levels. ­Virginia is the fastest and most “efficient” of all death penalty states, deciding appeals in a median time of less than one year ­after trial.31 The ­Virginia Supreme Court gives death penalty appeals first priority on its docket.32 ­Virginia death row inmates spend the fewest years on death row prior to their execution, with an average of just seven years, as compared with a national average of twice that amount.33 The federal courts ­were also famous for almost never granting relief to ­Virginia death row inmates. None of the rules on the books changed during the past two de­ cades. The death penalty in ­Virginia ­rose to new heights. Then somehow the bottom dropped out and the ­Virginia death penalty almost entirely dis­appeared.

Death Penalty L­ awyers in ­V irginia If you ­were a ­lawyer in ­Virginia, taking a death penalty case for an indigent person was a losing proposition. U ­ nder state law, court-­appointed l­awyers could only be paid minimal amounts to represent poor defendants in death penalty cases. For some time, the maximum fee was capped at $650, and the effective hourly rate paid to ­lawyers was just thirteen dollars per hour.34 If a county or a judge wanted to give the ­lawyer more ­because of the hours spent in the case, they w ­ ere forbidden from d ­ oing so. Consequently, given that low fee, ­lawyers had no incentive to do more than work for a few hours on a death penalty case, and it showed. Over time the amount was increased, and by 2000 the average fee was $29,500, which is still astonishingly low given how an entire team is needed to adequately work on a death penalty case.35

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­ oday, the situation has improved, and ­there is not a firm cap on T fees in ­Virginia. Death penalty l­awyers appointed by the court are paid “an amount deemed reasonable by the court,” and up to $200 per hour in court and $150 per hour out of court.36 For de­cades, notorious cases brought by ­Virginia death row inmates who had in­effec­tive ­lawyers reached the appellate courts and even the U.S. Supreme Court.37 ­Until very recently, t­hese defendants ­were executed no ­matter how badly their ­lawyers handled their cases, with just a few exceptions. Take the case of Terry Williams, convicted of murdering a man in Danville, ­Virginia. At a very brief sentencing hearing, the prosecutors presented evidence that Williams had committed a string of prior offenses (burglary, robbery, assaults, and arson). A forensic psychiatrist said Williams was not mentally ill, but was at a “borderline level of intellectual functioning.”38 The prosecutors concluded ­there was strong evidence that Williams had a violent past and would continue to act violently in the ­future: “He wishes to live. So did his victims. So did his victims. . . . ​He killed a man; he murdered a man [for] three dollars, as he said, three dollars.” The prosecutor concluded, “What kind of viciousness is it that would take a man’s life for three dollars? It shows you how dangerous this man is.”39 How did the defense respond? The ­lawyer called Williams’s ­mother, who testified he was a “nice boy at home,” who “minded me and every­thing at home,” although “when he was seven or eight years old he just fell off on top of his head.”40 The l­ awyer also called a minister and friend, who testified that Williams was not a violent person. In closing, the defense ­lawyer told the jury in a rambling statement: I ­will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself. I doubt very seriously that he thought much about

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mercy when he was in [the victim’s] bedroom that night with him. . . . ​Admittedly it is very difficult to get up and ask that you give this man mercy when he has shown so ­little of it himself. But I would ask that you would.41

­ fter deliberating for just an hour, the jury convicted Williams. A Over a de­cade ­later the Williams trial would come before the U.S. Supreme Court and change capital trial litigation forever. Only a­ fter the appeals ended did new ­lawyers uncover Williams’s horrific past. His m ­ other, who said he was a “nice boy,” was the last person who should have been relied upon to describe his upbringing. Juvenile rec­ords depicted a ­house where Williams’s parents ­were sitting on the front porch in a “drunken state,” with their c­ hildren having “all been drinking bootleg whiskey” themselves, ill-­clothed or naked. The report went on: “Several places on the floor where someone had had a bowel movement,” urine in the bedrooms, and difficulty stepping anywhere in the kitchen due to the extent of the trash. The parents w ­ ere jailed for neglect and the ­children placed in a foster home before being returned to their parents a­ fter a few years. Rec­ords described “awful” beating and abuse inflicted on Williams, who was tied to a bedpost, beaten with a ­belt while naked, and left “in the corner shaking, crying.” Williams was borderline intellectually disabled and had suffered traumatic brain injuries as a child. None of this was presented by the defense at his trial.42 Many p ­ eople have heard of Gideon v. Wainright, the landmark 1963 case in which the U.S. Supreme Court said that all criminal defendants facing a felony have a Sixth Amendment right to have a ­lawyer appointed, even if they are too poor to pay for one. However, the ruling did not mean that the ­lawyer had to be any good. Years l­ater, in 1984, in Strickland v. Washington, the Supreme Court held for the first time that the defense has more than just a

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right to counsel, but also the right to a minimally effective l­awyer. However, despite the failures of the l­awyer in Strickland’s case, a death penalty case, the Court highlighted how “scrutiny of counsel’s per­for­mance must be highly deferential,” and even if a l­awyer acted unreasonably, any “deficiencies in counsel’s per­for­mance must be prejudicial to the defense.”43 For de­cades, the Court refused to reverse a single death sentence on the ground of poor lawyering, and poor lawyering ­there was in abundance. No won­der the death penalty continued to climb each year through the 1990s. In Terry Williams’s case, for the first time the Supreme Court said enough was enough and reversed a death sentence based on finding the trial ­lawyer’s work to have been in­effec­tive and prejudicial. This was all the more remarkable ­because the case came to the court in 1999, and as a result it was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which imposed tough new restrictions on federal habeas review. The Supreme Court, in an opinion authored by Justice John Paul Stevens, explained that the defense l­awyer had failed to use “available evidence that Williams was ‘borderline mentally retarded,’ ” had failed to obtain prison rec­ords recording “Williams’ commendations for helping to crack a prison drug ring and for returning a guard’s missing wallet,” had failed to call prison officials “who described Williams as among the inmates ‘least likely to act in a violent, dangerous or provocative way,’ ” and had failed even to return the phone call of an accountant who visited Williams as part of a prison ministry program. ­These rec­ ords w ­ ere “voluminous,” and no “tactical decision” could justify not introducing them. The court declared that by virtue of the “unprofessional ser­ vice” of counsel, Williams’s Sixth Amendment rights had been ­violated. Over the dissent of Chief Justice William Rehnquist, his conviction was reversed.

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Creating Statewide Defense Offices Even ­after the apparent breakthrough in the Terry Williams case, ­little changed in ­Virginia, but then beginning in 2005 the number of capital sentences began to drop. What had changed at that point? In 2002, the ­Virginia lawmakers authorized creation of four Regional Capital Defender offices, which began taking cases in 2004.44 The lawmakers had thought, correctly, that centering capital defense in offices would save money. They w ­ ere also concerned about reports regarding shoddy and uneven defense work in death penalty cases. The ­Virginia Crime Commission found, for example, that public defenders tended to obtain shorter sentences for their clients than court-­appointed ­lawyers. The Crime Commission said, “­There’s some cost savings, but r­ eally it’s an expertise issue. It’s such a complex area.”45 In 2004, new legislation also required the adoption of indigent defense standards for capital defense l­awyers, including certification by the Indigent Defense Commission.46 Legislators w ­ ere reacting in part to a report prepared for the American Bar Association, which ­after nine months of intensive study called the system of indigent defense “deeply flawed,” with “substandard practice” “the norm,” and with pay for court-­appointed ­lawyers in ­Virginia “the lowest in the nation.”47 The four Regional Capital Defender (RCD) offices have attorneys that work on death penalty cases full time and staff specially qualified to represent capital defendants at trial. The offices have resources to investigate death penalty cases, including a focus on mitigation evidence. By all accounts, this has “significantly improved the quality of repre­sen­ta­tion available to ­Virginia’s indigent defendants in death penalty cases.”48 At least one l­ awyer from an RCD is normally appointed when the death penalty is charged, but depending on when a capital charge is made, this

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may occur well a­ fter an arrest.49 ­Virginia also expanded access to expert evidence in death penalty cases and, in 2015, tightened the standards for qualifying ­ lawyers to defend death penalty cases.50

Life Sentencing in V ­ irginia The judge seemed genuinely conflicted in the death penalty case of Cary Shane Padgett, stating, “It’s an awesome power . . . ​depriving a man of his life and liberty. It’s a big deal.” Shifting in his seat, he added, “I ­can’t undo what’s been done.” The defense ­lawyer argued, “Look at the arc of the life that Mr. Padgett has led.” “We know he had an issue at a very young age.” “A person who is so damaged that they d ­ on’t understand remorse, that d ­ oesn’t understand emotion—­I would suggest that diminishes moral culpability.” ­After a moment of silence, he added, “Can it give rise to mercy?” To which he added, “I ask only for the modicum of mercy of a life sentence.” The prosecutor responded, “What mercy did he show? . . . ​He showed no mercy at all.” Ultimately, the judge deci­ded to grant a life sentence.51 Such arguments at the sentencing phase highlight the difference between skilled death penalty ­lawyers and less experienced lawyers. I examined e­ very death penalty trial in ­Virginia between 2005 and 2015, and in eleven of ­those twenty-­one cases, the judge or jury chose life without parole. In about half of the ­trials, the regional capital defenders handled the cases. From 1996 to 2004, the ­trials that I examined had very short sentencing ­trials, averaging less than two days long and with most of the witnesses put on by the prosecutors. In sharp contrast, the sentencing phase at recent ­Virginia capital ­trials was usually longer than any guilt phase, averaging more than four days long. The prosecutors ­were

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eclipsed, too, since, on average, the defense called more witnesses than the prosecution. “­He’ll die in jail, that’s the bottom line,” said Joshua Andrews’s defense attorney. “­We’re ­going to ask you for mercy. . . . ​­We’re ­going to ask you to have him spend the rest of his life in a 6-­by-8 cell.” The prosecutor responded, “He’s more dangerous, more violent, more cold and calculated than he has ever been in his life.”52 Indeed, the prosecutor declared to the jurors, “You are in all likelihood now looking at the single most dangerous person you ever have or ever w ­ ill encounter in your life.”53 Yet the regional defender’s office presented evidence through multiple experts (mostly psychiatrists) that Andrews had experienced a “perfect storm.” He had been badly burned as a child, had a mentally ill m ­ other, and as a child had developed ADHD, PTSD, and Tourette’s, among other ­mental illness prob­lems.54 The jury sentenced him to death, but on appeal his l­awyers won a new trial by showing how the trial judge had refused to allow the ­lawyers to pres­ent to the jury some of the most power­ful mitigation evidence. Ultimately, Andrews pleaded guilty to receive life without parole.55 Still more cases never reached a trial in ­Virginia. In a 2014 case in ­Virginia Beach, the defendant entered a plea to reduced charges ­after l­awyers from the regional capital defender listened to tapes of thousands of hours of jail phone calls. It turned out that jail­ house in­for­mants ­were making detailed (and recorded) plans with relatives to obtain public information about the murder so they could fabricate evidence against the defendant; they talked about how “the cooperation ­thing” is “the key to . . . ​freedom,” and how prosecutors and police “just want convictions.”56 The regional jail was proven to be a “snitch factory.”57 This is precisely the sort of work only an adequately funded defense team can undertake. Had the l­awyers not spent countless hours poring over ­those phone rec­ords, undermining the credibility of the jail­house in­for­mants,

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the case might have gone to trial and resulted in a death sentence. This, in a single example, is the defense-­lawyering effect.

North Carolina The North Carolina that “Amer­i­ca’s Deadliest Prosecutor” knew is no more. In the 1980s and 1990s, North Carolina was one of the leading death penalty states; ­today it looks much like neighboring ­Virginia. Starting in around 2000, death sentences began a precipitous decline. Life was always imposed more than death at capital t­ rials in North Carolina, but both sharply declined, as Figure 5.4 shows, and now ­there are only a handful of death sentences each year. In 2015 ­there w ­ ere four capital ­trials but no death sentences; in 2016 t­ here was just one death sentence. What changed in North Carolina? The changes in North Carolina look much like the changes that occurred in ­Virginia at the same time. In 2001, similar to

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Figure 5.4 ​Capital ­trials in North Carolina, 2000–2015. Source: North Carolina Center for Death Penalty Litigation and Office of Capital Defender.

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what happened in ­Virginia in the following year, a statewide North Carolina Office of the Capital Defender was created. Rather than creating regional offices that actually handled death penalty t­ rials, the North Carolina law established a qualification pro­cess and an approved roster of death penalty l­awyers. And unlike in ­Virginia, trial judges cannot appoint ­lawyers in death penalty cases; the Office of the Capital Defender decides which ­lawyers represent a defendant and appoints one “as soon as feasible” a­ fter capital murder is charged.58 A defendant w ­ ill have an expert l­awyer at the very first hearing in front of a judge. The central Office of the Capital Defender consults and assists in the investigation and in plea bargaining. If a case is ­going to trial they send in “cross-­examination swat teams” and other experts to assist. ­There ­were other changes at about the same time. In 2002, the law was changed to give prosecutors the discretion to decline to bring a case as a death penalty case, even if it was potentially death eligible. Previously, district attorneys ­were required to proceed as if it was a death penalty case. Also, a new statute prohibited the death penalty prosecution or the execution of the intellectually disabled. It is pos­si­ble that a de facto moratorium on executions also affected prosecutors’ choices to seek the death penalty. During this time, t­ here ­were also four death row exonerations. ­Lawyers at the Office of the Capital Defender tell me that mock jurors began to express more concerns about wrongful convictions. The Racial Justice Act, although repealed in 2013, encouraged examination of racial disparities in death sentencing, which may have affected prosecutors’ actions. Challenges to lethal-­ injection protocols resulted in new statutory protocols and may also have had some effect in slowing down executions.59 Nevertheless, many other states had lethal-­injection challenges and, worse, high-­profile botched executions, leading to outright moratoria in executions. So while many f­actors played a part, the defense-­

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lawyering effect offers a compelling explanation for the North Carolina decline in death sentences.

Mitigation How many hundreds of p ­ eople have been executed ­because, as Stephen Bright has compellingly argued, they did not commit the worst crimes, but they w ­ ere unfortunate enough to have the worst ­lawyers? How many tens of thousands or hundreds of thousands linger ­behind bars in non–­death penalty cases having barely met their l­awyers and having received incompetent repre­ sen­ ta­ tion? How many of t­hose w ­ ere innocent? Or w ­ ere guilty but deserved a lighter sentence? For years, the American death penalty has operated by allowing subpar l­awyers to do l­ittle or no work to defend their clients, particularly at the crucial stage where the question before the judge is life or death. Mitigation evidence is not “double-­edged.” It should never be deemed “reasonable” for a ­lawyer to fail to pursue mitigation evidence, although deciding how to properly pres­ent such evidence does require real care and precision. The ­lawyers in Terry Williams’s case had less than two months to prepare for trial, and the second l­awyer was appointed one month before trial. They could not be remotely expected to investigate a person’s complete life story, starting with school and prison and ­family rec­ords, all by themselves. ­Today, it is standard practice to give ­lawyers the funds to hire separate investigators to assist with that time-­consuming work. A mitigation specialist is trained to investigate ­mental health and clinic rec­ords that ­lawyers may not understand. They “have the time and the ability to elicit sensitive, embarrassing and often humiliating evidence (e.g., ­family sexual abuse) that the defendant may have never disclosed.”60 The American Bar Association (ABA) Guidelines, updated in 2003 and again in 2008, and cited by the Supreme Court,

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highlighted that from a death penalty case’s inception a defense team is urgently needed.61 ­There should be at least two ­lawyers, one lead and one associate. ­There should be at least one investigator. ­There should be at least one mitigation specialist, a person with expertise in developing mitigating evidence. And t­ here should be at least one person with training in screening ­people for m ­ ental health disorders or impairments.62 Social workers have skills that ­lawyers usually lack. ­Lawyers typically do not have the skills required to assem­ble a careful life history or mitigation investigation. Indeed, as death penalty ­lawyer Russell Stetler puts it, few l­awyers have had opportunities to see the “mystery” of how “empathy-­evoking evidence” can transform jurors.63 Even regular criminal investigators, who often have a law enforcement background, may lack sufficient experience with social ser­vices and medical rec­ords. Furthermore, it saves money to have t­hese nonlawyer social-­work specialists ­doing the time-­ consuming background investigation work, rather than the ­lawyers. As one federal judge bluntly put it, “The failure to retain such a specialist places the responsibility in the hands of counsel, who is less qualified, more costly, and has less time to gather what is needed.”64 Legislators now have a greater understanding that they have to give the defense the ability to comply with ­these ABA guidelines—as well as the funding to allow the defense to do its job. Put succinctly, the defense-­lawyering effect occurs b ­ ecause teams can make the case for mercy. When the jury hears a real case for mercy, the defense can win.

It Takes a Team In Amer­i­ca, the wealthy can hire a Dream Team with g­ reat l­ awyers, while indigent defendants have bargain-­basement l­awyers thrust on them by the court. The difference that a team of l­awyers can

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make in death penalty cases in ­Virginia, in North Carolina, and in high-­profile terrorism ­trials is the difference between life and death. As Supreme Court Justice Ruth Bader Ginsburg once stated, “­People who are well represented at trial do not get the death penalty.”65 For far too long, the public has been told a story that the ­lawyers aggressive enough to get appointed to death penalty cases presumably had talents that ­lawyers appointed to routine cases lacked. That’s hardly the case, and arguably the reverse was, and in some places still is, true. In death penalty cases, for de­cades, subpar ­lawyers w ­ ere allowed to do minimal work, excused their failures by blaming their clients, and rather than seek or pres­ent complicated mitigating evidence euphemistically called it a prob­lem of “double-­edged” evidence. Recall that the sleeping ­lawyer who represented Calvin Burdine sent nine ­others to death row in Houston while the courts considered just how conscious a defense ­lawyer needed to be. Another commonly appointed Houston l­awyer sent sixteen clients to death row while ­running a series of saloons and bars.66 ­Those ­lawyers also represented many hundreds or even thousands of other criminal defendants in non–­death penalty cases that have never been carefully scrutinized. The endemic poor repre­ sen­ta­tion by defense l­awyers was one of the reasons that the authoritative American Law Institute, which set out the l­egal framework ­adopted by the U.S. Supreme Court in the modern death penalty, voted in 2009 to withdraw the section of its influential Model Penal Code concerned with capital punishment.67 The understood truth is that it takes not just a team, but an adequately funded team. Consider Georgia. It passed a law creating a statewide public defender system in 2003 and a capital trial defense office in 2005. However, in 2008 the office’s bud­gets ­were reduced amidst statewide public defender bud­get cuts. The office asked for $10.5 million and received $4.5 million, down from $7 million in 2005. They could not hire staff. L ­ awyers,

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unsure of ­whether they would get paid, quit. In a 2007 case, a judge removed capital defenders from a case when they said they ­were not prepared for lack of funding. In a 2010 case, the ­lawyers asked the judge to bar the state from seeking the death penalty ­because the office could not pay their l­awyers, expert witnesses, or investigators. In a 2012 death penalty case, a judge called the statewide office “systemically broken.” Only a handful of public defender offices in the entire country use a team-­based approach for cases other than death penalty cases. ­Those offices include the Bronx Defender and Public Defender Ser­vices in Washington, D.C., which have investigators on staff. Even for ­those offices, it is not pos­si­ble to do a full-­scale team defense in ­every case; they have to prioritize. And ­those offices are the exceptional ones that have been able to attract nonprofit funding and top ­lawyers. Slowly, more public defenders may be catching on and finding funding to use ­these investigative techniques. A truth is slowly taking hold: it should not just be the wealthiest, the most privileged, or the most articulate or sympathetic defendants who obtain mercy. ­Until the team approach catches on, what does the experience of death row defendants suggest about the vast bulk of criminal cases of all types? ­There is a nickname for the phenomenon: Meet ’em and plead ’em. In the United States, ­lawyers negotiate over 95 ­percent of criminal cases using plea bargains, and some barely meet their clients. In misdemeanor cases t­here is no right to a ­lawyer, and none are provided in many jurisdictions. Many public defenders are so underfunded and overwhelmed they simply cannot meet with clients, they have waiting lists, or judges allow prosecutors to negotiate plea deals with p ­ eople who have not yet met a ­lawyer. The defense-­lawyering effect is real and it is substantial. Teams adequately skilled and funded with investigators and social

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workers, and not just l­ awyers, can harness that effect. This insight has profound implications for reform of the criminal justice system. More legislatures have considered diverting mentally ill ­people for treatment, releasing low-­risk offenders, relaxing sentencing guidelines, and generally allowing more individual considerations to play a role in criminal cases. ­These developments make it all the more impor­tant to give the defense adequate resources, including investigators and social workers.68 Just changing laws cannot undo de­ cades of mass incarceration. Individual ­people must be given a chance to tell their story—­and to do that it takes a team.

6 MURDER INSURANCE

Crane County is in a rural oil-­producing part of West Texas. It has just 4,000 residents, almost all of whom live in the county seat, Crane City, where the only post office and court­house are located. “I’ve always thought Crane was a safe place to live, but we just ­didn’t know what was happening last night,” said a resident of Crane City in July 2008. In what goes for Crane’s downtown, a man named Gillie Thomas Thurby, Jr., assaulted a w ­ oman. Then the Crane police heard he had a knife to a man’s chest across town. When they found that victim, he was fatally wounded. ­After a search, the police came across Thurby in his red Dodge Intrepid. Thurby rammed into the police cruiser, crossed a highway median, and began a high-­speed police chase through neighboring Upton County and then into Pecos County. Thurby abandoned his car in a pasture and took off on foot. The police tracked him down and fi­nally arrested him in a ware­house attic in the small town of Iraan, Texas.1 “This guy w ­ asn’t even a local guy,” said Crane County Judge John Farmer. “He just shows up ­here.” ­There had not been a Crane County capital murder case in anyone’s recent memory. Now the small county would have to shoulder a costly trial. “That’s a million dollars we d ­ on’t have,” said the judge. Fortunately for Crane County taxpayers, however, they would not have to borrow that

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kind of money. They had just paid $4,000 into a scheme nicknamed “murder insurance.”2 West Texas is a vast, arid part of the state, ranging from the Chihuahuan Desert up to the Texas Panhandle and the Rolling Plains. In the nineteenth c­ entury, the West Texas Hill Country was sometimes still called Comancheria, reflecting the fact that the Comanche had long lived ­there. Legendary Judge Roy Bean held court in his saloon in Val Verde County. Bean was a hanging judge with a poor rec­ord by ­today’s Texas death penalty standards: apparently, at least one of the two men he sentenced to death by hanging escaped. ­Today West Texas is still mostly rural, though its eighty counties contain several cities with populations over 100,000, including El Paso, Lubbock, and Amarillo. Nor is the area ­free of serious crime; it has averaged about twenty-­five capital murders a year.3 In rural West Texas counties, finding good ­lawyers to represent ­ people facing the death penalty poses special challenges. ­There are shortages of qualified l­awyers. As in Crane County, the cost of a death penalty trial can be more than a county can ­handle. ­Today, the defense is entitled to call expert witnesses to assess the defendant’s m ­ ental health and hire investigators to examine the defendant’s life story for mitigating evidence. As a result, the district attorney of Randall County, Texas, explained, “While I know that justice is not for sale, if I bankrupt the county, and we simply ­don’t have any money, and the next day someone goes into a daycare and guns down five kids, what do I say? Sorry?” The Nacogdoches County, Texas, district attorney commented, “I cannot put my head in the sand and pretend like this i­sn’t ­going to be a significant expense to my county.”4 A long-­time public defender, Jack Stoffregen, and a local judge came up with a solution: murder insurance. Stoffregen was a public defender in Lubbock County, Texas. He started practice in

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1975 and recalls how his first capital trial put him “in over my head.” The client was a man named Clarence Lackey. In that case, ­mental health was a major issue. The trial judge had refused to award funds for outside experts to evaluate Lackey and instead sent him to Big Spring State Hospital. The judge allowed only $500 for investigation and expert testimony. When Stoffregen asked for more funding for “vari­ous experts in the fields of medicine, psychiatry, and psy­chol­ogy,” the judge denied his request for $1,000. Stoffregen managed to hire a psychologist who would have testified that Lackey had organic brain damage. The judge refused to allow the expert to testify. Lackey was sentenced to death, but his case was reversed on appeal ­because the judge refused to allow the expert. Stoffregen recalled, “[T]he judge rewarded me by assigning me to retry the case.” Lackey was resentenced to death in 1983 and executed in 1997. The case still comes up t­oday, ­because in 1995 the U.S. Supreme Court for the first time considered—­and refused to hear—­what ­lawyers now call “Lackey claims,” or the argument that excessive delays in carry­ing out an execution can itself be cruel and unusual punishment.5 Stoffregen’s experiences caused him to rethink how death penalty cases w ­ ere handled in rural Texas—­largely by court-­appointed ­lawyers on a case-­by-­case basis. In 2007, Stoffregen started a new office dedicated to h ­ andling the defense in death penalty cases based on the concept of “murder insurance.” The operation is “kind of like a risk pool,” Stoffregen explains. Lubbock’s court administrator knew that the average death penalty case cost $50,000 if pled out, while a full-­fledged trial cost from $100,000 to $500,000. Added to that ­were costs of appeals and postconviction proceedings. Lubbock, with a few neighboring counties, deci­ded to fund an insurance scheme. A regional office, staffed with a few capital defense l­awyers, was funded by counties paying annual “premiums” based on population and average capital murder fil-

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ings. The formula worked like this: half of the annual “murder insurance” premium would be based on each county’s percentage of population, and the other half would be an estimate of the operating cost based on how many capital cases each county had filed over the past few years. To cover twenty-­six capital cases a year in West Texas, it would cost about $1 million a year. The state stepped in to help. The Texas Indigent Defense Commission said it would pay 100 ­percent of the costs for the first year. Each year the state would pay 20 ­percent less, so that by year five the counties would pay for the entire office. The new West Texas Regional Public Defender for Capital Cases began taking cases in 2008. The office a­ dopted a dif­fer­ent way of d ­ oing death penalty litigation: a team approach. ­Lawyers, investigators, and experts would work together. Before they created the regional office, a judge assigned a local l­awyer to a case, who then began looking for a second ­lawyer to help, ­after which they would call around to try to find an investigator and experts. Now the team is already in place, so they can start work in a m ­ atter of days rather than months. In the regional office, ­there is no pecking order, “no difference between an attorney and one of our l­egal assistants,” Stoffregen explains, and they share an office, so they can meet to collaborate. Using more nonlawyers is also far more eco­nom­ical. They investigate mitigation at the same time as the guilt phase. A PhD nonfiction writer works with investigators and mitigation specialists to help document defendants’ stories in a compelling way. A volunteer from the Texas Tech Theater Department videotapes the ­lawyer’s work and helps them apply concepts from communications research. As of this writing in 2017, only five of the office’s cases had gone to trial. Other counties clamored to join. “We simply thought it was the prudent ­thing to do,” Deaf Smith County Judge Tom Simons said about the decision to join. The cost savings ­were irresistible. No one had to send murder insurance salesmen around rural Texas.

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Word spread around the state, and the office started fielding calls from more and more counties seeking to participate. The Texas Indigent Defense Commission helped the office to expand southwest, then southeast, and then northeast. The office soon doubled to include twice as many counties, reaching 158 of Texas’s 240 counties. By 2010, all counties with a population of less than 300,000 ­were eligible to join, while the fourteen largest counties in Texas ­were not.6 “This is exceptional and represents an unparalleled level of cooperation among local governments,” said the executive director of the Task Force on Indigent Defense. ­Today, the still-­growing office, now called the Texas Regional Public Defender for Capital Cases Office (RPDO), has eight satellite offices around the state.7 Though some Texas judges still “refuse to appoint us,” since some “judges want l­awyers they know,” the reasons to use the office are compelling. The average annual cost of membership for Texas counties with a population below 50,000 is just $5,124 per year. A single capital case would cost $73,571 on average. And a capital trial costs an estimate $280,734 on average. By comparison, average costs billed by private l­awyers in capital cases in Texas range from $1.2 to $2.3 million, according to one estimate.8 Of course, ­these are just the defense costs. Prosecutors and the courts themselves also face enormous costs if death penalty cases go to trial. The office has an excellent track rec­ord. Only one in twenty-­six of the office’s cases through mid-2013 resulted in a death sentence.9 In general in Texas, defense l­awyers do not usually win at trial. A 2012 study of Texas death penalty cases found that 99 ­percent of capital t­ rials result in a conviction, and 80 ­percent result in a death sentence.10 Stoffregen’s office succeeds by keeping most of its cases out of court. Almost three-­quarters of the office’s cases w ­ ere pled, compared to “just 21 ­percent” of cases that the office does not ­handle. That means courts and prosecutors save costs.

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They get better results with less. A study of private court-­ appointed ­lawyers in death penalty cases found that they took 486 hours (sixty-­one staff days) to ­handle an average capital plea. The public defender team members spent 43 ­percent more hours per plea on average (eighty-­seven staff days). Although the public defenders expended a greater number of hours per case, they spend much more on investigating than on expensive lawyer-­ hours. They “invest up to three times more of the defense bud­get on mitigation than their peers in private practice,” which the study found “likely contribute[s] to the lower rates of trial and death sentences” for their clients. Furthermore, “[u]sually the same day we are appointed, we have one person, and sometimes two or three, who are able to go and see the client.” Whereas court-­appointed ­lawyers are at the mercy of individual judges and may not be allowed to hire a well-­functioning team, the RPDO’s bud­get covers attorney salary, mitigation expenses, and investigation. The Texas death penalty has all but dis­appeared. In 2016, t­ here ­were four new death sentences. Before that, ten to fifteen death sentences a year ­were common ­going back a de­cade, and in the 1990s forty to fifty death sentences a year w ­ ere routine. Texas has executed more p ­ eople in modern times than any other state in the country, and it did not get to first place by sentencing only a few new ­people to death per year. As discussed in Chapter 5, other ­factors are also at work, including the decline in murders and crime in the 1990s. ­Whether the regional defender w ­ ill continue to receive adequate support from the state legislature and individual counties remains to be seen. Yet it is not just Stoffregen’s office that has changed the face of the death penalty in Texas. The bulk of Texas death sentences had always come from a handful of large counties, like Dallas County and Harris County, which includes the city of Houston, in which no public defender office has been established to ­handle capital

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cases.11 Even in the largest counties in Texas, the ones that cannot take part in the murder insurance scheme, the numbers of death sentences have sharply dropped. And this is true across the country: the death penalty is increasingly concentrated in a small group of counties, mostly larger and wealthier ones that can afford to seek the death penalty. Even in t­ hose stalwart counties, the death penalty is on the decline. This chapter explains why.

The Splintering of the Death Penalty In the 1990s, several hundred ­people ­were sentenced to death each year in the United States. In 2015, ­there ­were just fifty-­one new death sentences, and in 2016 t­ here ­were just thirty-one. The rapid drop in death sentences is even more stunning at the local level. Even within the biggest death penalty states, death sentences mostly come from a shrinking group of individual counties. As Figure 6.1 illustrates, death sentences come from a shrinking group of individual counties, for example, Riverside County, Cal-

Figure 6.1 ​Word cloud of death sentences by county, 1996–2015. Source: Data collected by author.

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ifornia, and Duval County, Florida. Only sixteen counties sentenced an average of one person to death each year from 2010 to 2015. Even the counties like Harris County, Texas, that used to lead the country in death sentences have experienced drops—in fact, it is in ­those counties that the decline has been the steepest. With counties such as Harris County—­deemed by one judge to be “the buckle” in Texas’s “death ­belt”—­slowing down their machinery of death, California counties such as Los Angeles, Riverside, and Orange assumed greater prominence.12 In 2015, more than one-­quarter of the death sentences imposed in the country came from California. Yet the State of California has not carried out an execution in a de­cade, and it is unlikely to do so in the near ­future. ­There are over 3,000 counties in the United States. Some states, for example, Texas, have many counties (254), while ­others, like Delaware (three), have just a few. And some states, like ­Virginia, include cities that are incorporated separately from surrounding counties. Each of ­those counties or other local jurisdictions has local criminal courts, where, day in and day out, prosecutors and defense ­lawyers negotiate and litigate criminal cases, and judges and juries convict defendants. Out of t­hose 3,000-­plus counties, very few w ­ ere ever death penalty–­seeking jurisdictions. ­Today, what remains of the American death penalty is concentrated in just a few dozen scattered counties that are typically larger, wealthier, and po­liti­cally conservative. Over the last twenty years, the pace of change has been remarkable. In the past twenty years, almost 800 counties imposed death sentences. Just in the five years from 1996 to 2000, 536 dif­fer­ent counties imposed death sentences. That dropped to 367 counties from 2001 to 2005, to 304 from 2006 to 2010, and just 203 counties from 2011 to 2015. In 2015, only thirty-­eight counties sentenced p ­ eople to death, and only nine counties sentenced more

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Figure 6.2 ​Number of counties with death sentences, 1991–2016. Source: Data collected by author.

than one person to death. In 2016, only twenty-­seven counties sentenced ­ people to death, and just one county, Los Angeles County, sentenced more than one person to death. Figure 6.2 visually captures this dramatic decline. The picture looked completely dif­fer­ent in the 1970s, 1980s, and early 1990s, when the death penalty was on the rise. Over 5,000 death sentences ­were handed down from 1973 through 1995. Professors James Liebman, Valerie West, Jeffrey Fagan, and a team of their colleagues examined that time period in detail in landmark studies.13 They found that the vast bulk of counties did not sentence anyone to death, but death-­sentencing counties ­were far more widely dispersed, so that even rural counties regularly imposed death sentences. In the two de­cades since the end of the time period that they studied, not only have fewer counties imposed death sentences, but death sentencing has been increasingly concentrated in a shrinking group of counties. Having hand-­ collected twenty-­five years of death-­sentencing data and informa-

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tion about which counties sentenced which p ­ eople to death, I sought to study what explains this changing geography of the death penalty, and Alexander Jakubow and I analyzed the patterns statistically. First, we saw that rural counties have almost entirely dropped out of death sentencing. We found that population density was strongly associated with death sentencing across a series of statistical models. The increased cost of the death penalty, particularly in an era when the person facing the death penalty increasingly has an adequate defense, may explain why small counties have stopped engaging in the practice. Second, murder rates play a role in death sentencing. We studied just the counties in states that have (or at the time had) the death penalty. Using a range of dif­fer­ent models, and examining detailed data on murder rates from the Centers for Disease Control and Prevention (CDC) and the Federal Bureau of Investigation (FBI), we found a statistical connection between county-­level murder rates and death sentencing. The decline in murders may have impacted death sentencing at the county level. Third, counties with large black populations engage in far more death sentencing. Many studies have found that death sentences in the modern era have disproportionately occurred in cases in which the victim is white. We found that an increase in rates of hom­i­cides with black victims are not significantly associated with an increase in death sentencing, while rates of hom­ic­ ides with white victims are significantly associated with death sentencing. Thus, counties do not simply respond rationally to murder rates. Instead, patterns of racial bias affect how they respond to murders. Fourth, we found that entrenched practices or inertia, mea­sured by the prior number or average numbers of death sentences in a county, strongly explains which counties still seek death sentences.

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The “muscle memory” of counties powerfully affects death sentencing. In summary, we found: (1) heightened geographic concentration of death sentences in densely populated counties; (2) death sentencing based in part on murder rates; but also (3) capital sentencing that reflected racially biased demographics and victimization; and (4) path-­dependent practices in death-­sentencing counties. ­These four central findings do not paint a pretty statistical portrait of death sentencing ­today. Population Density The death penalty map has completely changed, and t­ oday death sentences continue to be levied in only a few outlier counties. Not only have death sentences sharply declined at the state level, but even within the biggest death penalty states, fewer and fewer counties still impose death sentences. We found a consistent and strong statistical correlation between population density and death sentencing during the time period from 1990 to 2015. The average population of death-­sentencing counties in the 1990s was about 470,000 p ­ eople, while by 2004–2014, it averaged about 800,000 ­people. The population density of death-­ sentencing counties averaged 650 ­people per square mile in the 1990s, while by 2004–2014 it averaged over 800. The average population, based on 2010 census figures, of the counties imposing death sentences in 2015 was over one million p ­ eople. Figure 6.3 illustrates this trend. Take ­Virginia, a state where in the 1980s and 1990s, dozens of small counties regularly imposed death sentences. ­These included places that few ­people ­will have heard of who have not spent time in rural ­Virginia: Accomack County, the City of Appomattox, Chesterfield County, Culpeper County, and Pittsylvania County. In the de­cade from 2005 to 2016, only seven counties imposed

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Figure 6.3 ​Average population of counties with death sentences, 1990–2014. Source: Data collected by author.

any death sentences, and most ­were large, wealthy counties, like Fairfax County, the largest county in ­Virginia, and ­Virginia Beach, the largest city in ­Virginia. Many other large counties, though, for example Arlington and Loudon counties in Northern ­Virginia, have not seen a capital trial in over a de­cade. Figures 6.4, 6.5, and 6.6 show how even in its heyday, the death penalty was not imposed in most counties. ­Today, hardly any counties still impose death sentences. Indeed, as of this writing, ­Virginia has not had a single death sentence in over six years. The smaller, poorer counties do not bother seeking the death penalty anymore, and for the same reasons that murder insurance took off across rural Texas, cost may be an impor­tant ­factor in this trend. Figure 6.7 shows that average income in t­ hose counties increased from ­under $19,000 per year to over $40,000 per year. Robeson County, North Carolina, home to Amer­ic­ a’s Deadliest Prosecutor, is not deadly ­today. Since the North Carolina death penalty was reinstated in 1977, twenty-­one ­people have been sentenced to death from Robeson County. Over the years, most of

0 capital sentences

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Figure 6.4 ​­Virginia death sentences by county, 1987–1995. Source: Data collected by author.

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Figure 6.5 ​­Virginia death sentences by county, 1996–2004. Source: Data collected by author.

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Figure 6.6 ​­Virginia death sentences by county, 2005–2016. Source: Data collected by author.

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$40,000

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Figure 6.7 ​Average income of counties with death sentences, 1990–2014. Source: Data collected by author.

t­hose p ­ eople had their death sentences reversed in the courts. Three p ­ eople from Robeson County remain on death row, but all ­were sentenced in the 1990s. One Robeson County inmate was executed in 2003, and another died of natu­ral c­ auses in 2004. The last person to be sentenced to death in Robeson County was sentenced in 1997. What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger, wealthier, and more densely populous counties. But even ­those outlier death-­ sentencing counties are experiencing a rapid decline. Indeed, the largest declines have been experienced in the counties that sentence the most ­people to death. Why is that? Murder Rates One reason is that large counties have experienced larger declines in murder rates. Our statistical analy­sis supported the conventional wisdom that ­there should be more death sentencing in more violent areas. Examining detailed data on murder from the

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10,000 9,000 8,000 7,000 6,000 5,000 4,000 3,000 2,000 1,000 0 1990

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Figure 6.8 ​Total hom­i­cides and death sentences in counties with death sentences, 1990–2014. Source: Data collected by author.

CDC and the FBI, we found a connection between death sentencing and murder rates, in addition to population density and demographics. We observed this connection within counties, but also when comparing counties within states. Since it can take some time for a case to proceed to trial and a sentence to be imposed, we lagged the data. When we did this, we observed a larger connection between murder rates and death sentencing. Declining murder rates may have helped to push death sentencing over a tipping point. The relationship between murders and death sentencing is complex, though. Figure  6.8 illustrates how much total numbers of murders fell in ­those counties. The steady decline in death sentences looks slight by comparison (you can barely detect the downward trend), since ­there are so few death sentences as compared with murders. As murder rates dropped beginning in the 1990s, death sentences also fell—­but death sentences declined more steeply, from over 300

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a year to just thirty-one in 2016. The strength and significance of ­these findings erodes in recent years, starting in 2008. The effect of murder rates may have become much less relevant in the last de­cade or so. Or it may also be that the numbers of death sentences are now so small that it is hard to observe the relevant connections. The next set of findings introduces even more complexities and concerns regarding the relationship between murders and death sentences. Race Discrimination The third major ­factor observed in our statistical analy­sis of county death sentencing was a pattern of racial bias. At the state level, race discrimination in death sentences has long dominated death sentencing, as study a­ fter study has found. ­These troubling patterns are also pronounced at the local level.14 We found a strong correlation between the black population in a county and the number of death sentences in a county. This racial pattern holds up across a range of statistical models. In addition, while we found that murder rates ­matter, they also ­matter in a troubling way: ­there is a race-­of-­victim effect similar to that observed in many studies of death sentencing. Most murders are within-­race in this country. About half of the victims of murder are white and half are black, but, for example, in 2013, only about 400 of 3,000 murders involving white victims involved black offenders.15 The counties that have more white victims of murder sentence substantially more p ­ eople to death on average. In contrast, the counties that have more black victims of murder do not have more death sentences; the effect of the black hom­i­ cide rate was statistically insignificant in all the models we tested. We observed a strong white-­lives-­mattering-­more effect where death sentencing is concerned. Par­tic­u­lar counties stand out in their biased patterns of death sentencing as to the race of defendants. Take Riverside County,

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California, in which 80 ­percent of ­those who received death sentences from 2010 to 2015 w ­ ere ­people of color. Or take Duval County, Florida: over 60 ­percent of death sentences since 1991 have been imposed on black defendants, compared to 33 ­percent in the rest of Florida. In 2010, ­after a new prosecutor took office, that figure jumped to over 80 ­percent. Meanwhile, one Duval County judge ­faces discipline ­because of comments he made, including that he “wished all blacks could be sent back to Africa on a boat.”16 Or look at Mobile, Alabama, which has a long history of lynching, including the last KKK lynching in the country, in 1981, and a long history of illegal race discrimination in jury se­ lection. Alabama long allowed judges to override a jury’s decision to impose life and not death. A judge in Mobile who has overridden juries in more death cases than any other declined to sign a bail application in a case b ­ ecause he wanted to “know the cli17 ent’s ‘color.’ ” In spring 2017, Alabama lawmakers fi­nally enacted legislation to bar judicial overrides, which the Governor plans to sign.18 Entrenched patterns of bias help to explain why death sentencing is concentrated in such a small number of counties. They also help to explain why most of the counties that still impose death sentences are large and urban. The most notorious small county in the group of counties that still imposed death sentences regularly in the past de­cade is Caddo Parish, in northwest Louisiana. It was nicknamed “Bloody Caddo” ­after the Civil War ­because it was the most violent parish in the state and had the second most lynchings in the country.19 The Confederate flag flew at the Caddo Parish court­house ­until 2011 atop a monument to “The Confederacy’s Last Stand.” More recently, although Caddo Parish has just 5 ­percent of Louisiana’s population and of its murders, almost half of death sentences in the state came from the parish. Yet Caddo Parish imposed no death sentences in 2015 or

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2016. Its longtime prosecutor, who once declared that the parish should try to “kill more p ­ eople,” left office. It is just not sustainable for a handful of outlier counties to keep an entire state (or country’s) execution machinery ­going. Muscle Memory Even among the large counties that still impose death sentences, which do and which do not is largely a function of the preferences of a few gung ho prosecutors. A large body of research has documented the power­ful role that the preferences and proclivities of prosecutors play in death sentencing in a wide range of death penalty states.20 When we studied inertia among counties, we found very strong connections between the numbers of death sentences in the prior year and in the years before and the likelihood that a county would sentence someone to death.21 It is quite troubling that inertia is such a power­ful force that explains who gets sentenced to death. Law professor Lee Kovarsky calls this “muscle memory.” The attitudes and politics of prosecutors largely decide who lives and who dies. Prosecutors get used to seeking the death penalty, they build a team of ­lawyers to take death cases to trial, and they keep ­doing it reflexively. ­There are over 2,300 prosecutors in the United States, some of whom have been very aggressive in seeking the death penalty.22 It is not just the prosecutors acting alone, though, who build a death-­sentencing machine. Amenable judges, inadequate defense ­lawyers, patterns of bias, and friendly jurors make it pos­si­ble for prosecutors to keep flexing their muscles. In general, our criminal justice decision making happens at the local level. That said, most states give prosecutors enormous discretion over ­whether or not to file criminal charges, and they give prosecutors carte blanche authority to seek the death penalty. The rec­ord for death sentences

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in a single year goes to Philadelphia County, which sentenced twenty p ­ eople to death in 1983 (followed by Harris County, Texas, which sentenced seventeen ­people to death in 1978, fifteen ­people each in 1983 and 1996, and sixteen in 1994). The flip side of the inertia effect is that once counties stop seeking death sentences, they tend to keep it that way. In recent years, notoriously pro–­death penalty prosecutors have retired or have been defeated in elections. “Cowboy Bob” Macy, the district attorney in Oklahoma County, secured fifty-­four death sentences and twenty executions while holding office from 1980 to 2001. Along the way, judges called out Macy’s “per­sis­tent misconduct,” three ­people w ­ ere exonerated from death row, and almost half of the capital cases w ­ ere scrutinized due to flawed forensic testimony. Macy retired in 2001, and from 2010 to 2016 the county produced just three death sentences.23 The p ­ eople who are still sentenced to death face aggressive, big-­ muscled prosecutors but are represented by weak, resource-­starved defense ­lawyers. Take Duval County, Florida, one of the sixteen counties that produced more than five total death sentences from 2010 to 2015. A detailed report by Harvard Law School’s Fair Punishment Proj­ect found that the sentencing phase at ­those ­trials lasted on average just one day. The defense typically put on only a few hours of mitigation evidence, a far cry from the comprehensive evidence that a good defense team pres­ents. Public defenders are elected in that county. The public defender who held office during that time frame, u ­ ntil he was defeated in fall 2016, had promised to be “less confrontational” with police and promptly fired the experienced death penalty ­lawyers in the office. In past cases, the defense in Duval utterly failed to put on evidence of organic brain damage and disability, leading to reversed death sentences. Nine of the sixteen top death-­sentencing counties had the same average defense sentence case of just one day.24 Thus, the defense-­lawyering effect is

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also pronounced at the county level. Perhaps it takes an outside shock, like turnover of the lead prosecutor or better defense lawyering, to break the path-­dependent cycle of death sentencing.

Mercy in the Land of the Texas Terminator For a case study in muscle memory, consider the example of Johnny B. Holmes, Jr., the “Texas Terminator.” Holmes, who led Harris County’s prosecutor’s office from 1979 to 2000, earned that moniker by leading the nation in death sentences and executions. “I say without apology that if you murder someone ­here, the state of Texas is ­going to kill you,” he said.25 In twenty years, from 1996 through 2015, Harris County, which includes the city of Houston, sentenced 112 ­people to death. Houston also leads the country in executions, with 125 since 1976. Houston did not have many more murders than Dallas, Texas, but it had over twice as many death sentences. Holmes easily won election four times, and he ran unopposed in 1996. He once commented, “I’m not shot in the [expletive] with compassion.”26 While bud­getary concerns may afflict the hundreds of small counties in Texas, the district attorney’s office in Houston has hundreds of ­lawyers and the resources to bring many death penalty cases.27 Indeed, the Terminator oversaw the expansion of the office, doubling the numbers of prosecutors and increasing its bud­get. A prosecutor who worked u ­ nder Holmes commented, “He ran the DA’s office like Patton ran the Third Army.” The Terminator campaigned by promising that he would seek the death penalty as often as he could. Another former prosecutor commented that for Holmes, the death penalty “was just a good way to get the SOBs off the street.”28 Muscle memory can fade. ­After the Texas Terminator’s retirement in 2001, death sentences gradually dropped. Holmes’s

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successor kept up the same pro–­death penalty mantra, emphasizing that prosecutors would “go ­after only the worst of the worst” who they believe “­will kill someone ­else.”29 But he resigned in 2008, ­after office e-­mails featuring racial slurs surfaced. His successor, amidst DNA exonerations and a scandal in the Houston crime laboratory, promised to investigate potential wrongful convictions, and over time the office obtained fewer death sentences. “We have this strange myth that Harris County automatically has the death penalty for police shootings,” said the defense attorney a­ fter the trial of Juan Quintero, who was on trial in 2008 for the killing of a police officer. His guilt was not disputed, and his ­lawyers did not succeed in arguing that Quintero was criminally insane. And yet the jury sentenced him to life in prison, based on his remorse, m ­ ental health prob­lems, and strong ­family ties. One juror commented, “He’s loved by many of his f­amily and friends, and that was number one. I felt like he has potential.” His ­lawyer commented, “They saw his humanity.” On the defense side, nonprofit organ­izations have stepped in to assist in capital cases, including the Texas Defender Ser­vice and the GRACE proj­ect. The prosecutor, in typical Harris County style, could not fathom not imposing a death sentence for someone who had repeatedly shot a police officer, asking, “What’s mitigation”?30 This verdict in the case of a cop killer was seen as a turning point. Harris County had no death sentences in 2015. In fall 2016, Kim Ogg won election as district attorney in Harris County, promising to reconsider the use of the death penalty, which gave Houston a “terrible image.” She pledged that “you ­will see very few death penalty prosecutions.”31 Harris County illustrates the forces that have reshaped the American death penalty landscape. Counties with aggressive prosecutors, bad defense lawyering, and a history of racial discrimina-

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tion drove the death penalty for de­cades. Large counties like Harris County are all that is left of the death penalty, but even in the last bastions of the death penalty, the muscle memory has faded.

Overload Consider what happens when a lone prosecutor embarks on a surge campaign to seek death sentences. The result in Maricopa County, Arizona, was a full-­ fledged “capital case crisis” that threatened to swamp the local courts. Maricopa County, which includes the city of Phoenix, is a major populous urban county like Harris County and Los Angeles. In the last ten years, Maricopa County r­ ose to new prominence in the death penalty; since 2010 it has been the second-­highest county nationally in death sentences. Maricopa County has imposed ninety-­two death sentences in the past twenty years. The surge began in earnest u ­ nder the county prosecutor from 2004 to 2010 (who unsuccessfully ran for state attorney general and then was disbarred in 2012). That prosecutor was known for aggressively pursuing the death penalty, doubling the number of times that the office sought the death penalty. The result was a crisis. A local judge complained, “We had more death-­penalty cases on our plate than any jurisdiction in the nation, . . . ​we ­didn’t have enough prosecutors, judges, or qualified defense attorneys to keep ­things moving along at a rate that anyone could define as satisfac­ ere tory.”32 Cases did not have l­awyers assigned to them. ­There w not enough mitigation specialists to ­handle the cases. While some defense l­awyers presented weeks-­long, careful mitigation cases at trial, on average they presented only two and a half days of evidence. That’s ­because ­there ­were a large number of cases handled by a few l­awyers who routinely took a heavy load of capital cases

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and presented almost no mitigation evidence at trial.33 The courts had to create special rules to h ­ andle the out-­of-­control caseload. Along the way, Maricopa prosecutors w ­ ere found to engage in misconduct.34 Meanwhile, from 2010 to 2015, 57 ­percent of defendants in death penalty cases in Maricopa w ­ ere black. During this time, the Maricopa County sheriff faced Department of Justice scrutiny for “the worst pattern of racial profiling” they had ­ ere assigned to seen.35 The crisis abated by 2011 as more judges w actively manage death penalty ­trials, and as the new county attorney reviewed all the pending death penalty cases and deci­ded to dismiss or s­ ettle about one-­fifth of them.36 In 2016, both the incumbent county attorney, who prevailed, and the challenger campaigned by saying they would seek the death penalty less often.37 The county machinery of death, once overloaded, has now slowed down.

Philadelphia Now consider the case of Philadelphia. “When it comes to the death penalty, I am passionate. I truly believe it is manifestly correct,” said Philadelphia District Attorney Lynne Abraham, a longtime prosecutor nicknamed the “Queen of Death” and the “Deadliest DA.”38 Philadelphia imposed forty-­three death sentences from 1996 through 2015, or 20 ­percent of the 143 death sentences across all Pennsylvania. To be sure, only three ­people have been executed in Pennsylvania since the 1970s, and all three were “volunteers,” or inmates who dropped their appeals to ­ hasten their executions. Nevertheless, the City of Brotherly Love was routinely seeking and winning death penalty cases. Even as Philadelphia prosecutors aggressively sought the death penalty, the local judges defanged the defense. Pennsylvania has had no statewide system of indigent defense. The Defender Asso-

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ciation of Philadelphia, a nonprofit public defender office, has staff, including investigators and social workers, that can assist with capital cases. However, judges only assign public defenders in ­every fifth murder case.39 The fees w ­ ere traditionally low. The Court of Common Pleas judge a­ dopted a rule in 1997 that in a death penalty case the lead ­lawyer would get $1,333 as a flat rate for trial preparation if the case pled out, and $2,000 if the case went to trial. At trial, the l­awyer would get paid $200 for the first day and $400 a day for additional days.40 With ­lawyers getting paid mostly for work during a trial, the rule discouraged much in the way of preparation for trial, including the kind of serious investigation that can result in a negotiated plea once prosecutors learn about the defendant’s background and mitigation evidence. ­Lawyers estimated that the rate could come out to two dollars per hour given the work they had to do. Why 80 ­percent of the murder cases should be assigned to private ­lawyers is unclear, but the trend did yield a telling insight. The cases ­were randomly assigned, making for a perfect experiment. In a study undertaken by the RAND Corporation titled “How Much Difference Does the ­Lawyer Make?,” we learned the answer: public defenders working in an office ­were a lot better.41 Public defenders reduced the chance of a murder conviction by 19 ­percent, the chance of a life sentence by 62  ­percent, and reduced prison sentences by 24  ­percent. In 2012, a­ fter the RAND study came out, the rate scheme was changed to provide $10,000 for pretrial work in death penalty cases. ­There ­were no death sentences in Philadelphia from 2013 through 2015, and just one in 2016.

The Cost In the past, many believed that imposing the death penalty would cost less than the cost of imprisoning a person for life.42 It was

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understandable to assume that an execution could be done quickly, while the costs of housing a prisoner for years would mount. That was all wrong. The death penalty is far more expensive than imprisonment, and the cost of the death penalty experiment in our country since the 1970s is in the billions.43 “It’s 10 times more expensive to kill them than to keep them alive,” said Judge Donald McCartin, who had been nicknamed the Hanging Judge of Orange County. “The death penalty is damn expensive,” as Fulton County Georgia Judge Stephanie Manis put it simply.44 It should be no surprise that it is the larger and more populous counties that still engage in death sentencing. Counties have faced bankruptcy, staff firings, and tax increases ­because of death penalty cases. Just look at counties like Jefferson County, Florida, which had to freeze all local government salaries and cut its library bud­get to pay for two death penalty cases. In Clallam County, Washington, a $1 million retrial in a death penalty case prompted a 15 ­percent cut in county staff. Osage County, Kansas, had to raise its property taxes to pay for a capital trial in 2010. Richardson County, Nebraska, almost went bankrupt; it had to mortgage its ambulances to pay for two death penalty cases.45 Financial pressures on state and local governments became especially severe a­ fter 2007 in the wake of the financial crisis. The increased costs of a death penalty case begin the moment a prosecutor decides to seek the death penalty. The defense is typically entitled to two ­lawyers and must begin intensive mitigation investigations. As trial approaches, jury se­lection w ­ ill be far more time consuming and intensive. The trial itself w ­ ill be far longer due to the complexity of the sentencing phase. The increased trial costs are not just defense costs, but also court costs, including witness transport and protection and security, and costs to the prosecution, which can be astronomical as well. Recall how the

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prosecution spent $1.4 million in the Aurora theater shooting trial, and the sheriff spent even more on court­house security and transport. In Florida, bud­get cuts in the wake of the financial crisis placed prosecutors in a position where they ­were “strained to the breaking point. . . . ​Instead of seeking the death penalty, maybe ­we’ll seek something e­ lse.”46 Not only are the t­rials more expensive, but appeals and habeas in death penalty cases can take de­cades to litigate; the average is fifteen years. Of the more than 8,000 death sentences imposed since the 1970s, the vast majority never result in an execution, and according to federal data 40 ­percent had sentences or convictions overturned in the courts or through clemency.47 Some of ­those reversed cases then result in a second or third trial. ­Those costs fall hardest on strapped local governments in states that do not provide adequate funds for capital cases. For example, Texas spent $12 million on indigent defense for the entire state in 2004, which was less than New York state spent just on its Capital Defender office. The vast majority of the funding for indigent defense in Texas comes from counties—­which explains why so many are now purchasing “murder insurance.”48 Study a­ fter study has documented the costs of typical death penalty cases and the costs of keeping up an entire death-­ sentencing system, which are even greater. It is often not pos­si­ble to get complete information about total court, defense, and law enforcement costs, but based on what we know, as taxpayers we should be concerned. A Washington state study found an average of over $3 million in costs for cases where the death penalty was sought.49 In King County, Washington, it cost almost $5 million both to prosecute and to defend two death penalty cases, and thirty-­six prosecutors had to be let go due to the resulting bud­get cuts.50 A New Jersey study found that taxpayers paid a “quarter of a billion dollars on a capital punishment system that

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has executed no one.”51 A New Jersey police chief, echoing the views of police chiefs around the country, commented, “Give a law enforcement professional like me that $250 million, and I’ll show you how to reduce crime. The death penalty i­ sn’t anywhere on my list.”52 ­Those mounting costs may explain why rural counties have almost entirely stopped death sentencing, and why, over the past two de­cades, death sentencing has retreated to a handful of large, densely populated counties that can still afford it. The largest numbers of p ­ eople remain on death row in California, where ­there have been no executions in over a de­cade. Although voters in fall 2016 enacted a referendum designed to hasten executions, it is still being reviewed by the courts, and the possibility of an execution in California remains remote. The main death-­sentencing counties in California—­Los Angeles, Riverside, San Bernardino, Alameda, Orange, Contra Costa, San Diego, Sacramento, Tulare, and Ventura counties—­are spread all around the state. Yet the state spent over $4 billion on the death penalty since 1978, taking into account the costs of t­rials, appeals, habeas corpus, and death row incarceration. Just “the additional cost of confining an inmate to death row, as compared to the maximum security prisons . . . ​is $90,000 per year per inmate. With California’s current death row population of 670, that accounts for $63.3 million annually.” That is a lot of money to be spent on just thirteen executions. A report estimated that it would cost $9 billion to retain the California death penalty through 2030.53 Consider also the opportunity costs: the lost benefits of all t­hose prosecutors, defense ­lawyers, appeals ­lawyers, and judges spending their time working on other criminal cases rather than dedicating thousands of hours to death penalty cases. Consider another statistic. In Indiana, it costs about $500,000 to pursue the death penalty as compared to u ­ nder $45,000 to seek

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life in prison without parole.54 Life without parole is cheap where the death penalty is expensive. Many “smart on crime” politicians have called for an end to the death penalty, and states like New York, New Jersey, and New Mexico all cited cost concerns when abolishing the death penalty.55 ­Those states each replaced the death penalty with life without parole. Like ­water rushing to lower ground, prosecutors have moved from death to life-­without-­ parole sentences.

The Federal Death Penalty The federal system is the only death penalty system in the United States that does not rely on decisions by locally elected prosecutors. In federal court, federal defender offices coordinate death penalty cases. ­Those offices have led the way in thinking about how to ­select juries, use mitigation evidence, work with clients, retain experts, and reach out to victims. ­Until 1988, the federal death penalty was limited to treason and a few other infrequent offenses. Then Congress enacted the “drug kingpin” statute, and in the mid-1990s, in response to the first World Trade Center bombing and then the Oklahoma City federal building bombing, the federal death penalty was expanded to include just about any type of hom­i­cide. This was precisely when the death penalty was reaching new heights in Death B ­ elt states. In addition, federal prosecutors can seek the death penalty in states that do not themselves have it, for example in the Boston Marathon trial, held in Mas­sa­chu­setts, a state that had abolished the death penalty over thirty years earlier. We have seen very few federal executions, however, and one reason is that although each federal prosecutor’s office has some degree of autonomy, t­here is centralized decision making and review in federal cases, as well as a strong federal defense bar.

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Since 1995, the Department of Justice (DOJ) has had a detailed protocol for how local U.S. Attorneys and the DOJ should decide ­whether to seek the death penalty.56 Attorney General John Ashcroft tried to push ­things further during his years in office, tightening DOJ review of decisions ­whether to seek the death penalty and overruling local U.S. Attorneys’ recommendations against seeking the death penalty in dozens of cases.57 Yet ­those efforts did not produce many sentences. The federal death penalty has been sought in almost 500 cases since 1988, but only three ­people have been executed (most prominently Timothy McVeigh, who agreed to waive his appeals). Federal defender offices are comparatively well funded, and although many federal death penalty cases are assigned to appointed ­lawyers, federal statutes provide for appointment of two attorneys for the defense, as well as reasonable investigative and expert funds, and call on the judge to “consider the recommendation” of the federal defender.58 The federal judiciary established the Federal Death Penalty Resource Counsel Proj­ect in 1992 and has expanded it since, with separate proj­ects supporting ­trials, appeals, and habeas work. ­Those federal ­lawyers have been at the forefront of the new mitigation strategies that have been used so powerfully across many death penalty states. They have an outreach group that helps to reach out to victims in pos­si­ble death penalty cases. The results speak for themselves: ­there have been fewer than thirty federal death sentences in the past de­cade. Most have been in death penalty states like Florida, Texas, and ­Virginia. In a testament to the effectiveness of counsel, of the almost 500 cases brought since 1988, 234 of 487 defendants negotiated pleas or had charges dismissed. In the cases that went to trial and faced a death sentence, the juries chose life 65 ­percent of the time (in 151 cases).59 More troubling, a study in 2008 found that the

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defendants who received the least expensive repre­sen­ta­tion ­were more than twice as likely to be sentenced to death.60 Even if the federal death penalty continues to be used in high-­ profile terrorism cases like the Timothy McVeigh case, the Washington, D.C., Beltway Sniper case, and the Tsarnaev case, such cases are uncommon. Even if federal officials try to make death charging a priority, they ­will likely end up with hardly any sentences or executions to show for it.

A Dirty Secret “Prosecutors must reveal the dirty l­ ittle secret they too often share only among themselves: The death penalty actually hinders the fight against crime,” Manhattan district attorney Robert M. Morgenthau wrote in a moving piece published in the New York Times in 1995, as New York state prepared to bring back its death penalty. His dirty secret was that he never sought the death penalty. Morgenthau wrote, “The penalty exacts a terrible price in dollars, lives, and h ­ uman decency. Rather than tamping down the flames of vio­lence, it fuels them. . . . ​I urge all of our lawmakers, in the strongest pos­si­ble terms, not to reinstate the death penalty in New York.”61 Once it became the law, when he did not seek the death penalty for the killer of a New York City police officer, Morgenthau did not provide an explanation, since “to do so can only be misleading and w ­ ill create unnecessary trial and appellate issues in death penalty cases.” Morgenthau never sought the death penalty ­after New York brought it back in 1995, despite criticism by then-­ mayor Rudolph Giuliani and then-­ governor 62 George Pataki. This did not affect his stature and popularity; he would be reelected time and again. In 2004, Morgenthau testified in strong support of ending capital punishment in New York state.

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­ unning for reelection successfully again in 2005, he called his R opponent “wrong on the death penalty.”63 We should not forget that countless prominent prosecutors have opposed the death penalty, even if they did not do so as openly as Morgenthau. Few prosecutors have ever sought death sentences in the United States. Moreover, ­there are other aggressive prosecutors around the country who ­couldn’t be faulted for not trying. Harry Connick. Sr., in New Orleans Parish, was famous for seeking the death penalty whenever pos­si­ble, but his office mostly failed to convince juries to impose the death penalty, even during the 1990s. The prosecutors who frequently obtained death sentences w ­ ere always a minority, even in the heyday of the American death penalty. If prosecutors in outlier counties are nearly alone in keeping the sputtering machinery of death ­running, and if Morgenthau is right that public safety does not benefit from rare and costly death sentences, then the death penalty has no legs left to stand on.

Defragmenting Criminal Justice The splintering of the death penalty may contribute to its undoing ­under the U.S. Constitution since it makes the death penalty more and more “unusual” ­under the Cruel and Unusual Punishments Clause of the Eighth Amendment. This has not escaped the notice of judges and l­awyers. In 2014, Supreme Court Justice Stephen Breyer emphasized that the death penalty has “increasingly become unusual,” having “declined rapidly” in the preceding fifteen years. Justice Breyer noted “dramatic declines” within states like Texas and ­Virginia: “Geography also plays an impor­tant role in determining who is sentenced to death. . . . ​Between 2004 and 2009, for example, just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sen-

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tences imposed nationwide.”64 It is not just that death sentences are rare and concentrated in a few counties. It is the explanation for why a few counties sentence ­people to death and not the ­others: due to population density, racial bias, and stubborn path de­pen­dency. L ­ awyers ­will use data like that I have collected to show how few counties in their states actually impose death sentences, and how arbitrary it is which counties still do. The dispersed geography of the death penalty also provides a larger lesson: we should not let a few prosecutors or counties set extreme punishments that we all pay for in the end. ­There are many good ­things about local control and local government. Local prosecutors can be more sensitive to their constituents and their community. The tradition of elected prosecutors in this country aspires to demo­cratic accountability in criminal justice. However, the downside is that justice is highly fragmented in the United States. Neither justice nor mercy should remain entirely local. Consider that during the same time period when the death penalty came raging back in the United States, millions of ­people entered our prisons at a rate never seen before in our country—or in the world. In the United States, we have one-­quarter of the world’s prisoners but only 5 ­percent of the world’s population. The rise in incarceration began when crime ­rose in the 1970s, but it continued to accelerate as crime began to fall in the 1990s.65 Many “big government” critics wish mass incarceration would end. We still spend tens of billions of dollars a year for our incarceration binge during the tough-­on-­crime de­cades of the 1980s and 1990s. Yet it is not the “big” federal government that has been the driver of mass incarceration, or of the death penalty. The vast bulk of prisoners are in state prisons. It was the states that enacted tough sentencing laws and fueled the prison building that allowed mass incarceration to happen. And as with the death penalty, blame for mass incarceration should be placed not just at the state

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but at the local level. Many have blamed mass incarceration on rising crime, tough-­on-­crime politics, racial politics, new restrictive “throw away the key” and “three strikes” sentencing laws, the drug war, and other f­ actors, and all have played a role. However, the National Acad­emy of Sciences concluded in an impor­tant 2014 report that punitive policies, not rising crime, created mass incarceration.66 Take Louisiana, the state with the highest incarceration rate in the country. In 2016, a state auditor reported that significant cost savings could result from not prosecuting nonviolent offenders. Yet the Louisiana District Attorney’s Association objected that prosecutors should be able to use an offender’s “entire rec­ord,” including arrests that do not result in convictions. Not just prosecutors, but judges and sheriffs and prison wardens have an interest in keeping Louisiana prison beds filled—­even in an era of declining crime.67 Over t­ hose objections, though, lawmakers and a smart-­on-­crime governor passed seven laws designed to improve reentry into society, including a law to “ban the box,” making it easier for former convicts to get jobs. Further mea­sures are planned to use alternatives to incarceration for low-­ level of68 fenders, addicts, and the mentally ill. Or take Mississippi, the neighboring state that also traditionally had very high incarceration rates. ­After a task force studied what might work best, in 2014, Mississippi took the “smart on crime” path over the “tough on crime” approach taken in the 1980s and 1990s. Prison population has already declined by about 15 ­percent in Mississippi, and hundreds of millions of dollars in savings are anticipated.69 The modern death penalty illustrates a larger prob­lem with arbitrary punishment. That prob­lem does not come from big government or local government, but rather outlier jurisdictions that have gone too far in handing down excessive sentences that we all ending up having to pay for. Entire states should not have to pay

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for a few local prosecutors’ overcharging and overcrowding the state prisons. If counties had to pay to play, they would not do it. In the past, counties did not have to pay for death sentences. They sentenced on the cheap using short t­ rials, and the costs w ­ ere pushed farther down the road, to the appeals and habeas proceedings that the entire state paid for and that typically resulted in reversals. Now that counties shoulder more of the expense for death penalty cases up front, since ­trials must be more carefully conducted, the counties that used to be gung ho no longer seek death sentences. The team approach exemplified by Jack Stoffregen’s office in rural Texas suggests another way to save money and get better results. Adequate ­legal repre­sen­ta­tion requires heavy lifting by nonlawyer social workers and investigators, who, incidentally, are much less expensive than l­awyers. It takes a team to provide social ser­vices help: to investigate the facts and the social history of each client. Statewide public defender offices can ensure equal and fair access to justice if they are adequately funded. Statewide resources and “strike forces” could be created for mitigation evidence but also for other types of evidence. North Carolina has a public defender to give advice to criminal ­lawyers around the state on scientific issues beyond the expertise of most criminal l­ awyers.70 We can also get smart on prosecution. Some states, for example New Jersey, have attorney generals that supervise all prosecutors and law enforcement in the state. ­These states have not done away with local control of policing and prosecution functions, but they do have mechanisms to make sure that justice is done through a “uniform and efficient enforcement of the criminal law,” as the New Jersey statute puts it, “throughout the State.”71 Law professor John Pfaff has detailed how during the 1990s and early 2000s, even as crime fell, t­ here was a rise in the numbers of prosecutors nationwide, from 20,000 to over 30,000.72 We do not need as many ­today.

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In a “smart on crime” revolution, p ­ eople are reconsidering criminal justice policies ­wholesale. State lawmakers have reduced jail and prison populations, often at the recommendation of the same sentencing commissions that in years past pushed harsher sentencing. States have required localities to bear more of the costs of incarceration. Statewide commissions such as indigent defense commissions, innocence commissions, and crime commissions can review and improve the fairness of criminal justice. Slowly and surely, smart-­on-­crime efforts can undo the punishment binge of the tough-­on-­crime era. The days when prosecutors in a few counties like Caddo Parish, Louisiana, or Harris County, Texas, could dominate the punishment practices of an entire state may be ending. ­Will the Supreme Court step in and put an end to the arbitrary role county lines play in the death penalty? Time w ­ ill tell. ­Until then, the extreme disparities in death penalty cases w ­ ill remain an emblem for arbitrariness and bias in criminal law. The lessons from the ­great death penalty decline should be extended across the board to make local criminal prosecution just.

7 THE OTHER DEATH PENALTY

In criminal justice reform, changes in the law can have truly unanticipated consequences. Life without parole is a case in point. Some fans of adopting life without parole (LWOP) hoped that it would give jurors an option not to sentence persons to death and would reduce death sentencing. Opponents feared that LWOP would harm death sentencing, which they favored. Both the advocates and the opponents of LWOP got something more and something less than they bargained for. As I ­will show in this chapter, while the evidence is strong that LWOP did ­little to hasten the demise of death penalty cases, the evidence is overwhelming that its scope has expanded tremendously. Tens of thousands of ­people who never could or never would have been sentenced to death now get the “other death penalty.” Texas provides a troubling case study for what can happen when death sentences shift to life-­without-­parole sentences. Texas was late to adopt LWOP. Before 2005, a Texas judge would tell the jury in a capital case that if the jury deci­ded not to impose a death sentence, the defendant would automatically receive a “Hard 40” life sentence, meaning the defendant’s earliest possibility of parole was ­after forty years of imprisonment.1 This remote chance of parole for certain murderers, however, was frowned on by some. Texas state senator Eddie Lucio, Jr., had

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introduced a law for three sessions in a row to replace Hard 40 with LWOP. Senator Lucio said that a “true” life-­without-­parole sentence would bring “more integrity” to the death penalty pro­ cess. With an LWOP option, “juries no longer would be forced to vote for a death sentence to ensure that murderers never got out of prison.”2 Supporters of LWOP also noted that ­there was no evidence that its introduction would decrease the number of death sentences that juries hand down. Opponents of the new law disagreed. They thought it would give “only the illusion of comfort to victims.” Worse, it would “weaken” the death penalty and confuse jurors. That the new law would allow life-­without-­parole sentences in non–­death penalty cases meant it would “distort” the entire system, for the harshest penalties would no longer be reserved for the most serious crime, capital murder.3 Some opponents also feared that adopting LWOP would hamper death sentences. The Harris County District Attorney’s Office aggressively opposed the 2005 law adopting LWOP. The Texas District and County Attorney’s Association, which represented 3,300 state prosecutors, did not take a position on the law, in part ­because they ­were not “sure of the effect it ­will have on the death penalty.” Despite t­hese objections, the third time proved the charm, and Texas lawmakers a­dopted LWOP in September 2005 for crimes committed ­after that date. ­After LWOP was a­ dopted, death sentences continued to decline in Texas, just as they had been d ­ oing for years. ­There was no change in the rate of decline—­LWOP had at best a weak effect on death sentencing in Texas. The continuing decline in death sentences in Texas tells only part of the story. What it misses is the stunning rise of LWOP. ­There w ­ ere no LWOP sentences for capital murder in 2005, and only a few in 2006, but then ­there was a sharp spike. In 2007, ­there ­were eigh­teen death sentences and forty-­eight life-­without-­

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110 100 90 80 70 60 50 40 30 20 10 0 2000

2005 LWOP Sentences

2010

2015

Death Sentences

Figure 7.1 ​Death and LWOP sentences in Texas, 1996–2016. Source: The Sentencing Proj­ect; data collected by author.

parole sentences. In 2012, ­there ­were ten death sentences and 105 LWOP sentences. LWOP exploded in Texas in the years following its adoption. Opponents who worried that p ­ eople not eligible for the death penalty would receive LWOP w ­ ere right. What they got wrong was how some would end up embracing what they had previously opposed. Consider the fact that in the law’s first few years, the Harris County district attorney sentenced over one hundred ­people to LWOP, or one-­quarter of all t­ hose who received it in the entire state of Texas.4 As Figure 7.1 illustrates, the state’s population on “life row” has exploded, while the numbers on death row continue to decline. The rise in LWOP sentences has been stunning. Data on such sentences are notoriously difficult to reliably come by, but Dr. Ashley Nellis of the Sentencing Proj­ect shared detailed data

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from the Texas Department of Corrections describing who is now sentenced to LWOP in Texas. Texas now has a “life row” vastly larger than its death row ever was, with almost 800 p ­ eople serving LWOP and about 9,000 p ­ eople serving a life sentence with parole.5 The Texas life row can include individuals who are not eligible for the death penalty. It initially included juveniles at the time they committed the offense, twenty-­eight of whom received LWOP sentences from 2005 to 2013, but Texas then eliminated mandatory life sentences for juveniles in response to Supreme Court decisions, making parole pos­si­ble ­after forty years. Texas life row can also include intellectually disabled individuals as well as some individuals who did not commit murder but rather sexual assault against a child. In 2015–2016, LWOP sentences declined in Texas, which hopefully indicates a new direction in handing out such harsh sentences. Other states followed the same pattern, with LWOP surging as death sentences gradually declined. To be sure, most states that enacted LWOP did so before Texas did, and as part of tough-­on-­ crime sentencing mea­sures in the 1980s and 1990s, not as part of any debate about ­whether to maintain the death penalty. O ­ thers ­adopted LWOP in response to the Supreme Court striking down death-­sentencing statutes from 1972 to 1976, seeking to adopt a “­whole life” alternative to the death penalty. In other death penalty states, LWOP sentences have similarly increased. In Ohio, prosecutors seek the death penalty far less often; as recently as 2010, they charged capital murder in a hundred cases a year, but it is now down to fewer than twenty cases a year. One Ohio prosecutor, whose office seeks capital murder in a fraction of the cases it used to, and who created a special group to decide which cases are worth pursuing as death penalty cases, commented, “In ­every case, I have to ask, ‘Are we ­going to survive this?’ We have to take a case to a judge and jury and then face 25 years of appeals. Is it

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fair to families of victims? Is it fair putting them through a quarter ­century of appeals?” Such screening should occur for LWOP cases and ­others. As of the time I write, in Ohio ­there are now about 600 ­people serving LWOP. ­There are almost one hundred LWOP sentences a year in Ohio, far more than t­ here ever w ­ ere death sen6 tences. Prosecutors in death penalty states may not be obtaining death sentences as often—­but some are far more aggressive than ever before in seeking and obtaining LWOP. Just as in Texas, a greatly expanded life row has replaced a shrinking death row.

Life Rows ­ oday, even as the death penalty fades away, juries and judges inT creasingly impose “the other death penalty,” or life without parole. Many more inmates are “virtual lifers” who, even if parole is technically pos­si­ble, ­will as a practical ­matter serve their entire lives in prison. Should we celebrate this trend alongside the decline of the death penalty? Many death penalty opponents long pushed for life without parole to replace the death penalty. The California ACLU, arguing why LWOP would be better than the death penalty, said, “Life without parole provides swift, severe, and certain punishment.” They added, “Sentencing p ­ eople to die in prison is the sensible alternative for public safety and murder victims’ families.” They did note that ­people can be found innocent and exonerated if they are not executed. The ACLU acknowledged, “Unlike death penalty cases, however, LWOP sentences receive no special consideration on appeal, which limits the possibility they w ­ ill be re7 duced or reversed.” This begs the question: Is this r­eally what death penalty opponents wish for? A system in which it is thought best to lock the door and throw away the key for ­people sentenced to LWOP?

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Death penalty abolitionists who pushed for LWOP as an alternative to the death penalty should have been careful of what they wished for. I have already described how adopting LWOP has not played any mea­sur­able role in the decline in death sentences. Instead, life sentences have skyrocketed. ­Today, about one in eleven ­people serving prison time—­over 160,000 prisoners—is serving a life sentence, and over 50,000 prisoners are serving life without parole. ­Those numbers dwarf t­hose on death row, who number about 3,000 ­people.8 According to a study by the Sentencing Proj­ect, most of ­these tens of thousands of prisoners who are serving life w ­ ere convicted of murder. But many of them (over 10,000) w ­ ere convicted of nonviolent crimes, like property offenses or drug offenses, and many ­were convicted of sexual assault, robbery, or kidnapping. Nellis, whose research uncovered ­these numbers, has commented, “Life in prison is a death sentence, without the execution.” Stark geographic disparities exist for life sentencing, as with death sentencing. LWOP is available in e­ very state except Alaska, but more than half of LWOP sentences nationally are concentrated in five states: California, Florida, Louisiana, Michigan, and Pennsylvania.9 Why are life and life-­without-­parole sentences growing during a time when crime is declining? Governors are much less likely to approve parole for ­people serving life sentences. California governor Gray Davis said, “If you take someone e­ lse’s life, forget it. I see no reason to parole p ­ eople who have committed an act of murder.” Other states have passed two-­strikes or three-­strikes laws for repeat offenders, requiring mandatory life-­without-­parole sentences. California’s three-­strikes law has resulted in the state’s having one-­quarter of the life-­sentenced prisoners in the United States.10 While federal death sentences have declined, life sentences have increased, along with harsher sentencing laws. About 4,500 fed-

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eral prisoners are serving life without parole, accounting for 2.5 ­percent of federal prisoners. ­These sentences are not just in murder cases, but are most common in drug-­trafficking cases, and also in firearms, extortion, and racketeering cases. The U.S. Sentencing Commission has explained that many of ­those cases involved very large quantities of drugs. The Commission also noted that far more of the prisoners sentenced to life imprisonment ­were minorities. Some serve mandatory life sentences based on mandatory minimum sentences for certain crimes, including for third-­ time federal drug offenses. Far more federal prisoners, about 6,500 of them, have sentences so long that absent a p ­ ardon, it guarantees they w ­ ill spend the rest of their lives in prison. Many of ­these ­people ­were involved in serious criminal organ­izations, and most had serious criminal rec­ords, but most did not themselves commit murders.11 Should we ­really be sentencing so many thousands of p ­ eople to life sentences? ­These lengthy sentences have a disproportionate impact on our prison populations. To reduce mass incarceration, it is impor­tant to focus on lengthy prison sentences. ­After all, one person serving a ten-­year sentence occupies the same amount of prison space as ten p ­ eople serving one-­year sentences. Moreover, due to life sentencing and other lengthy sentencing, our prisoners are generally aging. According to the federal Bureau of Justice Statistics, the number of persons fifty-­five years or older sentenced to more than one year in prison surged 400 ­percent between 1993 and 2013, to over 130,000. ­These el­derly prisoners have greatly increased burdens on medical care, and states have only begun to adopt meaningful programs for early release of geriatric patients or “compassionate release” of ­dying prisoners.12 The U.S. Supreme Court considered w ­ hether life without parole is constitutional ­under the Eighth Amendment or is in fact cruel and unusual punishment. It has struck down automatic

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LWOP sentences for juveniles and for persons who ­were ­under eigh­teen years old when they committed the offenses. Such sentences cannot be mandatory. The court added in its 2016 ruling in Montgomery v. Louisiana that a juvenile’s crimes must reflect “permanent incorrigibility,” and that juvenile LWOP should be reserved for only “the rarest offenders.”13 For juveniles, ­these rulings mean that an LWOP case now looks more like a death penalty case, with an opportunity to pres­ent mitigating evidence. Now juveniles ­will need defense teams with mitigation expertise to ­handle ­those cases. In some states, hundreds of new sentencing hearings must be held. Some state courts have already ruled that imposing an LWOP on a juvenile should be rare, and o ­ thers have extended the same reasoning to sentences that are so long that they are de facto life sentences.14 Death penalty l­awyers and nonprofits are increasingly working to teach ­lawyers how to do mitigation and life history investigations in LWOP cases. Good investigation and lawyering ­will ­matter in far more cases, which ­will provide new opportunities and new challenges. While better lawyering impacts the death penalty, and now it ­will impact juvenile LWOP, better lawyering cannot readily impact widespread mandatory sentences, which are binding even on judges. Federal judges have chafed at the harshness and inflexibility of mandatory minimums and also at harsh recommendations of the federal sentencing guidelines. A bipartisan co­ali­tion of lawmakers has pushed federal legislation to undo mandatory life sentences in drug cases, citing the billions in costs, the racial disparities, and the excessiveness of the sentences.15 Far more should be done to permit ­lawyers to make the case for their individual client and for judges to exercise flexibility in sentencing. The rise of LWOP suggests that ending the death penalty is a “­bubble ­under the rug” prob­lem. You can tamp down on it, but the ­bubble just moves farther along—or worse, it grows.

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­F uture Dangerousness ­ hether it is the death penalty, life without parole, or some other W serious sentence, judges often allow experts to pres­ent evidence about ­whether the convicted deserves the most severe punishment ­because he poses such a terrible danger to society. Unfortunately, judges often let jurors hear junk science. Death penalty cases are infamous scenes of quack expert testimony. Now that judges may be more open to hearing more evidence about individuals facing nondeath sentences, prosecutors may respond with even more of that sort of testimony in life cases. ­There was a “one hundred p ­ ercent and absolute” chance that Thomas Barefoot, facing the death penalty for the murder of a police officer in Bell County, Texas, in 1978, would commit f­ uture violent acts, said Dr. James Grigson. In Texas, the death penalty statute asks if “­there is a probability that the defendant would commit criminal acts of vio­lence that would constitute a continuing threat to society.”16 Dr.  Grigson told the jurors that he had examined “between thirty and forty thousand individuals” in his ­career, and could “give a medical opinion within reasonable psychiatric certainty.” Dr. Grigson and a second doctor testified for more than half of the sentencing hearing. They both concluded that Barefoot was a “criminal sociopath” and a threat to society. Though Barefoot had shot the officer while fleeing arrest for statutory rape, he had never been convicted of a violent crime before. Nor had the doctors ever examined Barefoot. The defense asked the psychiatrists ­whether they knew about studies showing that predictions of vio­lence ­were unreliable, and Dr. Grigson responded that only a “small minority group” doubted that f­uture dangerousness can be predicted, and certainly “not the American Psychiatric Association.” This was simply untrue. In fact, the American Psychiatric Association l­ater told the Supreme Court

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that it is “an established fact within the profession” that such predictions are unreliable, and that “two out of three” such predictions are wrong.17 “Dr. Death,” the gruesome monitor Dr. Grigson earned during his ­career, always answered “yes” to the question ­whether a person would be dangerous in the ­future. He was confident, was tall, looked like a cowboy, and prosecutors loved to call him as a witness. One might think judges would forbid junk science. The U.S. Supreme Court, however, ruling in 1983 in Barefoot v. Estelle, found expert psychiatric testimony on f­uture dangerousness not unconstitutional per se since it was not “almost entirely unreliable.” The court emphasized in Barefoot’s case that it had already approved the Texas death penalty statute, which made ­future dangerousness a key part of the death-­sentencing pro­cess. That the court all but invited junk science was fully admitted. Nor was ­there any doubt that the psychiatric testimony “increased the likelihood” that Barefoot would be sentenced to death. In 1984, Barefoot was executed. His last words included: “I hope that one day we can look back on the evil that w ­ e’re ­doing right now like the witches we burned at the stake.” Dr. Grigson was l­ater expelled from the American Psychiatric Association and the Texas Association of Psychiatric Physicians for testifying to “one hundred ­percent certainty.” Yet he continued to testify, and he retired in 2003 a­ fter testifying in 167 death penalty t­rials and countless more non–­death penalty cases. Dozens of t­ hose ­people, including exoneree Randall Dale Adams, about whom the docu­ ere l­ater exonerated or mentary The Thin Blue Line was made, w had sentences reduced and w ­ ere released, but never committed 18 acts of vio­lence again. Though Dr. Death retired in 2003 and is now deceased, such testimony has not gone away; death penalty laws actually de-

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manded it by asking ­whether someone poses a ­future danger. The very concept of f­uture dangerousness is an odd one when the required alternative to a death sentence is life in prison. ­There has now been substantial research on what the likelihood is that a prisoner serving a life sentence in a high-­security prison ­will commit ­future acts of vio­lence. It is very unlikely.19 Nevertheless, ­Virginia courts, for example, say that jurors must assess ­whether the person might be dangerous to society as a w ­ hole and in the abstract, and not ­whether they would pose a danger in prison, where the person w ­ ill in fact spend their life.20 As one V ­ irginia judge told jurors, “Society is every­thing. Every­body, anywhere, anyplace, anytime.” The defendant in that case argued that no, “prison society” is the relevant society, and risk-­ assessment research shows that ­there are low rates of prison inmate vio­lence. The Virginia Supreme Court barred this risk-­ ­ assessment research since it was statistical and not “individualized” testimony about the inmate.21 In recent years, some judges have been more open to good research on f­uture dangerousness, although they still forbid testimony on the most directly on-­point research regarding how prisoners actually behave in prison. In the recent ­Virginia case of John “Jose” Rogers, the defense expert presented testimony that, based on the assumption that Rogers would be incarcerated for life in a maximum-­security prison, the jury should understand ­there was a “very, very low rate in general” of vio­lence among such inmates, and Rogers’s rate “is g­ oing to be significantly lower than that already low rate.”22 Rogers received a life sentence. It is telling that judges allow junk testimony about f­ uture dangerousness that pretends to say with certainty w ­ hether a par­tic­ u­lar person ­will commit acts of vio­lence, but they ­will not allow good research on ­actual risks of ­future vio­lence. Moreover, new forms of unsound expert testimony continue to proliferate in death penalty cases. In the Marvin Lee Wilson case, despite power­ful

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expert evidence of intellectual disability, and despite the Supreme Court’s ruling in Atkins that the intellectually disabled cannot be sentenced to death, Texas went ahead with an execution.23 Fi­nally, in its 2016 ruling in Moore v. Texas, the Supreme Court held that judges must use medically informed tests for w ­ hether an individual intellectually disabled. In Moore, the justices rejected the unscientific standard that the federal court of appeals had ­adopted, one based on ste­reo­types about how p ­ eople manifest disability, and which had actually relied on the character Lennie in John Steinbeck’s novella, Of Mice and Men.24 In the more recent Texas case of Duane Edward Buck, the expert notoriously testified that the defendant’s race made him more likely to commit f­ uture acts of vio­lence. In his notes, he had written, “Race. Black. Increased probability.” Indeed, that same expert had testified similarly in six other cases in Texas, each of which was reversed, but not Buck’s sentence, b ­ ecause in Buck’s case it was the defense that erroneously put on the junk evidence, and not the prosecution. The Supreme Court initially declined to review Buck’s case in 2011, but in 2017 the justices reversed his conviction.25 The use of flawed expert testimony, even in death penalty cases, should greatly trou­ble us as LWOP cases multiply and more sentencing decisions rely on concepts of dangerousness. ­There is good research on risk and recidivism, but judges have not been careful gatekeepers. The standards for expert testimony in criminal sentencing have not been revisited based on the standards that the U.S. Supreme Court a­ dopted in its well-­known 1993 decision in Daubert v. Merrell-­Dow Phar­ma­ceu­ti­cals, which many states also ­adopted.26 Following the Daubert framework, trial judges must look much more closely at scientific evidence at trial, but judges have not traditionally scrutinized evidence closely in death-­ sentencing hearings. Death penalty cases highlight how crucial

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sentencing is and how impor­tant it is to rely on sound evidence. ­Unless judges start to insist on a scientific basis for claims of dangerousness, the next Dr. Death ­will be Dr. LWOP.

Excess Inventory As the death penalty dies, it is spawning new dysfunctions, including vast death row populations that ­will never be executed and that remain in limbo, as well as strategic efforts by prosecutors to use the death penalty to bully defendants into LWOP pleas. Still more troubling, the worst features that once infected death sentences now crop back up in LWOP cases, including poor lawyering and false evidence. A death row can look like a life row in practice. Consider that California has the largest death row population of any state by far. Death row for men is at San Quentin Prison and for w ­ omen at Central California ­Women’s Fa­cil­i­ty in Chowchilla, California. Almost 800 men and w ­ omen are on death row, according to the California Department of Corrections and Rehabilitation.27 And the death penalty, according to corrections data, is ­going strong in California. What is so striking about the pattern of death sentences in California is that they have been fairly stable: rising again in the late 2000s although dipping in more recent years (see Figure 7.2). ­Today, California sentences more p ­ eople to death than any other state. In 2015, fifteen of fifty-­six death sentences nationwide ­ were levied in California. This is particularly surprising when one considers the dramatic decrease in murders in California, where by 2013, murders reached their lowest levels since 1964.28 But California is no Texas. None of t­hose inmates may face execution. ­There have been only thirteen executions in California since 1978, when the state reinstated the death penalty. ­There ­were

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45 40 35 30 25 20 15 10 5 0 2000

2005

2010

2015

Figure 7.2 ​California death sentences per year, 1996–2016. Source: Data collected by author.

only six executions from 2000 to 2006, and t­here have been no executions at all in California since 2006.29 California effectively has a death penalty moratorium due to the failure to adopt a lethal-­ injection protocol that complies with state law.30 For years now, California has had no ­legal way to carry out a death sentence. And yet death sentences continue to be imposed each year. Los Angeles County and three other Southern California counties are the top death penalty counties in the country. Los Angeles, as of 2013, had 228 inmates on California’s death row, making that county alone a bigger death penalty jurisdiction than any other state aside from Florida, and making it almost as big as Texas (which has about 250 inmates on death row as of this writing).31 But the Texas and Florida death rows are continually in flux b ­ ecause executions are carried out each year. Texas has executed over 500 inmates since 1976, compared with California’s thirteen. Harris County, Texas, alone has executed over a hundred prisoners. California death row inmates are inventory. So long as California has a death row, they ­will likely remain ­there for the rest

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of their lives. Appeals and habeas challenges may take more than two de­cades to be completed in California. In an Orange County trial in 2009, the defendant asked to be sent to death row, since San Quentin has bigger cells and more time for interaction with ­others than the Pelican Bay maximum security prison, where he was already serving a long sentence in solitary.32 Over four times as many inmates have died on death row in California for c­ auses other than execution, such as natu­ral ­causes or suicide, than have been executed since 1978.33 A federal judge concluded in 2014, “When an individual is condemned to death in California, the sentence carries with it an implicit promise from the State that it w ­ ill actually be carried out. . . . ​But for too long now, the promise has been an empty one.” The judge concluded that such a system is “dysfunctional,” “arbitrary,” serves no purpose, and is “unconstitutional.”34 The appellate court ­later reversed.35 Now the California voters have spoken again, and in fall 2016 voters approved a ballot initiative designed to speed up executions. However, the complex mea­sure includes a number of provisions that may not in fact speed cases up, and the backlog of cases remains enormous. As of this writing, the mea­sure has been halted for review by the California Supreme Court, and the possibility of an execution in California remains quite remote.36

Bargaining for Life The shadow of the death penalty can be effectively used by prosecutors to obtain severe bargains. Some prosecutors defend the death penalty in an era of declining sentences on the following grounds: even when it is not often used, the death penalty is a very useful bargaining chip. Plea bargaining dominates our criminal justice system. Upwards of 95 ­percent of criminal convictions are negotiated through plea bargains. ­These bargains are supposedly

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voluntary—in exchange for a reduced sentence, a defendant agrees to sign a contract, in effect, and admit guilt, waiving the right to a trial. In practice, however, the defendant may be facing so steep a sentence that ­there is ­little room to negotiate. Facing the death penalty, a defendant might accept anything offered by the prosecutors. “If they offer you anything less than death and you d ­ on’t take it, imagine if you guessed wrong,” one defense l­awyer put it. That type of pressure placed on a defendant does not concern the U.S. Supreme Court, which has said repeatedly that the fact that a defendant might plead guilty to avoid the death penalty does not make a plea constitutionally involuntary.37 Without the death penalty, no defendant would s­ ettle for a life without parole sentence; such a sentence would be the worst outcome they could get, so why not roll the dice at trial? In most death penalty states, nearly all capital cases are plea-­bargained—­ trials have almost entirely vanished. As one prosecutor put it, “I’m not a rabid proponent of the death penalty [but] if it has an upside, it’s that w ­ e’ve resolved some cases with pleas of life without parole where that was the appropriate sentence.”38 Law professor Sherod Thaxton studied sentencing decisions in Georgia from 1993 to 2000 and found that the threat of the death penalty increased the chances of a plea agreement by 20–25 ­percent.39 The bargaining chip comes with real risks for prosecutors. In at least some states, if defendants do not plead, and instead go to trial for a death sentence, they may receive far more experienced and better-­resourced l­awyers. The costs of trial ­will go up considerably. ­There are other costs to seeking the death penalty as leverage. Another prosecutor explained, “It’s a double-­edged sword. If you charge somebody with death . . . ​with the hopes that you’ll eventually use it as leverage to get a plea, then how do you justify the plea l­ater on? Now you have to go back to the victims and try to explain what is ­going on.”40

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If prosecutors do still sometimes use the death penalty to leverage harsh sentences, they are just using the tools available; as another prosecutor explained, “Most of what we do in the criminal justice system is about the exertion of the proper leverage.”41 As I described in Chapter 2, this approach has directly led to innocent ­people, ­later exonerated by DNA testing, pleading guilty to avoid death sentences. Perhaps when confronted with the body of evidence on wrongful convictions, including in death penalty cases, the Supreme Court ­will one day reconsider its tolerance for highly coercive plea bargaining. The ways that prosecutors use the death penalty in plea bargaining epitomize how we give prosecutors unfair and nearly absolute power when they negotiate criminal cases. The net result is wasteful, unjust, and it overproduces harsh sentences in an era when the death penalty is inexorably declining.

Life for a Lie The role that improved lawyering has played in the death penalty decline has enormous ramifications not just for the ­future of the death penalty, but for criminal justice more broadly. Outside of the death penalty, criminal defendants do not normally get teams of ­lawyers assigned to their cases. They do not get investigators to help uncover facts about their case. They do not get a separate trial to make the case that they deserve an individualized sentence. This prob­lem raises the question: if decent lawyering can undo the death penalty, what does that tell us about all the ­people who do not get decent ­lawyers and receive life sentences? Take the case of Joseph Sledge: he was sentenced to two life sentences in North Carolina in 1978. Two jail­house in­for­mants claimed that while in prison he had confessed to the murders in detail, and they denied that they had been promised anything in

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return or that they knew t­ here was a $10,000 reward in the case. ­Later, an in­for­mant explained that in fact he had been offered early release and a reward in exchange for falsely implicating Sledge. Since Sledge received life sentences, he did not have death penalty l­awyers assigned to his appeals and habeas. No one was working on his case at all—he filed petition ­after petition himself, pro se, and the judges summarily dismissed all his claims. Fi­nally, his handwritten letter caught the attention of an innocence-­project ­lawyer, and ­after nearly forty years a court clerk who was cleaning out the evidence room found an envelope high on a shelf with missing crime scene evidence from the case. In 2015, ­after Sledge obtained DNA tests, he fi­nally received an exoneration and his freedom.42 We need to look just as carefully at the cases that are not attention-­grabbing death penalty cases. Life without parole sentences in this country have skyrocketed, as have other massive sentences. LWOP shares something unique with the death penalty: ­there is no conceivable way to rehabilitate a prisoner condemned for the rest of her life, just as t­here is no rehabilitation of a prisoner condemned to death. And the pernicious nature of junk science in convincing jurors and public of the certainty of f­uture dangerousness is equivalent to sending someone to serve a life in prison for a lie. Karriem Saleem El-­Amin went to prison when he was nineteen, in 1971, and he served forty-­two years, three months, and three days. He now works at a ware­house store called Second Chance, which is owned by a nonprofit in Baltimore. He told a journalist, “I work in the receiving department. And I’m kind of happy to say e­ very ­little item [that arrives] I get a chance to touch.” In Mary­land, 130 lifers w ­ ere released ­after a ruling by the Mary­land Court of Appeals based on defective 1970s jury instructions. The

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state hired social workers to help t­ hese ­people. None of them has reoffended or even ­violated probation.43 Lawmakers are starting to reexamine life sentences as part of a renewed focus on rehabilitation. In California, thousands of lifers have been released since 2011, and only thirty-­three of them, less than 2  ­percent, have returned to prison—­most not for new crimes, but for parole violations: ­things like “buying beer,” “possessing a banned iPhone,” and missing parole officer meetings.44 In general, evidence suggests that the likelihood that paroled lifers w ­ ill commit new serious crimes is “miniscule” and “minimal” when compared with that of the general inmate population.45 ­After all, by the time a lifer is paroled, they may have served two de­cades or more in prison; older p ­ eople are simply far less likely to commit crimes ever again. Our dev­il’s advocate was Supreme Court Justice Antonin Scalia, who in a 2015 opinion argued, “The real­ity is that any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment.” The death penalty should not trou­ble us, he said, ­because we would have “the same risk of wrongful convictions” should the “horrendous death-­penalty cases” be instead “converted into equally horrendous life-­without-­ parole cases.”46 Justice Scalia highlighted the perverse fact that death penalty defendants receive better lawyering, but his response was to ignore both the symptom and the larger disease. Instead, far more attention must be paid to the quality of ­defense ­lawyers in all types of criminal cases. Before we celebrate the decline of the death penalty we should think carefully about what we have replaced it with: a life row approaching 200,000 prisoners. Many of t­hose inmates faced the same pressures to plead guilty, but without the defense lawyering that death penalty cases receive.

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The ­future of criminal justice reform is clear: we must now address the poor defense lawyering and the horrendous risks of wrongful convictions and excessive sentences in this country. We must consider early release for prisoners, including t­hose filling the vast life rows that replaced death rows. As the shadow of the death penalty fades, we w ­ ill have to confront larger sources of error and injustice.

8 THE EXECUTION DECLINE

The steep arc of the death penalty decline looks mild compared to another trend: the even more precipitous decline in executions. As Iw ­ ill describe in this chapter, we should be troubled by how few ­people who receive death sentences are executed in the United States. Most ­people on death row languish for years or even de­ cades, only to have their death sentences reversed. The rapid decline in death sentencing shows how jurors, prosecutors, and judges have moved away from the death penalty. ­Today, our ­legal system is still coping with the cases of p ­ eople on death row who ­were sentenced to death de­cades ago. Death penalty ­trials are themselves troubling, when poor l­egal repre­sen­ta­tion, outlier prosecution practices, and shoddy evidence leads to death sentences. What we learn as the execution date approaches, however, fifteen or twenty years ­after a death sentence, is even more disturbing. Paying attention to the few who are executed means turning away from the death-­sentencing data that I have described so far in this book and turning to execution data. ­Doing so captures the arbitrariness, bias, and unfairness of the death penalty even more vividly. Vast numbers of death sentences are reversed on appeal or postconviction for serious errors, including in­effec­tive­ness of trial counsel and prosecutorial misconduct. The few death-­ sentenced inmates who are eventually executed are a more racially

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skewed group than t­ hose initially sentenced to death. Executions are even more geo­graph­i­cally concentrated and arbitrary than death sentences. Executions once occurred ­every week in the United States, and, indeed, they w ­ ere commonly festive events. Rainey Bethea was the last person publicly executed in the United States: he was hanged in 1936, in Owensboro, Kentucky. Nothing about his execution was secret. ­There ­were no medics and no phar­ma­ceu­ti­cals involved, just a rope, although, apparently, sheriffs did test dif­fer­ent brands of rope to select something dependable for a high-­profile hanging. A young black man, Bethea was convicted of the rape of an el­derly white w ­ oman. A boisterous crowd of 20,000 onlookers gathered to watch, with vendors selling food and refreshments. Hundreds of reporters came from around the country, and described how “[e]very bar was packed to the doors. Down the main street tipsy merrymakers rollicked all night. ‘Hanging parties’ ­were held in many a home.” They called it a “Ghostly Carnival” and a “Holiday.”1 Concerned responses to this “carnival in Owensboro” may have contributed to the end of public executions in the United States.2 As illustrated in Figure 8.1, executions ­were rapidly declining when the U.S. Supreme Court Justices halted executions by declaring the death penalty unconstitutional in 1972. When the court resurrected the death penalty in 1976, executions also came back. The first execution ­after ­those rulings was the 1977 Utah execution of Gary Gilmore, who notoriously waived appeals and requested his execution by firing squad. By the 1990s, t­ here ­were fifty and then almost one hundred executions per year. Since 1999, however, executions have steadily declined. ­ There ­ were only twenty-­eight executions in 2015 and twenty in 2016. This downward trend in executions raises a puzzle. One can see how beginning in about 2000, around the same time death sen-

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200 180 160 140 120 100 80 60 40 20 0 1930

1940

1950

1960

1970

1980

1990

2000

2010

Figure 8.1 ​Executions in the United States, 1930–2016. Source: Bureau of Justice Statistics, U.S. Dept. of Justice.

tences began to decline, executions also began to steadily decline. Yet t­hese trends should not necessarily track each other. Death sentences typically take ten to fifteen years to result in executions. Since death sentences began to decline in 2000, we should only just now be beginning to see a decline in executions. Why did executions decline so quickly—­even faster than death sentences? The endemic prob­lems in carry­ing out executions are part of the reason why. When Ohio executed Dennis McGuire by lethal injection, it took the state about half an hour to kill him b ­ ehind closed curtains, during which time he gasped for air, “making a snorting sound, almost a choking sound.”3 When Arizona killed Joseph Wood, he “gulped like a fish on land,” gasping 660 times for air while the state administered dose ­after dose ­after dose of

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drugs. And the evidence is strong that when Texas executed Cameron Todd Willingham, they likely killed an innocent man. Texas likely killed another innocent when it executed Carlos DeLuna. In this chapter I ­will describe the troubling data on the American execution decline and then turn to macabre botched executions and the prob­lem of executions of the innocent.

Geography and Executions Just as a small number of counties still sentence ­people to death, an even smaller number of counties answer for the shrinking numbers of executions. Although several hundred p ­ eople ­were sentenced to death per year in the 1990s, most have not been executed and ­will never be. Many have already had their death sentences reversed. For the approximately 4,800 death sentences imposed from 1991 through 2015, just over 600 executions have occurred so far, or less than one in eight cases. During that same time period, the average time from death sentence to execution was over twelve years. The vast bulk of executions since 1976 have occurred in the South, with over one-­third in Texas, followed by Oklahoma, ­Virginia, Florida, and Missouri. As of this writing in 2017, three states—­Texas (540), Oklahoma (112), and ­Virginia (112)—­together account for over half of all executions since 1976. Executions do not track murders or even death sentences. Some states simply have a more lethal machinery of death, and ­those states become far more likely to carry out executions. Even within the largest death penalty states, just a handful of counties produce the death sentences that result in executions. Take Texas. ­There are 246 counties in Texas. Yet of the over 500 executions in Texas since 1976, most occurred in a handful of counties; only 84 counties in Texas have had an execution. Harris County produced over one-­fifth of them. Harris County has pro-

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Figure 8.2 ​Counties by number of executions, 1976–2015. Source: Data collected by author.

duced the most executions of any county in the United States, with 125 executions from 1976 through 2016, followed by Dallas County, Texas, with fifty-­five executions, Oklahoma County with thirty-­nine, Bexar County, Texas, with forty-­one, and Tarrant County, Texas, with thirty-­eight.4 Oklahoma is similarly concentrated, with one-­third of its executions coming from Oklahoma County. We should think of executions as largely a local, county-­level phenomenon. Indeed, the Death Penalty Information Center describes how just fifteen counties account for 30 ­percent of the executions in the United States since 1976, although they represent just 1  ­percent of the counties in states with the death penalty. ­Those counties include major cities in large death penalty states: Houston, Texas; Dallas / Fort Worth, Texas; and Oklahoma City.5 Figure 8.2 illustrates graphically which counties have executed the most ­people; the relative size of the font loosely corresponds to the relative number of executions performed. Yet other large counties

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in death penalty states, like Los Angeles, California, and Cook County, Illinois, have had far more murders but have produced few executions. Cook County, Illinois, has had just five executions since 1976. Los Angeles has had just two.

Race and Executions Not only are executions even more geo­graph­i­cally biased than death sentences; they are also more racially biased. Murderers of black victims are much less likely to ever be executed. As I have documented at the county level, and as many o ­ thers have long studied, t­ here are race disparities in death sentencing. The pattern is a “white lives m ­ atter” pattern, wherein murder cases with white victims are far more likely to result in death sentences. Po­liti­cal science professor Frank Baumgartner has collected data on executions in the United States from 1976 through 2015. Examining ­those data, one observes that among the 1,422 executed in the United States during t­hose nearly forty years, 15 ­percent or 210 cases involved at least one black victim. In contrast, 75 ­percent or 1,070 cases involved only white victims. The remaining 10 ­percent of cases largely involved Asian and Latino victims. This split represents a stark racial disparity. American hom­i­cides are divided roughly fifty-­fifty between white and black victims. The same forces driving racial disparities in death sentencing are even more exaggerated when one sees who eventually gets executed. This fatal legacy of race discrimination provides all the more cause to end executions.

Reversals A top reason that so few p ­ eople are executed has nothing to do with botched executions or lethal-­injection drugs. It is that judges

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reverse death sentences on appeal or postconviction, including ­because they find the convicts ineligible for the death penalty, unfairly sentenced, incompetently represented, or flat out innocent. “He’s a fair man who treats every­one the same,” said a defense attorney. “He’s mean to every­one.” The defense l­awyer was describing Joe Freeman Britt, Amer­ic­a’s Deadliest Prosecutor, in Robeson County, North Carolina. Britt sent almost fifty ­people to death row, including Henry McCollum and Leon Brown. But only two ­were executed. Another died of natu­ral c­ auses in 2004. The rest, like McCollum and Brown, had their death sentences or even their convictions reversed. Once Britt left office in the mid-1980s to become a judge, prosecutors almost entirely stopped seeking death sentences in Robeson County. A single prosecutor drove an entire county’s death sentences through sheer force of personality, and even still, almost all ­those death sentences w ­ ere ultimately found flawed. The routine pro­cess of appeals and habeas consistently uncovers serious errors in death sentences and murder convictions. Across the country, most death sentences are reversed and the sentence changed to a life sentence, or even something less than that. Federal data collected by the Department of Justice described how of the over 8,000 death sentences entered from 1973 to 2013, only 16 ­percent or 1,359 resulted in executions. Forty p ­ ercent or 3,194 ­were overturned on appeal, including hundreds of cases in which the entire conviction was overturned, not just the death sentence. Still more inmates, 392, had their sentences commuted to life in prison. Over one hundred ­people have been exonerated from death row. Indeed, more inmates have been removed from death row based on appeals and commutations than have entered death row in e­ very year since 2001, according to ­these federal data. The error-­rate effect explains why so few death sentences ever result in executions. The death row reversals include findings of

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in­effec­tive assistance of counsel; concealment of exculpatory evidence by the state; other types of prosecutorial misconduct; flawed jury instructions; race discrimination in jury se­lection; and a range of other claims. As professors James Liebman, Jeffrey Fagan, Valerie West, and their coauthors found in an impor­tant study, A Broken System, judicial review takes so long in death penalty cases because death sentences are “so per­ ­ sis­ tently and systematically fraught with error.” Their study states that over two-­thirds of death sentences w ­ ere reversed from 1973 through 1995. It should be no surprise that the most common errors involved “egregiously incompetent defense l­awyers” who missed “impor­tant evidence that the defendant was innocent or did not deserve to die.”6 Louisiana provides a remarkable case in point. Since 1976, ­there have been twenty-­eight executions in the state. During that same time period ten p ­ eople ­were exonerated from death row, including two—­ Ryan Matthews and Damon Thibodeaux—­ who ­were exonerated by DNA tests. So, for ­every three Louisiana executions, t­here has been one exoneration. Of the 241 death sentences in Louisiana since 1976, professor Frank Baumgartner and Tim Lyman found that only 155 cases have been finalized, and 82 ­percent or 127 of t­hose resulted in reversals by appellate or habeas judges. Still more troubling, death sentences w ­ ere thirty times more common in cases with white victims than with black victims, and the inmates convicted of t­ hose crimes ­were fourteen times more likely to be executed. Not a single white person has been executed in Louisiana for a crime against a black person since 1752.7 As delays mount, with the average national time from sentencing to execution over eleven years, more inmates die of illness or suicide on death row. Of the inmates sentenced to death from 1973 to 2013, 6 ­percent or 509 faced the “other death,” as the federal government euphemistically characterizes a death not from

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an execution.8 With executions slowing down so dramatically, the chances of d ­ ying of natu­ral ­causes or through suicide are greater than ­those of being executed. No won­der few believe that the death penalty effectively deters would-be murderers anymore. The facts that death sentences are so error prone, that so few death sentences result in executions, and that when executions happen they happen ­after such lengthy delays are impor­tant reasons why the death penalty f­aces such intense criticism t­oday. Hardly any murders result in death sentences, but even fewer result in executions. Still more troubling is what happens when executions do occur. An epidemic of botched executions has further slowed down the machinery of death across the country.

Lethal Injection “­We’re ­going to close the blinds temporarily,” said the Oklahoma corrections officer to t­hose in the witness room. Something was ­going terribly wrong ­behind ­those blinds, something involving untested protocols and drugs of unknown origin. Just before six a.m. on April 29, 2014, the officers at the Oklahoma State Penitentiary forcibly removed thirty-­eight-­year-­old Clayton Lockett from his cell ­after subduing him with Tasers. Lockett refused his three meals that day and refused to see his l­awyers. That eve­ning, ­after medical examinations and X-­rays, five officers, called the “strap-­down team,” took Lockett into the death chamber to strap him to the gurney.9 In the room next door, three executioners remained out of sight. They planned to administer drugs through a hole in the wall via IV lines reaching Lockett. The lethal injection would begin at six p.m. The execution had already been delayed as officials frantically tried to locate a source for the necessary drugs, which the phar­ ma­ceu­ti­cal companies no longer sold or approved for lethal use.

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­ very state that has the death penalty, as well as the federal govE ernment, authorizes lethal injection as a method of execution. A few states still authorize electrocution, lethal gas, hanging, or a firing squad. By the 2000s most states had ended use of the electric chair, which produced notorious botched executions. Most replaced the chair with an injection of a three-­drug lethal “cocktail”: an anesthetic, a paralytic agent, and a drug to stop the heart and cause death. First, an anesthetic, usually sodium thiopental, would attempt to alleviate any pain to come. Second, a paralytic, usually pancuronium bromide, would make it impossible for the person to move and would suffocate them. Fi­nally, potassium chloride would kill the person by stopping their heart. So it went u ­ ntil executions in the country w ­ ere postponed by six months in late 2007, when the U.S. Supreme Court granted certiorari in the case of Baze v. Rees. This case challenged a planned execution in Kentucky, arguing that without knowing ­whether the first drug in the three-­drug lethal-­injection cocktail would be properly administered, excruciating pain could result. Potassium chloride burns through a person’s veins and can be expected to cause enormous pain in the pro­cess of stopping a person’s heart. Supreme Court Justice Sonia Sotomayor l­ater described it as “the chemical equivalent of being burned at the stake.”10 It is doubtful that a mild anesthetic, commonly used in low doses during routine colonoscopies, could c­ounter that kind of pain. The inmate’s ­lawyers argued that without any assurance that the drug would be properly administered, the chances of acute suffering ­were heightened. Moreover, the paralytic drug included in the cocktail could not only suffocate the person to death, but it could make it impossible for a person to register pain. The person could experience liquid fire burning in their veins, but would appear to observers as comatose on a hospital gurney. (One execution was not postponed, that of Michael Richards, executed on

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the same day the court took the case, ­because the court clerk refused to allow Richards’s l­awyers to file his papers a few minutes past five p.m., due to computer prob­lems in their office.)11 Ultimately, in April  2008, the Supreme Court justices ruled in Baze that ­there was enough evidence that the first drug would be properly administered so the method was not cruel and unusual punishment u ­ nder the Eighth Amendment. The deeply split justices concluded that if a state had a detailed written protocol, like Kentucky did, executions could go on.12 That ruling did not end the prob­lems with this form of lethal ­human experimentation—­they had just begun. In the years that followed, challenges to individual state execution protocols mounted. Many states did not have detailed public protocols, and officials sloppily followed what­ever protocols they had. Then the drugs became hard to impossible to find. ­Toward the end of 2009, the only com­pany in the United States manufacturing sodium thiopental ceased production a­ fter the Food and Drug Administration identified manufacturing violations. This resulted in a domestic shortage of the drug. Once international companies learned that their drugs w ­ ere being used in executions, they stopped shipping them. Many companies did not want their drugs to be any part of the death penalty pro­cess, and some stopped manufacturing them entirely. By 2010, the United Kingdom, and then the entire Eu­ro­ pean Union, banned the export of drugs like sodium thiopental.13 Growing drug shortages meant that Oklahoma, by 2010, was unable to obtain sodium thiopental. As a result, they and most other death penalty states had to turn to pentobarbital, which is used for euthanizing animals. The manufacturer of that drug, however, refused to sell it for executions. By 2014, Oklahoma could not obtain pentobarbital, and to execute Lockett officials turned to midazolam, introduced in Oklahoma and two other states as a new addition to their drug protocol. ­There was no

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reason to think that midazolam was any better at alleviating the excruciating pain caused by potassium chloride; it is normally used in fairly minor surgeries. The macabre ironies do not stop ­there. Since corrections officials w ­ ere not conducting medically approved procedures, and ­because they ­were using drugs not available in the United States, they had to turn to the grey market or even the black market to secure them. Executing states had to act like illegal drug buyers to conduct their executions. Untested drugs ­were obtained through un­regu­la­ted “compounding pharmacies.” Some states turned to illegal foreign sources.14 The entire lethal-­injection pro­cess became clandestine. Ohio, Oklahoma, and ­Virginia passed laws to keep their drug protocols secret, while other states simply refused to disclose their protocols and fought vigorously in the courts to keep their execution methods secret. Meanwhile, the American Medical Association, the American Nurses Association, the American Board of Anesthesiology, and the American Pharmacists Association (who joined the protest in 2015) all took the position that their members should not participate in executions. Indeed, pharmacists even opposed the use of the term drug for a substance used in executions.15 What happened to Clayton Lockett would shock the nation. Lockett’s l­awyers had fought for months in the courts to obtain more information about how he would be executed; the state of Oklahoma had prevailed based on its execution-­secrecy law. The ­lawyers had not seen Lockett all day. As they sat in the viewing room, the blinds r­ose at 6:23 p.m., and they saw their client strapped on a gurney covered by a sheet. Lockett had no last words. A prison paramedic had already tried three times to insert a needle in Lockett’s left arm to start the IV line, but each time it slipped out, leaving a small, bleeding wound. The paramedic tried again, and then again in a vein near Lockett’s biceps. She tried

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three more times in the right arm with no success. She asked a doctor for help, and he asked for a “needle for the jugular.” That caused blood to spread u ­ nder Lockett’s skin. Next, the paramedic tried two veins on Lockett’s right foot. Then they tried the femoral vein in his groin, but they had to “make it work” with a much shorter needle than was needed for such a deep vein. The first dose of midazolam did not all enter the vein, as the IV was dislodged. However, the doctor determined that Lockett was unconscious, and so ­after a few minutes had passed they administered the second drug, a paralytic called vecuronium bromide. Again, the IV was not properly in place, and the drug went into tissue and not just the bloodstream. Next, the third drug, potassium chloride, was administered.16 At about 6:40 p.m. Lockett regained consciousness, opened his eyes, and said, “Man.” He writhed against the gurney with his chest rising. The first drug, midazolam, intended to sedate him, clearly had not worked. His ­lawyer recalled, “It looked like he was trying to lift his ­whole upper body off the ­table, as if he was trying to sit up.” Lockett “was mumbling t­ hings that w ­ ere clearly words but I c­ ouldn’t understand.” His l­ awyer said, “It was the most gruesome spectacle I’ve ever seen in my life.”17 At 6:42 p.m., the warden ordered the blinds to the viewing room closed and the audio feed cut. Officials escorted the witnesses out. Meanwhile, b ­ ehind the blinds, the paramedic rushed in. The doctor tried to push a new needle into Lockett’s groin, but failed, instead hitting the artery. The warden ordered the execution stopped, but it was too late for that. Lockett’s breathing slowed. Witnesses differed in their accounts as to ­whether Lockett continued to move. At 7:06 p.m., Lockett was declared dead.18 A subsequent investigation by the Oklahoma Department of Public Safety noted that “­there was no formal training pro­cess” for the paramedic, the doctor, or the other executioners, and they could

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not make a determination w ­ hether the drugs used, such as midazolam, ­were effective.19 ­Lawyers asked the courts to end this type of h ­ uman experimentation and to review Oklahoma’s lethal-­ injection methods, if they could be called methods. That case, Glossip v. Gross, wound its way to the U.S. Supreme Court. Botched executions—­and their numbers are legion—­inevitably occur with ­every execution technique, w ­ hether the electric chair or hangings, as professor Austin Sarat has described in-­depth.20 Hangings largely ended ­after a botched hanging in Arizona, with gas chambers taking their place.21 Gas chambers gave way over time to the electric chair. ­After a series of botched electrocutions, including the high-­profile botched execution of Allen Lee Davis in “Old Sparky,” Florida’s chair, electrocutions gave way to lethal injection. A prob­lem with all state-­sanctioned methods of killing was that it was impossible to test an execution method. ­There is no ethical way to scientifically evaluate a method to kill h ­ umans. More fundamentally, ­there is no humane way to carry out an inherently brutal act. To quote Chief Judge Alex Kozinski of the Ninth Cir­cuit Court of Appeals, “They are brutal, savage events, and nothing the state tries to do can mask that real­ity. Nor should it.”22 Judge Kozinski was dissenting in a ruling in which the other appeals judges deci­ded that Joseph Wood, an Arizona death row inmate, could not obtain more information about the lethal injection drugs and the qualifications of the persons who would carry out his execution. Lockett had been executed in April 2014. Just a few months ­later, on July 23, 2014, the day ­after the appeals judges denied Wood relief over Kozinski’s protests, Wood would endure the longest execution in American history. “He has been gasping, snorting, and unable to breathe and not ­dying,” said the defense l­awyer in a phone call to a federal judge in Arizona. She pleaded for Wood to be revived and his execution to be halted. ­After one hour, Wood was still alive. The execution

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cocktail that the prison officials administered to Wood apparently included midazolam—­the sedative used in minor surgical procedures that was never intended for executions—­and hydromorphone, an opioid painkiller.23 We do not know for certain ­because Arizona officials fought in the courts efforts to make them disclose who manufactured the drugs, where they obtained them, how the drugs would be administered, and by whom. Wood’s ­lawyers had reasons to seek answers ­because they feared the worst. This experimental two-­drug combination had been used once before, in Ohio, for the botched, protracted execution of Dennis McGuire. Although the appeals court ordered Arizona to give more information to Wood’s ­lawyers, the Supreme Court reversed the day before the execution.24 Arizona went forward with its experiment. As he lay d ­ ying, Wood made “a snoring, sucking, similar to when a swimming-­pool filter starts taking in air.”25 For almost two hours, Wood lay gasping for air. One of his attorneys asked for a phone and called the rest of the defense team, who w ­ ere waiting back in the office. The ­lawyers filed an emergency motion with the local judge, the court of appeals, and the Supreme Court. The Arizona attorney general argued that nothing needed to be done since Wood was already brain dead. The judge then asked, “Do you have the leads connected to determine his brain state?” The attorney general responded that no, nothing like that was being done. The ­lawyers would l­ater learn that Wood was given, an hour and a half into the execution, not just a second or third dose. “Mr. Wood had been given thirteen doses,” the defense ­lawyer learned, of a two-­ drug formula “that the state’s own written protocol indicated would be administered in one single dose.”26 Despite the obvious evidence of something having gone wrong— the multiple doses, the two hours necessary to kill Wood—­non–­ medical experts ­were reduced to making judgments similar to the attorney general’s best guess that Wood was brain dead. “In

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talking with the director, who has been in consultation with the IV team leader, t­here has been no appearance of any pain,” the judge concluded. He added, “[I]t does appear to me that t­here is no serious risk of pain being experienced at this time.” Then the attorney general informed the judge that Wood had fi­nally died. The judge added, “I am not finding that t­here was not pain before,” and the phone call ended. Set aside the wisdom of a judge on the other end of a phone call reaching ­these determinations. Consider only that having judges intimately involved in such executions, with the U.S. Supreme Court permitting the execution to go forward at the last moment, places our judges in a gruesome role. A consequence of Wood’s execution was that the state did change its execution protocol, by giving ­lawyers “immediate access to a mobile phone” during executions.27 Many more states have imposed moratoria on the death penalty, most responding to botched executions, the lack of approved lethal-­injection protocols, or shortages of lethal-­injection drugs. California has the largest death row in the country, but t­ here have been no executions in California since 2006, due to the lack of a court-­approved execution protocol in the state. Other states where executions have been on hold due to injection prob­lems include Arizona, Arkansas, Colorado, Kentucky, Montana, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, and Washington. Still other states have responded not with moratoria but by g­ oing medieval. The firing squad may make a comeback, and the electric chair already has come back on the law books at least. In 2014, Tennessee brought back its electric chair, while ­Virginia’s governor rejected such a mea­sure in ­favor of hiring a pharmacy to make execution drugs in secret.28 Thus, executions have dropped for reasons quite in­de­pen­dent of the forces that have contributed to the decline in death sentences. ­There has been a loss of confidence across the country in

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the ability to carry out executions humanely. Perhaps ­there is also some feedback effect between botched executions, the execution decline, and the decline in death sentences. More compelling is the evidence that the cessation of executions in many states has had an influence on public opinion. The longer a state goes without executing anyone, the more its citizens may grow reluctant to sanction an execution. Psychologists Daniel Krauss, Nicholas Scurich, and I surveyed ­people called for jury duty in California in 2016. We surveyed 480 ­people in Orange County, which continues to regularly sentence ­people to death. We asked them questions about ­whether they would automatically sentence a murderer to death or w ­ hether they would ­favor a life sentence. Many ­people said they ­were uncomfortable with death sentences: about one-­third (32 ­percent, or 152 of 480) said they would automatically vote for life imprisonment. A remarkable 24  ­percent (114 of 480) said that they would consider finding a person not guilty of first-­degree murder knowing that a death sentence might follow. Fi­nally, we asked them ­whether the fact that t­ here have been no executions in California since 2006 makes them more or less likely to impose a death sentence. Nearly two-­thirds or 67 ­percent (313 of 462) said they would be less likely. ­These included liberal and conservative ­people and respondents who w ­ ere white and who ­were black. Even most of the 9 ­percent (41 of 480) who ­were hard-­core death penalty supporters—­that is, who said they would automatically sentence any murderer to death—­admitted that the lack of executions in California made them less likely to sentence someone to death.29 When executions happen more and more rarely, or not at all, the death penalty clearly appears more unfair to p ­ eople. That phenomenon may create feedback, making it harder for prosecutors to get death sentences. In turn, this may affect the practices of

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prosecutors over time, who may be less willing to seek the death penalty if they know that jurors are less likely to impose it. The execution decline may over time reinforce or even accelerate the decline in death sentencing.

Have Innocent P­ eople Been Executed? It is not just the means by which murderers are executed that is botched. Death penalty states are no doubt still executing innocent ­people. “I am Troy Davis,” read the signs and T-­shirts worn by hundreds of protesters in 2013, on the date of Davis’s execution, as they faced off against Georgia state troopers, corrections officers, and SWAT teams. The T-­shirts symbolized mercy at its most fundamental: empathy for another person. The Supreme Court issued a last minute stay, only to withdraw it three hours ­later, with state officials conducting the execution at 11 p.m. as chants of “I am Troy Davis” sounded into the night. I have argued that the notorious Troy Davis case was staged—­and not b ­ ecause the case attracted protests and high-­profile supporters worldwide. It was b ­ ecause the eyewitness evidence at the core of Davis’s original criminal trial was, quite literally, staged by the police.30 This was a case, as the courts l­ater concluded, that “center[ed] on eyewitness testimony.” By the time of Davis’s conviction, however, seven of the nine witnesses at the criminal trial had recanted and said they could not identify Davis, while new witnesses implicated another man as the one who shot a police officer intervening in a fight at a Burger King parking lot. At the eleventh hour, the Georgia Board of ­Pardons was considering ­whether to grant clemency to Troy Davis, and at the hearings to testify was a leading expert on eyewitness memory, Dr. Jennifer Dysart. They never gave her time to speak, however, and they denied the request for clemency.

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We all know how hard it is to remember the ­faces of strangers we encounter on the street. (Does she look familiar?) We might think that in a high-­stakes criminal case, police would take precautions to carefully test the memory of an eyewitness who saw a stranger commit a crime. Indeed, police know they must do that; they conduct lineups as one kind of test. But we have also long known that serious m ­ istakes can happen if the police suggest to the eyewitnesses whom to pick out. This can happen unintentionally if the officer r­ unning the lineup knows who the suspect is and gives inadvertent cues. It is also police misconduct if the officers openly suggest to the eyewitness whom to pick out. It is considered suggestive if the police go around showing eyewitnesses single photos of just the suspect they have in mind, or if they merely make suggestive comments. Yet somehow the police did all the above and more in Troy Davis’s case—­ another perfect storm of botched eyewitness-­ identification procedures. Police did show photo arrays to most of the eyewitnesses—­eventually. Although police made up a five-­ photo array with Davis’s picture in it, they waited five to ten days before using it to test the memories of any eyewitnesses. Why wait? Eyewitness memory decays rapidly. But during ­those five days the police plastered “wanted” posters displaying Troy Davis’s image—­the same photo they put in the photo array—­all around the neighborhood, and it ran widely on the local media outlets. Witnesses did not miss t­ hose wanted postings. Witnesses also described feeling pressured to identify Troy Davis. One testified at trial about being told, “[I]f I d ­ on’t cooperate with them, that I’m gonna be in prison for ten to twelve years.” And then, fi­nally, ­there was the staging—­a full reenactment conducted by the police. They brought three key witnesses back to the Burger King parking lot where the shooting had taken place. Police had one of them—­the man who Davis’s team maintains is

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the real perpetrator—­play a dif­fer­ent role: that of an innocent bystander. Police tried to get the eyewitnesses to agree on who was standing where. Frustrated, they then located a fourth key eyewitness and asked her “if she could place every­one in the positions that she saw them in.” This was an effort to get all their inconsistent stories straight. As a result, their stories started to merge. Only ­later w ­ ere the witnesses shown photo arrays (which ­were not conducted properly: in a blinded fashion where the officer does not know which person is the suspect). One of the witnesses recalled at trial that when he saw the photo array he told police that he was only “like 60 ­percent sure that was the guy,” ­because “I was ner­vous, I was watching the gun.” That was ­after seeing the wanted posters for ten days at the Burger King where he worked. But at trial—­where Troy Davis was sitting at the defense t­ able—­the witness pointed him out to the jury. He has since recanted. Another witness pointed out Troy Davis at trial, telling the jury, “[Y]ou ­don’t forget someone that stands over and shoots someone.” This claim must have surprised the prosecution as much as the defense, since the police d ­ idn’t even bother to show him a photo array. That’s b ­ ecause shortly a­ fter the incident, this witness told police, “I w ­ ouldn’t recognize him again except for the clothes.” He said he did see Davis’s photo in the paper the day before he testified, however. Yet another witness, who was severely injured when hit in the altercation that led up to the shooting, identified another man initially as the assailant; ­later, at the police station, he concluded that he no longer recalled who it was. He agreed at trial that police “kind of reassured” him that he had it wrong. I do not know if Troy Davis was innocent—­perhaps no one ­will ever know for sure. Police so utterly contaminated the evidence, and so much has since come to light, that t­ here was not much of

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the case against him left standing by the time he was executed. One could not imagine a new jury convicting him, much less sentencing him to death. Reading through his voluminous trial materials, I was reminded time and again of what I saw when I read t­ rials of the ­people exonerated by DNA tests, except that in Davis’s case, like in most cases, t­ here was no physical evidence to DNA test. How many innocent ­people have been executed? We ­will never know. Justice Antonin Scalia famously retorted regarding evidence of death row exonerations that no one could name “a single case” where an innocent person was executed; such an “innocent’s name would be shouted from the rooftops by the abolition lobby.”31 This obscures the fact that once a person is executed, it is very difficult to investigate a case; often the evidence is automatically destroyed. Despite the formidable challenges involved, several such names have now been shouted from the rooftops. In Texas, ­there is strong evidence that Cameron Todd Willingham, convicted largely based on discredited arson testimony, was innocent. The 1991 fire at his home that killed his three ­daughters was very likely an accident and not caused by any arson at all; no m ­ atter, he was executed. A Texas judge held a court of inquiry examining w ­ hether Willingham had been wrongly executed; former governor Mark White told the judge, “If t­here’s no arson, t­here’s no crime, and, therefore he is innocent.” The judge ordered his posthumous exoneration based on “overwhelming evidence,” but that effort was reversed by the Texas Court of Criminal Appeals. Supporters began a “Shout It from the Rooftops” campaign in Texas, and the Texas Forensic Science Commission concluded in 2009 that scientific analy­sis showed that a finding of arson in the Willingham case “could not be sustained.” It also emerged during t­ hese investigations that the

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only other evidence against Willingham, the testimony of a jail­ house in­for­mant who claimed Willingham had confessed, was given by a man who was bipolar and who had been promised leniency in a deal not disclosed to the defense.32 The in­for­mant came clean and said, “I did not want to see Willingham go to death row and die for something I damn well knew was a lie and something I ­didn’t initiate.”33 Law professor James Liebman and a team of researchers comprehensively reinvestigated the case of Carlos DeLuna, also sentenced to death in Texas, based on thin eyewitness and other testimony. The state executed DeLuna in 1989 for a murder that, they compellingly show, another man likely committed. The only evidence consisted of eyewitnesses, three of whom refused to identify DeLuna; at trial ­there was just a single eyewitness, who singled out DeLuna only a­ fter police pressured him. What makes the DeLuna case particularly unsettling was its near-­ complete “obscurity” since it was not a high-­profile crime. Liebman asks, “How much more evidence do we need that our system allows the innocent to be executed?”34 ­There are so many ways that a high-­profile murder case can go wrong. Most police still do not routinely videotape interrogations. Many police and prosecutors still do not know how to identify, much less fairly treat, intellectually disabled or mentally ill ­people. Eyewitnesses are still shown suggestive lineups. Defense ­lawyers still do not adequately investigate the history of their clients. In­ for­mants know that they can get deals, even avoiding the death penalty themselves, if they lie, and prosecutors reward them. Even in this day and age, when formerly steadfast death penalty states sentence fewer and fewer p ­ eople to death, cases continue to rely on the same unreliable evidence from unreliable sources. Has the United States executed innocents? The answer to that is yes, it certainly has.

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Back to the Court In the case of Glossip v. Gross, the Supreme Court justices caught the Arizona federal defender representing Joseph Wood by surprise during arguments about lethal injections. The federal defender was challenging the lethal-­injection practices in Oklahoma a­fter the botched Lockett execution. In an unexpected turn, Justice Stephen Breyer asked, in the ­middle of a discussion of the facts of the murder for which her client was charged, ­whether the death penalty was even constitutional, “if ­there is no method of executing a person that does not cause unacceptable pain.” The defense l­awyer responded carefully. The issue before the court had to do with lethal injection and not the constitutionality of the death penalty. She responded, “That perhaps could be true, Justice Breyer, but the narrow issue . . .” Justice Samuel Alito interjected, “And is that, is that your argument?” The defense l­awyer responded, “No.” Thereafter the justices returned to the narrow but grotesque question of w ­ hether Oklahoma was using a drug protocol that has “a substantial risk of burning a person alive who’s para­lyzed,” as Justice Sotomayor put it.35 Justice Alito, however, called ­legal challenges to execution methods a form of “guerrilla war against the death penalty,” as if defense ­lawyers w ­ ere to blame for decisions by manufacturers and countries to cease production and export of drugs for unapproved purposes.36 “Nasty tempers and ­bitter resentments” boiled over at the Supreme Court, according to journalist Dahlia Lithwick.37 Ultimately, the justices concluded that Glossip would have to have offered a proven and more humane alternative to the lethal-­injection protocol that Oklahoma was using in order to successfully challenge that protocol. In a still more bizarre twist, the justices placed the burden of proving that t­ here is a more humane way to execute on the person facing execution. What a macabre catch-22.38 Why an inmate’s

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l­awyer should be ethically permitted, much less required, to make such suggestions to the state is impossible to fathom. Justice Sotomayor called it “wholly novel” to ask inmates to prove “an alternative means for their own executions.”39 An inmate would have no idea what to challenge, what with states like Oklahoma changing execution methods without warning and keeping their execution methods and the provenance of the drugs used a secret. Meanwhile, Oklahoma signed a law approving a “foolproof” new method using nitrogen gas, a technique never used to execute h ­ umans, and which some states ban for use to put animals to sleep.40 Justice Stephen Breyer tipped his hand at the Glossip arguments, and in dissent he wrote a lengthy opinion detailing how the death penalty itself may now be unconstitutional as cruel and unusual punishment. Justice Breyer argued that endemic delay, all the while imposing “especially severe, dehumanizing conditions of confinement,” is itself cruel. Moreover, such delays are necessary to prevent the types of wrongful convictions that may arise years or de­cades ­later. Justice Breyer singled out the case of Henry McCollum and noted that although ­there are endemic delays in death penalty cases, it took twenty years ­after the Supreme Court denied relief to McCollum for new DNA evidence to surface and to prove his innocence.41 Breyer then discussed the arbitrariness of the death penalty and how rarely executions are actually carried out. He noted the “significant decline” in numbers of executions, and how “in 2014, only seven States carried out an execution.” Indeed, Justice Breyer noted how only three states now “account for 80% of all executions.”42 The decline in executions cannot be ignored by the justices on our highest court any more than it can be ignored by the ­lawyers litigating criminal cases on the ground, who must ask why their client is facing an execution or the death penalty, when in neighboring states or even counties, the risk of such an event is remote or non­ex­is­tent.

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­After the justices rejected his claims, finding the Oklahoma execution method sound enough, Glossip was just hours away from an execution in September 2015 when someone noticed that the wrong drugs had been ordered. In fact, the wrong drugs had already been used in the execution of Charles Warner earlier that year. The pharmacist blamed it on “pharmacy brain,” while the corrections official leading the execution team said he was “not very good at math in my head” and “just totally dropped the ball.” Glossip’s execution remains on hold.43 Lost in the botched-­execution debate is another concern: ­there is not much evidence of Glossip’s guilt. Glossip was convicted entirely due to evidence provided by an in­for­mant, who received life without parole in exchange for admitting to the killing but testified that Glossip hired him to do it. Another inmate recalls hearing the in­for­mant bragging about how he falsely pinned the murder on Glossip. The Oklahoma appeals judges ­were bitterly divided, three to two, over this evidence, with three saying it was not anything “new” and the dissenters saying that “the state has no interest in executing an actually innocent man.”44 As executions continue to decline, we must ask ourselves ­whether the death penalty is carried out even more rarely and arbitrarily than it is imposed. Perhaps the courts w ­ ill strike down the modern American death penalty as cruel and unusual punishment u ­ nder the Eighth Amendment. With executions vanishing and death sentences declining rapidly, ­today’s death penalty is unusual in the extreme. ­After the death penalty is gone, however, the under­lying prob­lems ­will remain. The manifold flaws in executions, the high reversal rates on appeal, and the evidence of innocents murdered by the state are glaring symptoms of systemic flaws in our system. We must now try to cure the disease that afflicts American criminal justice.

9 END GAME

The death penalty has long been a bellwether. If we are experiencing its end game in the United States, this begs a dif­fer­ent question: could the death of the death penalty point the way ­toward a new day for criminal justice? Call it “mission creep”: concern about flawed death sentences encourages reforms to improve the quality of criminal cases more broadly. The death penalty decline, I believe, is accompanying a change in how we view punishment in general. The same evolving standards of decency force more and more of us to question not only the death penalty, but also other punishments, especially when considered alongside the botched cases that convict the innocent and the undeserving. Although we should celebrate the cumulative reasons driving the demise of the death penalty, we can neither be complacent, given contrary impulses in the national mood, nor can we miss a historic opportunity. Once we move beyond the death penalty, with its “death is dif­fer­ent” focus on a bright line between death sentences and all other sentences, new shades of grey emerge. We are experiencing an awakening in Amer­i­ca. It has been over forty years since the Supreme Court brought back the American death penalty. We have spent billions on the death penalty in the years since, and what do we have to show for it? Take the state of Georgia. It was Georgia that lost the Furman v. Georgia case, in

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which Supreme Court justices struck down the death penalty, but the state won a 1976 case bringing the death penalty back. In Georgia, almost seventy ­people have been executed in the four de­ cades since. It was in Georgia that Professor David Baldus and his colleagues systematically researched the role that race plays in death sentences, producing remarkable evidence that the Supreme Court then disregarded. It was in Georgia that Troy Davis was executed despite high-­profile concerns about his innocence, while two other Georgia inmates w ­ ere exonerated from death row. In Georgia, executioners carried out five of twenty-­eight executions in the United States in 2015—it was a busy year for the Georgia death chamber. Yet in Georgia ­there ­were no death sentences at all in 2015. ­There was just one capital trial, and the result was a life sentence, for a man who represented himself at trial. The state capital defender convinced prosecutors to drop the death penalty in e­ very one of the twenty-­nine cases the office handled that year.1 In 2016, Georgia carried out nine executions, but ­there w ­ ere again no death sentences. Public support for the death penalty continues to decline: fewer than half of Americans now support it, and opposition to it has reached the highest levels seen in more than forty years.2 Public opinion among both liberals and conservatives has increasingly turned against the death penalty. To be sure, in 2016, California voters deci­ded to retain the death penalty, as did voters in Nebraska. Perhaps voters are of two minds about the death penalty, or perhaps some ­people like the idea of the death penalty in the abstract, but when confronted with individual cases they reject death sentences. At the state and local level, more and more voters reject politicians who keep up a 1990s-­style tough-­on-­crime approach. Amer­ i­ca’s deadliest prosecutors are losing elections. The prosecutor in Caddo Parish, Louisiana, who said, “[W]e need to kill more

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­ eople,” left office in 2015 to be replaced by an African American p former judge. For the first time in de­cades, in fall 2016, voters rejected an incumbent prosecutor in Florida, replacing the district attorney who had put Duval County in the top sixteen death-­ sentencing counties in the country since 2010. The new prosecutor plans to create a conviction-­integrity unit and a review board to decide ­whether to seek the death penalty. In 2016, Houston voters elected a new prosecutor who campaigned for reducing death penalty prosecutions and adopting criminal-­procedure reforms. The new prosecutor in Denver, Colorado, announced that as far as the death penalty goes, “We are [done] ­under my administration,” and “I ­don’t think the state should be in the business of killing ­people.”3 In local t­ rials, jurors are rejecting death sentences in cases like the Aurora theater trial in Colorado, the high-­profile “Beltway Sniper” case of Lee Boyd Malvo, and the case of accused 9 / 11 conspirator Zacarias Moussaui. Jurors are not choosing mercy only in high-­profile cases, with top ­lawyers and ­trials that last weeks. This is also happening in small-­town cases across the country that only the locals are following. In contrast, in cases like the Dylan Roof trial, in Charleston, South Carolina, in which Roof was allowed to represent himself and presented no real mitigation evidence, the jury imposed the death sentence that he all but asked for. Despite apocalyptic-­sounding tough-­on-­crime talk resurfacing in American politics, the real­ity is that crime continues to decline as both sides of the deep po­liti­cal divide agree that the tough-­on-­ crime path was wrong. At the state and local level, reforming criminal justice is a bipartisan priority. New attitudes to the death penalty reflect this. Take t­ hese words from a North Carolina politician: “As a conservative seeking to find the best way to protect the residents of this g­ reat state from crime, I believe the death

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penalty has had its day in North Carolina.” The politician added that he and other conservatives wanted to prevent “debacles” like a botched execution in Oklahoma.4 In Missouri, conservative lawmakers introduced legislation to abolish the death penalty, with supporters calling it “an inefficient, bloated program that has bogged down law enforcement, delayed justice for victims’ families and devoured millions of [dollars in] crime-­fighting resources that could save lives and protect the public.”5 In Colorado, the governor was reelected in 2014, despite abandoning his support for the death penalty. On the other side of the po­liti­cal spectrum, liberals who a de­cade earlier might have feared being lambasted as soft on crime now openly question the death penalty. Then–­ attorney general Eric Holder said in 2014, “I personally am opposed to the death penalty.” In a system “made up of men and ­women making decisions, tough decisions,” m ­ istakes like wrongful executions can happen, “[a]nd I find it hard to believe that in our history that has not happened.”6 ­People have become far more engaged in criminal justice reform, from “ban-­the-­box” campaigns to improve access to employment for former convicts, to advocacy for treatment alternatives for the mentally ill. As part of this enthusiasm for change, one sees new allies in opposition to the death penalty. A network called Conservatives Concerned about the Death Penalty has led the charge against the death penalty in Nebraska and other states. Religious groups increasingly join calls to abolish the death penalty. The Catholic church has long opposed the death penalty and began to do so unequivocally u ­ nder the late Pope John Paul II. It was no surprise when Pope Francis forcefully stated in 2016, “The commandment ‘You s­ hall not kill’ has absolute value and applies to both the innocent and the guilty.”7 Perhaps more surprising, the National Association of Evangelicals, a group that in the 1970s had called for bringing back the death penalty, has now stated

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that, although they share differing views on capital punishment, since “all ­human systems are fallible . . . ​evangelicals are united in calling for reform to our criminal justice system.”8 That statement captures how death penalty cases used to provide the reason for ­people to support restricting criminal-­ procedure rights across the board, but ­today, the death penalty seems to be encouraging efforts to improve criminal justice. Governors’ races, local prosecutors’ races, and judicial elections had long featured the death penalty as a lightning rod for candidates, but ­today, the death penalty symbolizes new concern with avoiding undue costs in criminal justice, preventing wrongful convictions, new thinking about rehabilitation, and the need for mercy. For de­ cades, the death penalty provided a high-­profile public stage on which ­lawyers and citizens weighed vengeance against mercy. Professor David Garland famously called the American death penalty primarily a “communication system,” about “mounting campaigns, taking polls, passing laws, bringing charges, bargaining pleas,” and “threats rather than deeds.”9 Now the scales have tilted ­toward mercy. When the death penalty goes the way of other cruel and unusual punishments, we should remember the lessons learned from the ­great American death penalty decline. Each of the chapters in this book has described a key lesson: (1) guilt cannot be presumed even in the most serious criminal investigations and ­trials, and the wrongful conviction of some defendants is inevitable ­unless careful mea­sures are put into place to safeguard evidence during police investigations; (2) ­mental health questions are endemic in criminal cases; (3) larger forces like crime declines and public opinion may not be enough to change how cases are handled on the ground; particularly ­because (4) poor lawyering is also endemic, but decent team lawyering can make all the difference between life and death by showing how even a murderer is a h ­ uman being deserving of

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individual consideration; (5) gross arbitrariness is replete in a geo­ graph­i­cally fragmented system where local prosecutors call almost all the shots, but central review and resources can mitigate errors and unfairness; and (6) each of ­these lessons ­will be crucial to bear in mind as harsh punishments like life sentences multiply. Two concerns should haunt anyone attending t­hese lessons. Suppose that tough-­on-­crime rhe­toric returns, crime begins to rise again, or lawmakers strip funding from the trial l­awyers ­handling death penalty cases on the ground. Or suppose that ­these lessons tell us something about the challenges posed by the death penalty but say nothing about the wider needs of criminal justice reform.

Emblems of Tough on Crime In the heyday of the death penalty, politicians showed that they ­were “tough on crime” by ­doing more than pushing the death penalty: they used the death penalty to justify passing a raft of other tough-­on-­crime laws. We have seen what can happen if the death penalty is treated as emblematic of criminal punishment more broadly. For example, lawmakers passed national and state legislation stripping away prisoners’ rights to address concerns about the endemic delays in death penalty cases. Many of t­hese laws deserve blue-­ribbon prizes in the category of most Kafkaesque. Consider the federal Antiterrorism and Effective Death Penalty Act (AEDPA), which Congress hastily passed and President Bill Clinton signed in response to the Oklahoma City bombings in 1996.10 That law sharply restricted access to habeas corpus remedies in all cases, not just death penalty cases, and its byzantine rules have decimated prisoners’ rights. Habeas corpus provides a “safety valve,” a way for prisoners to obtain relief as a last resort in the federal courts if the state courts fail to remedy constitutional violations. It is not easy to prove a constitutional violation,

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and federal judges only rarely reversed convictions. Now judges’ hands are largely tied. The law was terribly drafted, making basic procedures for seeking relief in the courts impossible for all but the most sophisticated l­awyers to understand. Supreme Court Justice David Souter once wrote that “in a world of silk purses and pigs’ ears, the Act is not a silk purse of the art of statutory drafting.”11 Prisoners find the rules bewildering, and judges do not have an easy time understanding AEDPA ­either. For example, ­under AEDPA, judges must deny relief to a prisoner if their constitutional rights ­were ­violated at trial but if state judges rejected their claims in a way that was “reasonable” at the time, based on Supreme Court law. How can an outright constitutional violation be a “reasonable” one? The state court judge must have been more than merely wrong. Yet state judges usually deliver summary opinions that themselves do not describe their reasoning—­how do you know if the judge’s unstated reasons ­were “reasonable” or not? Any such reasonableness is in the eye of the beholder, giving judges license to allow terrible constitutional violations to stand. The Supreme Court has recently emphasized that only if no “fairminded jurists could disagree” about w ­ hether a state judge got it wrong can a judge grant a prisoner habeas relief—­a totally circular standard.12 The notion that a federal judge cannot grant relief in a properly brought case to a prisoner whose constitutional rights ­were ­violated is deeply troubling. Conservative federal appeals judge Alex Kozinski says the law should be repealed, since judges “now regularly have to stand by in impotent silence, even though it may appear to us that an innocent person has been convicted.”13 The AEDPA also included a one-­year time limit on filing a federal habeas petition. One might think that a one-­year time limit would be a ­simple ­matter to enforce, and that an entire year would be a reasonable amount of time to prepare a court filing. But the

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AEDPA made a hash of it. The year is sometimes ticking while state proceedings are g­ oing on. Sometimes the year starts to tick when a petition is filed to the Supreme Court, and sometimes it ­doesn’t. ­Lawyers get tied up in knots by complex rules, some based on U.S. Supreme Court opinions, regarding when the clock is ticking and when it is not. What if new evidence of innocence comes to light years afterward? The one-­year time limit includes a narrow exception for new evidence, but it provides no help if the ­lawyers ­were not sufficiently “diligent” in locating it earlier. What if the death row inmate’s l­ awyers ­were incompetent or w ­ ere denied the chance to get access to the new evidence? What if a death row inmate’s incompetent ­lawyer outright misses the deadlines? Then the prisoner may often suffer the consequences, although in extreme situations the Supreme Court has granted relief. Even a one-­year deadline, the seemingly simplest part of the AEDPA, has been overly harsh and a failure. Of course, the vast majority of prisoners have no ­lawyer at all to help them file habeas petitions, and they must try to follow the arcane rules on their own. Ninth Cir­cuit Judge Stephen Reinhardt calls the AEDPA a “a twisted labyrinth of deliberately crafted ­legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession.”14 The AEDPA should be taken off the books. It is an embarrassment for the federal judiciary, and it denigrates the importance of the Constitution. Not just the federal lawmakers, but also state lawmakers, used the death penalty as a justification to impose filing deadlines and other hypertechnical procedural rules that could cause a prisoner’s appeal or habeas petition to be thrown out. ­Those rules threw obstacles in the way of reviewing all criminal cases, not just death penalty cases. In 2013, Florida passed a “Timely Justice Act,”

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which, among its provisions, requires the governor to sign a death warrant within thirty days of a clemency review and schedule an execution within 180 days.15 Without adopting mea­sures quite so extreme, many death penalty states fast-­tracked death penalty cases so that appeals would skip the intermediate courts and instead go straight from the trial judge directly to the state Supreme Court. States “streamlined” appeals in reaction to the surge in death sentences in the 1980s and 1990s. Texas passed a 1995 law fast-­tracking death penalty cases to its Court of Criminal Appeals.16 ­Virginia’s Supreme Court was notoriously fast, rarely granting relief in death penalty cases, giving them first priority on its dockets, and issuing opinions in “­little more than three months,” according to one study.17 Despite all this attention to speeding up justice, delays remain endemic. If anything, federal habeas proceedings take even longer ­today than they used to. Back in 1960, the average delay from sentence to execution was just two years. Now it is about eigh­teen years. Why is this? Death penalty cases are complex and error-­prone. As law professor James Liebman and his coauthors found in studying death sentences from 1973 to 1995, “American capital sentences are so per­sis­tently and systematically fraught with error,” and judges reverse so many death sentences that delays are endemic.18 Supreme Court Justice Stephen Breyer emphasized this in a dissenting opinion, noting that the de­cades of delays in death penalty cases makes them a poor deterrent for would-be murderers, but also that ­these “excessive delays” for individuals mostly kept in solitary confinement are cruel. Moreover, it is only b ­ ecause of delay that scores of inmates like Henry McCollum could be exonerated; Justice Breyer noted that it took thirty years a­ fter he was sentenced to death, and twenty years a­ fter the Supreme Court itself denied relief to him, for t­ hose DNA tests to fi­nally be done: “If McCollum had been executed earlier, he would not have lived to see the

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day when DNA evidence exonerated him and implicated another man.”19 Lawmakers tried every­thing to grease the wheels of the machinery of death. In 1995, Congress eliminated the funding for twenty regional capital postconviction offices, which handled federal habeas petitions for mostly state death row inmates, finding them unnecessary since court-­appointed ­lawyers could h ­ andle the cases. The resource centers saved money, since they paid l­awyers a fairly low fixed salary rather than an hourly rate.20 But Congress was not trying to save money, and lawmakers ­were willing to spend more for worse l­awyers, since having competent habeas ­lawyers in offices simply created “think tanks for l­egal theories that would frustrate the implementation of all death sentences,” as one congressman put it.21 States did the same, eliminating funding for capital appeals and postconviction offices. Florida did so, replacing them in 2003 with a pi­lot program of court-­appointed ­lawyers, which led to what Florida Supreme Court Justice Raoul Cantero called “some of the worst lawyering” he had seen.22 In addition, states generally slashed public defenders’ bud­gets, even as expensive death penalty cases swallowed up a greater share of their bud­gets. The multiple and mounting absurdities are nicely reflected in “Ashley’s Law,” which Texas lawmakers enacted in reaction to a 1993 kidnapping and murder of a seven-­year-­old girl. It legislated expanded punishment and registry requirements for sex offenders, a response to the fact that the man sentenced to death for the crime, Michael Blair, had a prior sex offense. U ­ nder the punitive registry requirements, convicts and even some individuals not convicted can be placed on the registry. Their driver’s licenses are marked, their photos are placed on the Internet, and their neighbors are notified. ­There is growing evidence that such punitive registration laws do not deter sex crimes—­and they may even

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encourage recidivism.23 The face of the effort to pass that law, Michael Blair, was innocent of Ashley’s murder. He was convicted based on unreliable forensic testimony that included hairs and a fiber. ­After a DNA test conducted in 2000 did not match Blair, Texas lawmakers, who continued to make the sex offender registry requirements more onerous, declared that the Blair case had “no connection” with the law, which remains in place long a­ fter 2008, the year Blair fi­nally left death row, exonerated by one more round of DNA testing.24

Texas as a Model The fifteen-­foot bronze statue of Tim Cole, shown clutching a book with the title Lest We Forget, was unveiled in Lubbock, Texas, in 2014. It tells a dif­fer­ent story—­one in which the death penalty becomes an emblem for how to rethink criminal justice more broadly. Cole was convicted of rape in 1986 and exonerated by DNA testing in 2010—­eleven years too late; he died in prison in 1999.25 Texas is now the poster-­child state for reforms to prevent wrongful convictions. Lawmakers convened a Timothy Cole Advisory Panel on Wrongful Convictions in response to his case, and in 2011 it recommended an entire platform of changes. Texas lawmakers have already enacted many of t­hose recommendations. In 2011, Texas a­ dopted a new policy on eyewitness identifications and required all police departments to use ­these improved practices. Lawmakers passed a law broadening access to DNA testing and allowing prisoners to reopen their cases based on a showing that their conviction was built on outdated or discredited scientific evidence. A Texas Forensic Science Commission made recommendations and conducted audits of forensic science in the state. Texas lawmakers enacted the Michael Morton Act in

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spring 2013. The law is named ­after a man who spent twenty-­five years in prison before being freed by DNA testing on a bandanna near the crime scene, which implicated another man for the murder of his wife. The prosecutors had concealed evidence of Morton’s innocence, including statements by his son that “­Daddy” was “not home,” statements by neighbors, a footprint, and the bandanna itself. The new law requires an “open file” so that prosecutors share all their evidence, as soon as practicable, with the defense ­lawyers. Lawmakers convened a Timothy Cole Exoneration Review Commission as well, and in 2016 a further report recommended still more changes, including recording of interrogations, which has not yet been ­adopted.26 One might respond that if it can happen in Texas, the state that has executed more ­people in modern times than any other state in the country, then it can happen anywhere—­except that it is no accident that Texas has made t­ hese changes. P ­ eople in Texas have learned hard lessons from death penalty cases gone terribly wrong. Or consider the case of Kirk Noble Bloodsworth, a former marine with no criminal rec­ord who was sentenced to death for the rape and murder of a nine-­year-­old in his neighborhood near Baltimore. “In a ­matter of days, I became the most hated man in Mary­land,” he said. Five eyewitnesses had misidentified him, and faulty forensics linked him to the crime. Bloodsworth recalled: Life at the Mary­land State Penitentiary can only be described as hell on Earth. I still have nightmares about it. Imagine living in a cell where you can only take three steps from the back wall to the front door. . . . ​My cell was directly u ­ nder the gas chamber where I was sentenced to die. . . . ​The guards thought it was funny to remind me of that fact. They would describe the entire procedure in detail and laugh at my fate.27

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In 1993, almost nine years ­later, DNA tests exonerated him. For years now, Bloodsworth has personally lobbied for a range of reforms. The U.S. Congress passed the Kirk Bloodsworth Post-­ Conviction DNA Testing Program, which provides funding to states to do DNA tests that might shed light on innocence. Mary­ land abolished the death penalty a­ fter Bloodsworth personally pushed for repeal. The director of Mary­land Citizens against State Executions noted at the time, “No single individual has changed as many minds as Kirk.”28 Blair, Bloodsworth, Cole, and Morton are the tip of an iceberg. So many exonerees want to tell their stories that some have started an organ­ization, Witness to Innocence. DNA exoneree Ray Krone, who had been sentenced to death in Arizona, started the organ­ ization with abolitionist ­Sister Helen Prejean. To date, they have played a role in repeal campaigns in Mary­land, as well as in Connecticut, New Mexico, New Jersey, Illinois, and Nebraska, and they continue to speak out across the country.

Empathy over Punishment Super­natural forces did not rid us of the death penalty—­people did it, toiling for de­cades, and for that reason, even if crime swings up, the death penalty w ­ ill continue to fade. The decline in the death penalty has been due to the decline in murders, but also due to incredibly challenging work by ­lawyers who litigate in the trenches in the most steadfast death penalty states, uncover high-­profile wrongful convictions, contest execution protocols, and push litigation and reforms. Moreover, as mercy prevails in the courtrooms, the scattered and arbitrary death-­ sentencing counties lose their “muscle memory” and cease to seek the death penalty. I believe that the death penalty decline is deeply ingrained. The real aberration was the unpre­ce­dented punishment binge

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during the tough-­on-­crime era of the 1970s through the 1990s. That era is coming to an end. The story of ­human pro­gress since the time of the Enlightenment has been a story of moving away from harsh punishment. Initially, the United States rejected as cruel and unusual executions in public that used gory methods like drawing and quartering and burning alive. Our pro­gress did not end, though, when we abandoned medieval forms of torture in ­favor of public hangings. Public executions remained popu­lar entertainment in the United States well into the last ­century, with extrajudicial lynchings in the South as brutal as anything in medieval ­England. In the past ­century, executions in this country shifted to a “sanitized” and “medicalized” approach. The electric chair was introduced to make executions more scientific and humane. When botched executions established that they w ­ ere neither, gas chambers w ­ ere introduced, but they faded a­ fter World War II due to associations with Nazi genocide. Lethal injections are now the primary execution method used in e­very U.S. death penalty jurisdiction, and predictably, many of ­those executions are also botched. It is l­ittle appreciated that one cannot humanely test any technique for killing p ­ eople to ensure its reliability. As professor Austin Sarat has detailed, botched executions are inevitable—as is ending the death penalty.29 We might thank more humane approaches ­toward criminal punishment for the decline in violent crime. The “most significant and least appreciated development in the history of our species” may be the global decline of h ­ uman vio­lence, argues psy­chol­ogy professor Steven Pinker in his book The Better Angels of Our Nature.30 The larger forces at work may go beyond the death penalty. Pinker attributes the decline in vio­lence generally to a range of reasons, mostly having to do with a modern civilizing pro­cess as humane ideas and practices increasingly bind us together and

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make a cycle of retaliation untenable. Indeed, Pinker argues that the same human-­rights ideas that may be eroding support for the death penalty may also be causing this decline in vio­lence. The data Pinker marshals to show the decline in vio­lence over time and across so many dif­fer­ent types of socie­ties help to explain why abolishing the death penalty does not increase crime. Instead, abolition has accompanied declines in violent crime in the countries that have abolished the death penalty. The reverse implication of this argument is that a new fraying of the moral and economic bonds of the modern liberal state could increase vio­lence. We must work to ensure that the angels overcome the dev­ils in our nature.

­ ill the Supreme Court Abolish W the Death Penalty? “Welcome to Groundhog Day,” wrote Justice Antonin Scalia, always the most fervent death penalty defender on the Supreme Court, in response to calls that the court abolish the death penalty. This was in 2015, when, yet again, a death row inmate was arguing that the death penalty ­violated the Eighth Amendment, and yet again, “a vocal minority of the Court . . . ​insist that now, at long last, the death penalty must be abolished for good.”31 Could this time be dif­fer­ent? Perhaps the Supreme Court could do it again, as they did in Furman v. Georgia, which abolished the death penalty nationwide. The justices must remain chastened by what happened ­after Furman, though, when the court made its embarrassed about-­face just four years l­ater, with public support for the death penalty resurgent and a backlash against the court’s interference materializing. Once bitten and twice shy, perhaps. When “a country of over 200 million p ­ eople inflicts an unusually severe punishment no more than 50 times a year, the infer-

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ence is strong that the punishment is not being regularly and fairly applied,” wrote Justice William Brennan when the court struck down the death penalty in 1972.32 The story of the g­ reat death penalty decline raises complex constitutional questions. The Supreme Court has long been concerned with arbitrariness as evidence that the death penalty is a cruel and unusual punishment ­under the Eighth Amendment. ­Today we are a country of over 320 million, and we are imposing it less than fifty times a year. We now have about ten thousand murders a year—­and only a few dozen result in death sentences. Most of the remaining death sentences are imposed in states like California that are not carry­ing out executions. The American death penalty is now arbitrary in the extreme. “­These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote in his opinion in Furman v. Georgia. ­Today, in fact, the odds of a death sentence for a convicted murderer are not so dif­fer­ent than the odds of being struck by lighting. Supreme Court Justices still talk about abolishing the death penalty. Some do it only when they are about to retire or have retired. Supreme Court Justice Harry Blackmun did that, then Justice David Souter and then Justice John Paul Stevens. Breaking that pattern, in his 2015 opinion in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, suggested categorical opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country. Justice Breyer added concerns about wrongful convictions, arbitrariness, and delay—­and so he called for full briefing on w ­ hether the American death penalty violates the Eighth Amendment.33 In 2016, Justice Sonia Sotomayor noted that many have questioned the fairness and reliability of the death penalty, and in

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a sharp dissent she argued that for defendants “whose lives are marked by extensive mitigation circumstances that might convince a jury to choose life over death,” it is crucial that the jury be given the chance to “make the weighty—­and final—­decision w ­ hether 34 such a person is entitled to mercy.” The research I have presented provides new reasons to be concerned with the constitutionality of the death penalty. The death penalty is an outlier phenomenon in a small number of counties. Furthermore, if one of the d ­ rivers of the decline is improved lawyering, then t­here is an added concern over the right to counsel protected u ­ nder the Sixth Amendment, as well as the Eighth Amendment right to be ­free from cruel and unusual punishment. If ­people are sentenced to death b ­ ecause the state gives them the worst l­awyers, and not ­because they are the worst murderers, then ­today’s death penalty becomes all the more troubling. Where race and arbitrary differences among county prosecutors play a driving role in death sentencing, then the punishment exists only as a bigoted relic of our past. Perhaps we should not even be looking to the courts to abolish the death penalty—we can do it ourselves. Some law professors think the courts provide false hope, and only by changing public opinion and the law on the ground can meaningful and lasting change occur. Then again, the pace of social and ­legal change in recent years on other constitutional issues has surprised many observers. None thought that same-­sex marriage would be so quickly ­adopted in states and then found constitutionally protected by the Supreme Court. Are t­ here lessons from the same-­sex-­marriage movement, which resulted in a victory in the Supreme Court, for the anti–­death penalty movement? The same-­sex-­marriage litigators achieved victories in many lower courts before they took their case to the Supreme Court, building a substantial factual rec­ord in the pro­cess. They also achieved victories in state­houses. Anti–­

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death penalty forces have done the same, actually, with more states abolishing the death penalty and vanishingly few death sentences on the ground. Groundhog Day ­will repeat itself many times in the years ahead. Death row inmates are filing briefs, heeding Justice Stephen Breyer’s call to bring to the Supreme Court the question w ­ hether the entire death penalty is unconstitutional. Some law professors argue that the courts have constructed the American death penalty since the 1970s, and that it must be the courts that fi­nally reckon with their creation. Still, it is not at all clear that many on the Supreme Court would make such a bold move a­ fter de­cades of incremental regulation of the death penalty. The justices may be too invested in the modern death penalty they created. Law professors Carol and Jordan Steiker, in their magisterial book describing the Supreme Court’s de­cades of experience regulating capital punishment, conclude that the death penalty w ­ ill ultimately be abolished not “primarily ­because of noble considerations marking moral advancement,” but instead ­because it is a “failed and perhaps impossible effort” to use the death penalty consistent with the Constitution.35 Justice Antonin Scalia thought that the issue must be left “to the P ­ eople to decide.”36 Perhaps he was right, and perhaps the Justices are unlikely to abolish the death penalty any time soon. State court judges may be more likely to do so, and litigation is underway in several states. Still more impor­tant, ­because it is a failed effort, as Carol and Jordan Steiker describe, the p ­ eople are already d ­ oing away with the death penalty as voters and as jurors. One more sign of this change is that the desire for mercy increasingly comes from perhaps the most unlikely source: the survivors and the ­family members of the victims. As public support for the death penalty wanes, more f­ amily members of murder victims ask prosecutors not to seek the death penalty. The ­sister of

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the victim of a mass shooting in California commented that she wanted the culprit to die “alone and unnoticed,” serving life in prison so that “next time we see his face in the paper, it would be for his obituary.” A district attorney in Texas commented in 2015 that “a healthy percentage” of victims’ families now say they do not want the prosecutors to seek the death penalty.37 Prosecutors do not have to listen to them, but they of course try to serve their community and crime victims. In death penalty cases, the Supreme Court permitted broad use of victim-­impact testimony in its 1991 decision in Payne v. Tennessee.38 One concern is that jurors ­will sentence ­people to death if the victim’s f­amily members speak in an articulate, impassioned way in support of the death penalty, or just appeal to the jurors.39 While the court did impose minimal bound­aries on the use of victim-­impact testimony in death penalty cases, in a number of states juries can freely hear victim-­impact testimony at sentencing. In many states, victim-­rights statutes entitle victims to be heard. More f­amily members expressing discomfort with the death penalty can therefore have a real impact. While it is notable that attitudes of victims have so dramatically changed, the phenomenon raises the question w ­ hether the victim’s desires, including t­ hose for revenge, make sense in a modern criminal justice system. Why should it ­matter ­whether one victim supports the death penalty and one does not? ­Shouldn’t the question be w ­ hether the murderer r­eally was one of the “worst”? More broadly, outcomes should not hinge on how sympathetic or articulate victims are in criminal cases. The modern death penalty revolves around race. Study ­after study has documented how black lives do not ­matter as much, while cases in which the victims are white far more often result in death sentences. The role of victims extends beyond criminal t­ rials. Parole boards may routinely deny parole, even to older prisoners posing negligible risks of recidivism, b ­ ecause the victims speak up at the parole hearings in op-

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position to parole. Many states have eliminated parole, but the ones that keep it use parole hearings that are often secret, with decisions not explained, guidelines left unclear, and nearly blanket denials of parole routine. In surveys, many parole board members say that victim input is “very influential.”40 We need to move from retribution ­toward rehabilitation to benefit all. Moving beyond the death penalty opens new possibilities for rethinking overly harsh punishments. Judges need to reexamine the constrained “death is dif­fer­ent” understanding of what is cruel and unusual punishment to consider the proportionality of sentences far beyond just death sentences. Slowly, the courts have considered how life-­without-­parole sentences can be excessive, for juveniles at least. But the Supreme Court has tolerated lengthy sentences u ­ nder “three strikes” and other habitual-­offender laws designed to put recidivists away for very long sentences. It has upheld a life sentence for a person convicted of stealing $120.75, and a California “three strikes law” sentence of twenty-­five years to life for a burglar who shoplifted three $399 golf clubs.41 While the Supreme Court has said that the Eighth Amendment forbids only “extreme sentences” that are “grossly disproportionate to the crime,”42 ­people can change their minds about the standards for what is grossly disproportionate punishment. Twenty years ago draconian mandatory minimum sentences for drug possession ­were the norm. In 1991, the Supreme Court approved a life-­ without-­parole sentence in Michigan for possession of one and a half pounds of cocaine.43 ­Today, many states have legalized medical marijuana, and some states have legalized all possession of small amounts of marijuana. California has made all drug possession a misdemeanor rather than a felony. Lee Carroll Brooker, a seventy-­five-­year-­old veteran, was arrested for growing a few dozen plants containing just over two pounds of marijuana to treat his chronic pain. In Alabama, where Brooker lives, the law

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says that certain prior felons can get a life-­without-­parole sentence. The Chief Justice of Alabama’s Supreme Court called this sentence for a nonviolent crime “excessive and unjustified”—­but it was still the law.44 In 2016, the U.S. Supreme Court declined to intervene in his case. If the judges w ­ ill not step in to rein in overly harsh punishments, they w ­ ill be left b ­ ehind. The public and lawmakers are coming to terms with de­cades of disproportionate punishment. Over thirty states have enacted “justice reinvestment” mea­sures designed to reduce prison populations, reduce sentences, and direct the savings ­toward rehabilitation. Mary­land, for example, in “the largest and most comprehensive criminal justice reform to pass in Mary­land in a generation,” plans to reduce its prison population by 1,000 over the next de­cade, saving $80 million.45 Imagine the savings if the billions spent on the death penalty ­were redirected t­ oward rehabilitation and public safety and if the same ­were done for other serious crimes. Just as a society benefits from a peace dividend when a time of war ends and defense spending can be reduced, as the war on crime ends it is time for us to reap the rewards of a mercy dividend. That is why the end of the death penalty can mean a new beginning for criminal justice.

10 THE TRIUMPH OF MERCY

“Mercy triumphs over judgment,” goes the often-­repeated phrase in James 2:13. The phrase is one of many in the New Testament and the Old that emphasize forgiveness over the strict letter of the law. What makes it special, though, is the idea that mercy does not merely overcome vengeance, but that in the end it triumphs. Mercy is to be celebrated. So, too, should we celebrate the evolution of the death penalty over the centuries, a pro­cess in which mercy has slowly but surely triumphed over judgment.1 The brief Biblical passage mixes ­human and divine judgment in a complex way. The passage appears less than completely merciful in context, since it goes on to say, “For judgment is without mercy to one who has shown no mercy.” That second sentence seemingly supports vengeance and retribution against ­people like murderers. That was what the prosecutor in the Aurora trial asked the jurors to consider when he emphasized that James Holmes had showed no mercy to his numerous victims. However, the entire passage refers not just to the fallible ­human judgment of ­people such as jurors or judges, but rather divine judgment. The ambiguity of the concept of mercy triumphing over judgment is part of its power. The passage suggests that divine mercy ultimately triumphs, but that in our own lives we can share that mercy. Tellingly, the passage appears in a section describing the

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importance of everyday good works, particularly compassion for ­those less fortunate and in need. I am no biblical scholar or theologian, but the awakening of mercy that is driving the demise of the death penalty seems to have its parallel in this passage’s exhortation that the least desirable ­ people deserve our mercy, ­because we ­will be judged by how well we have shown mercy to ­others. That is why the message has resonance for criminal punishment. ­Whether the state adopts one form of justice or another, we need to think about mercy in our own lives. As the defense ­lawyer in the Aurora theater shooting trial said at sentencing, “Justice without mercy is raw vengeance. Mercy is what makes us civilized.” The mercy recommendation, as judges sometimes call it, gives everyday citizens serving on a capital jury the ultimate power of life and death: the choice ­whether to sentence a person to death or not. This power of the p ­ eople is central to the modern American death penalty. It is the reason we give jurors the chance to consider a person’s entire life story as they decide w ­ hether to impose the death penalty. As a society, we can exercise the mercy recommendation on a large scale. We can reconsider w ­ hether we want to remain the country that imprisons more p ­ eople than any other. This is the land of the ­free. Yet American incarceration peaked in 2008 at well over two million prisoners, with millions more held in local jails. Hopefully the recent downward trend ­will continue, but far more serious work must be done to make a lasting dent in incarceration. We have heard more from punitive voices in national politics recently, but fortunately, at the same time, p ­ eople remain all the more dedicated to state and local efforts to undo excessive punishment. “Smart on crime” reforms, designed to reduce incarceration, save money, focus on serious offenders, release low-­level offenders, improve prevention, and assist in reentry, now attract

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broad bipartisan support. Across the country, p ­ eople are rejecting the old tough-­on-­crime approaches in their communities. Texas—­yes, Texas—­has not only a­ dopted a series of reforms to prevent wrongful convictions in response to exonerations, but it is also a model for how to reduce incarceration. A “Right on Crime” initiative of the Texas Public Policy Foundation brought together a co­ali­tion of supporters who implemented mea­sures to reduce incarceration 14 ­percent from 2005 to 2015. During that time, crime fell at twice that rate, to the lowest levels seen in the Lone Star State since 1968. Rather than spending half a billion dollars to build three new prisons, Texas improved probation, addiction treatment, and alternatives to prison, closing three prisons and saving billions of dollars.2 The near demise of the death penalty shows the way to escape self-­defeating cycles of excessive punishment. We need ­those lessons now more than ever. ­After the death penalty fades into insignificance or l­egal abolition, we must rethink how we treat the worst of the worst criminal offenders. We can study evidence, conduct statistical analyses, assess costs, and make smart decisions, rather than spending billions to lock p ­ eople up and throw away the key. In this book, I have described how justice is fallible, defense teams ­matter, and unchecked prosecutorial power can be arbitrary, biased, and immoral. In this chapter, I w ­ ill explain how we can use the lessons from death penalty cases to address each of t­hose three prob­lems. Second, I ­will turn to the regenerating force of mercy in criminal justice. For mercy to triumph, we cannot cast blame on law enforcement, judges, defense l­awyers, and prosecutors. We cannot undo mass incarceration just by focusing on low-­level and nonviolent offenders, although that is one starting place. We have to embrace mercy for the most serious offenses. We have to be willing to shorten prison terms and release convicts. In short, we have to focus on rehabilitation and mercy. We must

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rethink how we treat mentally ill, poor, innocent, and poorly represented defendants generally. We can all share the responsibility—­and the credit—­for moving past the most punitive era in American history.

Preventing Wrongful Convictions Supreme Court Justice Harry Blackmun put it well, years before DNA tests exonerated Henry McCollum: we cannot impose final punishments when “­human error is inevitable” and “our criminal justice system is less than perfect.”3 The death row exonerations that have occurred since have permanently changed the death penalty debate in the courts as well as the state­houses. More judges are expressing deep reservations about the death penalty due to the evidence from t­ hese wrongful convictions. Supreme Court Justice John Paul Stevens announced his opposition to the death penalty in 2008, citing evidence from DNA exonerations: “­Whether or not any innocent defendants have actually been executed, abundant evidence accumulated in recent years has resulted in the exoneration of an unacceptable number of defendants found guilty of capital offenses.”4 Federal district judge Jed Rakoff struck down the federal death penalty in 2002, stating, “We now know, in a way almost unthinkable even a de­cade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent ­people are convicted of capital crimes with some frequency.” His ruling, however, was l­ater reversed on appeal.5 Most recently, in 2015, Supreme Court Justice Stephen Breyer dissented in Glossip v. Gross, noting that it took twenty years ­after the Supreme Court denied relief to Henry McCollum for new DNA evidence to fi­nally prove his innocence.6 If even death row cases can go so terribly wrong, one won­ders about the millions of ­people who fill our teeming prisons. The

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DNA exonerations are just the tip of the iceberg, and we have no idea how many more p ­ eople have been wrongly convicted, including in less vis­i­ble cases that are plea-­bargained, or in misdemeanors, or in juvenile cases. The only way to avoid inevitable errors is to invest in getting criminal investigations right, and not just in death penalty cases, but in all cases relying on confessions, eyewitnesses, forensics, in­for­mants, and the rest. Our criminal justice system is less than perfect, and a­ fter the death penalty fades the same challenges ­will remain. We must take mea­sures to protect against wrongful convictions. What mea­sures are ­those? Confessions must be videotaped in their entirety. ­There should be a rec­ord of who said what. Judges should carefully review the reliability of all interrogation evidence. Police should not be allowed to use unduly coercive interrogation tactics. Experts should be allowed to explain the phenomenon of false confessions to jurors. And police should be trained to take special care when questioning juveniles or disabled or other vulnerable individuals. In­for­mant testimony, ­whether jail­house in­for­mants or other incentivized witnesses, should not normally be allowed, not without videotaped testimony and careful screening for reliability. Very ­little has been done anywhere in the country to prevent false convictions due to lying in­for­mants, although a few jurisdictions have begun to address this terrible prob­lem. Eyewitness evidence should be used only when eyewitnesses are tested using reliable and blind lineups, in which the officer does not know which person is the suspect. Judges should carefully review eyewitness evidence to assure its reliability. Judges should not allow dramatic, but potentially misleading, in-­court identifications. The National Acad­emy of Sciences in its 2014 report laid out detailed reforms and recommendations to safeguard eyewitness evidence in our courtrooms, but much work needs to be done to ensure that police and actually use the evidence properly.7

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Many police departments traditionally have had no written policies on how to do lineups. That is changing, but many police still use outdated procedures that can outright contaminate the memory of an eyewitness. Good evidence that can be used to convict guilty p ­ eople may be routinely lost, and flawed eyewitness identifications continue to be used to convict the innocent. Just like eyewitness memory should be documented and tested carefully in lineups, forensics must be carefully collected by trained crime-­scene analysts and analyzed by impartial, in­de­pen­dent scientists, using clear scientific standards. The National Acad­emy of Sciences laid out detailed reforms to improve the use of forensics in this country in an impor­tant 2009 report, but t­ hose recommendations have mostly not taken hold. B ­ ecause most criminal cases, even murders, do not have DNA to test, and ­because a surprising number of cases with DNA involve complex mixtures that raise real interpretive challenges, we still commonly depend on unreliable forensics. More research is being done to provide a more reliable scientific basis for fingerprint and ballistics and other types of forensic comparisons. Slowly, crime labs have started to audit old cases from the 1980s and 1990s. The scientific community has started to consider standards for explaining forensics accurately in the courtroom. Quality controls in crime labs must improve; labs across the country have been beset by scandals involving errors and even outright fabricated evidence in thousands of cases. Like so much in our criminal system, when police and crime labs mass-­process cases, quality suffers b ­ ecause quantity is overwhelming. Prosecutors and police should not be able to hide evidence of innocence, as they did in so many DNA-­exoneree cases. In many cases, it was only b ­ ecause of the special energies dedicated to death penalty cases that ­lawyers eventually uncovered evidence of innocence ­after years of trying. One won­ders how often the truth

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is concealed in more routine criminal cases or in plea-­bargained cases where t­ here is no opportunity to put the evidence to the test in court. Open-­file discovery should be required of police and prosecutors so that the defense can see all the evidence they have, including in plea-­bargained cases. Texas has led the way in reforming criminal discovery, and other jurisdictions are slowly adopting t­hese improvements, often in response to the stories about what death row exonerees endured. Perhaps t­ hese changes can be of some comfort to the innocent ­people who suffered for so many years on death row.

Team Defense The decline of the death penalty suggests new ways to eliminate the under­lying prob­lems in our criminal justice system. The capital defender teams that have proved so effective do not just try to win ­trials; they help to ensure that few cases go to a trial. They investigate from the moment they are assigned a case, heavi­ly relying on social workers and nonlawyer mitigation experts who know how to uncover a person’s life story. They get far more individualized and lenient pleas than court-­appointed ­lawyers would get. They point the way to how effective lawyering and social work can make a difference even within a system of plea bargaining. Who gets an effective defense? ­Today, in some states at least, p ­ eople facing the death penalty receive a trial team with ­lawyers and investigators. In white-­collar cases, wealthy defendants can hire dream teams, spending millions or tens of millions on their defense. They often win ­trials, and far more often they negotiate lenient outcomes. Some cutting-­edge public defenders, typically with the help of nonprofit organ­izations or private donations, provide investigators and team-­based repre­sen­ta­tion in regular criminal cases. Social workers increasingly join defense offices and in some “participatory

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defense” programs, where f­amily members, friends, and neighbors help collect evidence to tell the life story of their loved ones and help ensure they get individual treatment. Still, such high-­quality repre­sen­ta­tion remains rare. “Take a number” is what p ­ eople charged with crimes heard when they showed up at the New Orleans public defender’s office in early 2016. The office faced terrible funding shortages since its funding is almost entirely tied to income from traffic tickets and fines. It is “user funded,” meaning public defenders are perversely forced to depend on overcriminalization to represent their clients. The office had to create a months-­long waiting list for ­people to see a ­lawyer. Several other public-­defender districts in Louisiana also created waiting lists, and many are also facing steep cuts or outright collapse. The ACLU sued in just the latest in a series of lawsuits over endemic lack of funding for defense in Louisiana.8 We know from death penalty cases what happens when a ­lawyer is not promptly appointed in a case. Evidence can be lost, video erased, witnesses’ memories fade, and the ability to defend clients erodes. ­People may languish for months without the ability to afford bail and without ever seeing a ­lawyer; they may have to face plea negotiations on their own. If the state ­will not pay for a sound defense, then the state should not be permitted to hold individuals on bail or seek to convict them. ­There should be a constitutional right to counsel at bail hearings, and ­there is strong support for that position as a constitutional m ­ atter.9 Some states, for example New Jersey, u ­ nder a law that took effect in 2017, have radically reformed the bail system and reduced or all but eliminated cash bail. However, in some jurisdictions defendants face conviction in “no counsel courts,” where prosecutors seek out defendants who have not yet been appointed l­ awyers to encourage or downright pressure them into pleading guilty. With indigent defense in crisis across so much of the country, it is impossible for

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any other reforms designed to prevent mass incarceration, harsh sentences, insufficient alternatives to incarceration, or wrongful convictions to be truly fair and effective. Think about the team that works on a death penalty case, examining the accused murderer’s school rec­ords, ­mental health history, substance abuse prob­lems, childhood abuse, and the rest. Recall how Terry Williams’s trial l­awyers knew nothing about the horrific conditions in his home, with drunken parents, abuse, unsanitary conditions, and only brief and in­effec­tive interventions by child welfare authorities. For his entire childhood, the state failed him and his siblings. It is a sad statement that as a society, we so often invest in a careful assessment of a person’s tragic situation only once they have committed a terrible crime. ­Really top-­notch public defenders, like the Bronx Defenders, have pioneered a “holistic” model, using a team approach much like in death penalty cases. They do not just defend accused criminals but also help them with social ser­vices such as welfare and counseling. They try to help their clients get their lives on track, and they negotiate the complex collateral consequences of convictions that can make it so hard to work, obtain housing, and maintain a ­family. When we treat social prob­lems with prison time, it then becomes the responsibility of criminal l­awyers to provide social ser­vices. It is also a sad statement that neighborhood social ser­ vices have to be ­housed with criminal defenders rather than be unconnected from our criminal and prison system. If we expand social ser­vices, we can make mercy a larger part of society, not just an afterthought of the criminal system.

Rethinking Prosecution A smarter approach to criminal defense complements a smarter approach to prosecution. The personal preferences of individual

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prosecutors should not drive our most serious criminal punishments and taint the thoughtful work of the vast majority of our prosecutors. Prosecutors have acquired a near mono­poly on power in our criminal justice system. That must end. It is not fair to expect prosecutors to make decisions about drastic sentences largely alone and without sound information from police and the defense, a community perspective, and informed review by judges. Prosecutors are dedicated public servants. They should not have to play God. Even as the death penalty fades, its shadow continues to fall over cases that do not result in death sentences but in which individuals agree to life sentences to avoid the threat of an execution. ­Those life-­or-­death negotiations vividly illustrate the inhumane operation of the machinery of our entire system of plea bargaining. How can an agreement u ­ nder the threat of death be a “voluntary” deal, a contract freely entered between two parties? Critics of plea bargaining have long pointed out that it may save the cost of a trial, but it also encourages shoddy, coercive, machinelike ­handling of ­people’s cases.10 What is “voluntary” about plea bargaining? Still worse, plea bargaining has an innocence prob­lem. The Supreme Court has made the assumption that “[d]efendants advised by competent counsel and protected by other procedural safeguards are . . . ​unlikely to be driven to false self-­condemnation.”11 We now know that is not true. I have described how dozens of innocent ­people exonerated by DNA tests pleaded guilty b ­ ecause their ­lawyers prob­ably correctly told them that they would be sentenced to death if they faced a trial. We have no idea how often that occurs. Still, for de­cades, the Supreme Court has said that the fact that a defendant might plead guilty to avoid the death penalty does not make a plea involuntary. Our entire criminal justice system now is a system of plea bargaining. The real­ity of this has begun to set in.

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Just as most death penalty cases are now negotiated for lesser sentences, the vast majority of criminal cases are negotiated. ­Trials are scarce. In my home state of ­Virginia, only 1 ­percent of felony cases go to a trial. Some court­houses have not seen a felony trial in years. More recently, the Supreme Court has emphasized that plea bargaining is a cost saver that we have to live with since it can “conserve valuable prosecutorial resources.”12 We do not have to live with a concept of efficiency that has such a terrible cost in h ­ uman lives. We need to open the black box of prosecutorial discretion, study how to better prioritize which cases deserve more consideration, and give prosecutors more information to do justice. We must help prosecutors turn from assembly-­line pro­cessing of convictions t­ oward shorter sentences and rehabilitation.

Rehabilitation Pope Francis told the representatives in the U.S. Congress in his 2015 address that the death penalty should be abolished ­because “all t­hose who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of a rehabilitation.”13 Rehabilitation is incompatible with the death penalty but also with life without parole and a wide range of overly harsh punishments. The abolitionists who touted LWOP as a sound alternative to the death penalty should have been careful what they wished for. Now we have about 50,000 ­people serving LWOP, over 100,000 more serving life sentences, and many more serving “virtual” life ­because they ­will never receive parole before their death. LWOP shares the same prob­lem as the death penalty: it does not permit any possibility of rehabilitation. We could adopt modified LWOP, like in the Eu­ro­pean Union, where the law requires periodic review and possibility of early release. This is

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particularly sensible for older inmates who pose very l­ittle chance of recidivism; why insist that they die in prison? We must think about reentry as part of rehabilitation, ­because most prisoners eventually get released. Over 600,000 prisoners are released from our prisons ­every year, over 11 million go into and out of local jails, and about one in e­ very three adults has an arrest rec­ord. We are an incarceration nation. ­Unless we focus on helping ­those leaving jail and prison, we w ­ ill all suffer. P ­ eople have fi­nally started having a real national conversation about reentry and rehabilitation. The Department of Justice has emphasized its goal to focus on reentry efforts “to deter crime and reduce recidivism.” Federal prosecutors are organ­ izing community meetings and job fairs to help former prisoners.14 Substantial federal grants are now being given to states to encourage reentry programs ­under the Second Chance Act of 2007.15 ­After release, federal prisoners are no longer called “felons” or “offenders,” but instead a “person who was incarcerated.” The new chief of the Florida prisons announced a “new focus” on rehabilitation. The governor of Georgia said, “­We’re ­going to try to do better within the prison system of giving them a chance . . . ​of being able to acquire skills that are marketable and then of course be able to transition back to become productive members of our society.” The director of the federal prisons said in 2015 that “re-­entry begins on the first day of incarceration,” and that more can be done to help maintain ties between offenders and their c­ hildren.16 Federal judge John Gleeson did something creative: he issued a “certificate of rehabilitation” to a w ­ oman who, a­fter serving eleven months for a fraud conviction, “has found work at a few nursing companies, and she currently runs her own business as a ­house cleaner.” Expunging the conviction was not pos­si­ble ­under outdated standards that permit ­doing so only for an “unusual or extreme case,” and regardless it would not have helped since a

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criminal rec­ord would still appear on her nursing license and on countless criminal rec­ords databases. The judge said most employers “do not have the time or resources to gain a comprehensive understanding” of who she is, so “I have done that for them,” and concluded that she “is rehabilitated.” “As her sentencing judge, I owe it not only to [her], but to her f­ amily and community, to do my part to lift any remaining hardship on her.”17 Rehabilitation has become a new watchword, with reentry ­after prison and alternatives to prison spreading far and wide. The first prisons built in the United States w ­ ere “penitentiaries” where prisoners would learn to “repent their sins”; ­later, prisons ­were termed “reformatories” in order to improve inmates and make them good citizens. But rehabilitation has been neglected for de­cades. Prison education programs, libraries, and programs to help offenders re­adjust to society ­were slashed. The federal sentencing statutes did not say anything about rehabilitation; the Supreme Court fi­nally stepped in to say in 2007 that “self-­motivated rehabilitation” is relevant.18 At the federal level, in 2013, the U.S. Attorney General ordered prosecutors to think twice before seeking mandatory minimums.19 Still, the basic model leaves decisions to the prosecutors’ offices. Although the largest corporate criminals get the benefit of leniency and out-­of-­court deals, rehabilitation and deals to avoid a criminal rec­ord are not typically given to individuals. ­Today, the most cutting edge “smart on crime” change is occurring at the state and local level. Many state lawmakers and sentencing commissions are rethinking costs of incarceration and are examining ­whether they can better predict who are the recidivists and who do not pose risks and can be released early. They are trying to make punishment “evidence based.”20 States are considering d ­ oing away with punitive fines and costs imposed on convicts who cannot pay. Reentry is becoming a new focus for research

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and policy, to “ban the box,” eliminate barriers to employment, and help offenders find jobs and become productive members of society. Restoring voting rights to felons is another way to make former offenders equal citizens. If offenders can be outright rehabilitated, the entire system can be re­oriented away from incarceration, with billions in savings and untold relief of h ­ uman suffering. Countless inmates suffer from ­mental illness, from depression to bipolar disorder to schizo­phre­nia. Jail and prison officials may place mentally ill prisoners in solitary confinement, which may only make the condition far more severe. Mentally ill or disabled inmates may suffer from excessive force at the hands of jail or prison guards, even resulting in deaths. Still o ­ thers face neglect and disregard of their medical needs. Many states have closed their state-­run ­mental institutions, and jails and prisons have taken their place, but without adequate ability to diagnose or treat ­mental conditions. Most criminal defendants do not receive the same m ­ ental health screenings that are now routine in well-­handled death penalty cases. Police and other criminal justice professionals must be better trained and given resources to screen ­people with ­mental health prob­lems for treatment, not jail. Death penalty cases make vivid the broad prob­lem: for too long we have criminalized ­mental illness rather than treating it.

Release California may still produce the most death sentences in the country, but it also shows the path away from mass incarceration: releasing more prisoners. For de­cades, California symbolized the excesses of tough-­on-­crime punishment, building a raft of new prisons and adopting three-­strikes-­type laws. In a landmark 2011 Supreme Court ruling, the justices found that California’s prisons

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­ ere so overcrowded as to constitute “cruel and unusual punishw ment” ­under the Eighth Amendment. Supreme Court Justice Anthony Kennedy highlighted how seriously mentally ill prisoners “languished for months, or even years, without access to necessary care.” The prisons would “hire any doctor who had a license, a pulse and a pair of shoes,” serious medical conditions w ­ ere ­going untreated, and facilities lacked “necessary medical equipment” and did “not meet basic sanitation standards.” The prisons w ­ ere as much as 300 ­percent overcrowded, with “toxic” living conditions. Relying in part on rulings in death penalty cases, Justice Kennedy affirmed that prisoners have “­human dignity” and ordered that the California prisons reduce overcrowding so that prisons reached no more than 137.5 ­percent of their capacity.21 In the years since, the California prison population has dropped by nearly 50,000 inmates from over 162,000 in 2006 to about 113,000. This is the biggest decrease in imprisonment in the country, according to federal data.22 Mass decarceration resulted in no effect on crime rates in the years that followed, according to two studies of the California prisoner releases.23 Realignment, as the new law passed in response to the Supreme Court’s ruling calls it, shifted responsibility for holding prisoners from the state to the counties. California counties now have to pay if they want to hold more ­people, and if their local jails are overcrowded they have to release more p ­ eople before and ­after trial. Jails and prisons had to prioritize who could be released, but ­there w ­ ere only so many low-­level and nonviolent prisoners who could be released. Meanwhile, in 2014, the state enacted legislation making drug possession a misdemeanor and not a felony. In a large-­scale exercise in mercy, California governor Jerry Brown granted parole to thousands serving life sentences, including inmates who w ­ ere convicted of violent crimes before they w ­ ere twenty-­three years old, and including for violent

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crimes like murder. The Los Angeles Times found that less than 2 ­percent of the paroled lifers have committed crimes since their release; by comparison more than half of all prisoners released in California are convicted of new crimes within three years. In general, California, along with New York and New Jersey, which led the nation in prison population reductions, have reduced prison populations by 20  ­percent or more—­and they have seen crime continue to fall. In fact, violent crime rates fell in t­ hose states at a greater rate than the national average.24 A long list of states are now adopting similar reforms, including Alaska, Georgia, Ohio, Oklahoma, Kentucky, Mary­land, Mississippi, Texas, and many more. One of t­hose released in California, Ryan Lo, had served twenty-­three years for a murder committed for hire when he was seventeen years old. Since his release, having earned multiple degrees in prison, he has worked in a job that a nonprofit, the Anti-­ Recidivism Co­ali­tion, helped him find. He did not expect to ever be released, much less start a new life. He recalled, “When I went to prison, they took guys like me and put them in the meat grinder.” The prison officials would say, “­You’re not allowed to go to school. You are a lifer; you are d ­ ying h ­ ere.”25 Mass incarceration is not needed to prevent crime, and mass releases may actually help to reduce crime and rehabilitate prisoners. While many might not initially consider murderers the ­people for whom we should begin thinking about mercy, death row inmates raise the prob­lem of rehabilitation in a stark way. Just as most death row inmates have ­mental health prob­lems, the majority of our inmates have m ­ ental health prob­lems. Locking up ­people grappling with m ­ ental illness, disability, and substance abuse may sweep them off our streets, but it is an inhumane and short-­sighted way to deal with public health prob­lems. We need to provide treatment and housing without bars and cells for t­ hose

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struggling with illness and addiction. We need to stop warehousing inmates and instead provide better education and social ser­vices both inside and outside jails and prisons. We need to help with reentry when inmates are released. But just as impor­tant w ­ ill be investing in social ser­vices, education, and m ­ ental health and addiction-­prevention programs to keep communities intact in the first instance—­and then again when inmates are released. ­After all, if we wind down mass incarceration in this country, many hundreds of thousands of ­people must be released. What happens then? Without any meaningful rehabilitation in prisons, without education programs and skills programs, with vio­lence and isolation and poor medical care in prison, ­simple release is a ­recipe for crime. We need to help former inmates keep and rebuild connections to the community. ­Unless we fix jail and prison conditions and focus on release and reentry, which fortunately we are starting to do, we w ­ ill fail to stop the cycle of mass incarceration.

Getting Smart on Mass Incarceration The American system of mass incarceration costs upward of $182 billion a year, according to an estimate that took into account not just the costs of r­ unning prisons (over $80 billion) but also court costs and policing costs.26 The hardships on t­ hose imprisoned for lengthy sentences continue long a­ fter incarceration, since former convicts may face a broad range of collateral consequences barring them from voting, jury ser­vice, welfare and government benefits, and eligibility for jobs. ­Those harms fall on f­ amily members and entire communities. Imprisonment has changed the social fabric of our country.27 The new smart-­on-­crime movement seeks to unwind mass incarceration so that we can all benefit from huge savings—­for our criminal justice system and for our entire country. Much remains to be done.

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Calling our system one of mass incarceration is itself something new; the scale of imprisonment has grown so large in the United States that the term is now a commonplace.28 Politicians increasingly call for an end to the “era of mass incarceration.” ­These concerns are bipartisan. We need “criminal justice reform,” said President Barack Obama in his 2015 State of the Union address. Senator Rand Paul calls for criminal justice reform “in the hopes of tearing down the wall between the two Amer­i­cas.”29 The ­lawyer for Koch Industries, run by Charles and David Koch, who have increasingly donated funds to criminal justice reform c­ auses, says such reform “is good for all of us—­the rich, the poor, and every­one ­else.”30 That is why ­people are getting smart on crime. The time seems ripe, despite some anxiety about increases in crime in a few cities. P ­ eople on all sides of the po­liti­cal spectrum increasingly agree that serious solutions are needed. We have a prison population of greater than two million; it is only slowly declining and is still vastly larger than the 300,000 or so p ­ eople in state and federal prisons in the late 1970s. In addition, jails “churn” large numbers of p ­ eople awaiting trial or serving short misdemeanor sentences. We jail as many as 12 million p ­ eople a year.31 Many in jail are t­ here simply b ­ ecause they cannot afford bail. Recent smart-­on-­crime efforts in a range of states to abolish or reform the cash bail system ­will hopefully reduce the reliance on both bail and jail.32 Prison populations are defined by how many ­people are put in prison and for how long. Criminologists Todd Clear and James Austin call this the “iron law of prison populations.” Ten p ­ eople can serve one-­year sentences in the time that one person ser­vices a ten-­year prison term. Thus, one way to combat mass incarceration is to reduce lengthy sentences. Reducing the length of sentences does not require complicated new programs. Sentences have to be reduced not just at the front end but also at the back end, where punitive parole policies too easily return p ­ eople to

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prison for minor infractions.33 That ­simple solution—­cutting lengthy sentences short—­has real appeal. ­People convicted of violent crimes have lower rates of recidivism than ­people who commit drug crimes or property crimes. Moreover, p ­ eople “age out” of criminal be­hav­ior. As Clear and Austin argue, “[T]­here is no reentry program more power­ful than having a 35th birthday.”34 Far more “violent” convicts may be adequately condemned with less punitive sentences. We also need to reduce the number of p ­ eople g­ oing to prison. Eliminating mandatory sentences gives local prosecutors and judges more ability to do justice. Many common-­sense proposals to reduce incarceration focus on programs like alternatives to prison for nonviolent offenders; many hundreds of thousands of nonviolent prisoners could be released or sentenced to alternatives to prison, with few risks posed to the public.35 Still, the majority of t­hose in prison w ­ ere convicted of violent crimes. In federal prison, this is less true; t­ here are many individuals in federal prison for nonviolent drug and immigration offenses. The California success in prison reduction points ­toward a new approach, and although it is just one (very large) state, over thirty states have been getting smart on crime and reducing imprisonment while reinvesting in rehabilitation and treatment. ­These are states around the country that have faced bud­get shortfalls and taken a hard look at the exploding costs of mass incarceration. They include Alaska, Georgia, Mary­land, Mississippi, and Oklahoma. In Oklahoma, voters enshrined the death penalty in the state constitution in 2016 but at the same time approved smart-­on-­crime mea­sures to reclassify as misdemeanors certain felonies and to invest cost savings in addiction and m ­ ental health treatment. We need to strike crimes off the books that punish nonviolent be­hav­ior or that overly punish low-­level crimes. We need to reduce the length of sentences, release more ­people early, and use parole more. Red

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states and blue states, states from the Deep South to the Northeast to the Midwest, are embracing changes that would have seemed radical two de­cades ago. Although the reductions in prison populations of 15 to 20 ­percent or more in some states over the past de­cade may sound like a lot, it is just a dent in the prob­lem, given the vast run-up in incarceration in the de­cades prior. Far more must be done. We can adopt rules that provide for smarter and more flexible sentencing, such as “safety valves” for judges to disregard mandatory minimum sentencing. The efforts of prosecutors and defense ­lawyers in death penalty cases shows how one can carefully assess an individual before making grave decisions about punishment. We need to have more serious sentencing hearings, even if someone pleads guilty, so that the pro­cess occurs carefully and in the open. The ­lawyers should develop and the judge should consider the full facts of the offense and the person’s full background and history, as federal judge Jed Rakoff and ­others have recommended.36 To do more, we ­will need effective ­lawyers and investigators to pres­ent their clients’ full stories. Other­wise, efforts to end mass incarceration might disproportionately help the rich, and perhaps also ­those facing the death penalty, who obtain teams of good l­awyers. We should shift the costs of confinement to the local and county level. Prosecutors and local law enforcement get a “­free lunch,” as professors Frank Zimring and Gordon Hawkins put it, when they mass pro­cess convictions without bearing the costs of prisons paid for by the state.37 Plea bargaining is cheap. It is even cheaper when defendants lack real l­awyers. Death penalty cases graphically illustrate what happens when local prosecutors secure death sentences on the cheap, only to have every­one pay ­later when judges reverse flawed sentences a­ fter multimillion-­dollar appeals. If local voters want punitive mea­sures, then they should have to pay for them. When they are made to pay for them—as they now must do

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following California’s realignment, and in death penalty cases in which the defense gets an adequate team—­then support for the death penalty or for overincarceration vanishes. Public defenders have been in crisis in this country for de­cades. While the exact percentage is unknown, the Department of Justice estimates that as many as 90 ­percent of ­those charged with crimes cannot afford ­lawyers.38 Public defender offices themselves cannot afford to ­handle the millions of cases they must take on each year, and far more counties are relying on contracting ­systems, paying cut rates to whichever ­lawyers ­will take the bid to ­handle cases of poor defendants. Prosecutors are also overwhelmed by the sheer quantities of cases they h ­ andle, and although they have evidence from the police about the crime, they have ­little way of knowing about the background of the individual person they are prosecuting, apart from criminal rec­ords and perhaps a presentencing report from a probative officer that briefly interviewed the defendant. On the defense and prosecution side, ­lawyers mass produce guilty pleas on the cheap. The funds to finance community l­awyers and investigators and social ser­vices for the poor can come from the billions saved by winding down mass incarceration. Over thirty states are participating in justice-­reinvestment initiatives, with federal support.39 Even Harris County, Texas, long the leader in death sentences and executions, has secured support from the MacArthur Foundation to reduce its county jail population and to use alternatives to incarceration.40 As Illinois governor Bruce Rauner put it, we can spend now to save far more money ­later: “We’ve always taken the short-­run decision, what cuts costs now and not what saves significant resources over a longer term. We’ve got to change that mindset.” Still more impor­tant, “we can help ­those who made ­mistakes lead productive lives and come back as productive, full citizens who are enhancing the quality of life for every­one in all

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of our communities.”41 Unwinding mass incarceration can open up the resources to empty our prisons and reduce crime.

­H uman Rights “The death penalty has no place in the 21st ­century,” said Ban Ki-­moon, then the Secretary General of the United Nations. The triumph of mercy is a global phenomenon. A majority of the countries in the world have now abolished the death penalty, and even more do not use it in practice.42 More than four out of five countries have abolished or stopped using the death penalty. China, Iran, Iraq, Saudi Arabia, and the United States are at the top of the list of states that execute the most p ­ eople each year. Indeed, the only countries that have seen executions increase in recent years are Iran, Pakistan, and Saudi Arabia. Saudi Arabia typically beheads individuals and displays bodies in public as a warning. China, Saudi Arabia, and Pakistan sentence p ­ eople to death for drug crimes, financial crimes, and lesser “crimes” including adultery and blasphemy. For de­cades, challenges to the death penalty have forced Americans to think carefully about the connections between our own criminal justice practices and ­those around the world. Ever since Trop v. Dulles, in 1958, when the Supreme Court announced that cruel and unusual punishment should be governed by “evolving standards of decency that mark the pro­gress of a maturing society,” the justices have occasionally looked to punishment practices in other countries. We should not be b ­ ehind the “civilized nations of the world” but rather should be a model for all nations. In 1977, the justices ruled out the death penalty for rape, noting international consensus among major nations.43 In 2002, in Atkins v. ­Virginia, the justices noted that “within the world community,” the execution of intellectually disabled offenders is “over-

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whelming disapproved.”44 In 2004, in Roper v. Simpson, the justices described as “instructive” the “overwhelming weight of international opinion against the juvenile death penalty.” The United States “now stands alone in a world that has turned its face against the juvenile death penalty.”45 Even Supreme Court Justice Sandra Day O’Connor, who disagreed with the result in that case, agreed that it was appropriate to rely on international practices, since our “evolving understanding of ­human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries.”46 ­Others strongly disagree. Justice Antonin Scalia maintained that international ­human rights and practices are not relevant, and we need not try to “conform” American law to the “views of foreigners.”47 A new moral awakening has made killing the death penalty feasible for the first time in de­cades, and the same forces are working their way around the world. Just as the death penalty is in decline and concentrated within the United States, fewer countries across the world have the death penalty or use it in practice. The trend, sometimes despite popu­lar opinion, is unmistakable. The countries that are doubling down on executions are largely authoritarian regimes. We should not remain in their com­pany. What would it mean to rethink punishment as part of an international community, with common values and concern for fundamental h ­ uman rights? Since the death penalty is seen as so out of touch with fundamental ­human rights, rejecting the death penalty definitively in Amer­i­ca would mean we would no longer “stand alone,” or stand with the likes of Iraq and Saudi Arabia in our punishment practices. Joining the broad set of nations that have abolished the death penalty could help us be part of that worldwide conversation rather than standing to the side as an outlier. ­After the fall of the death penalty, the United States can reclaim its role as the standard-­bearer for fair criminal justice.

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A New Beginning Consider the arguments in the high-­profile case of Susan Smith. Smith was tried in South Carolina for the murder of her two ­children, which she confessed to, but only a­ fter first falsely telling police that a black man had kidnapped them. Legendary death penalty l­awyer David Bruck, who described to the jury Smith’s depression a­ fter being an incest victim, presented in his closing argument a classic invocation of the power of mercy. Bruck walked to the judge’s bench, where a copy of the Bible had been sitting during the trial: This Bible has sat on that desk for the ­whole trial. And each one of you put your hand on it before voir dire. . . . ​You may not have realized this before, but ­there is a death penalty sentencing proceeding in the Gospel. . . . ​I think you prob­ably all know it by heart.

Bruck then described, “John’s rec­ord of that trial,” a death penalty trial, on the Mount of Olives. Jesus came into the t­ emple, and the scribes and Pharisees “brought unto him a ­woman taken in adultery.” They asked Jesus, “Now, Moses in the law commanded us that such should be stoned, but what sayest thou?” Bruck explained the quandary that Jesus faced: And then John drops out of the verbatim transcript and explains what was ­going on. . . . ​[T]he criminal law of the City of Jerusalem at that time was the Old Testament. . . . ​And it was written in the Bible that the penalty for adultery was death by stoning. And if anybody said other­wise, they w ­ ere committing the crime of heresy, a blasphemy. And that was a capital crime.

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So, as Bruck explained, this was not just a death-­sentencing proceeding, but Jesus himself was being put on the spot: And the p ­ eople that had asked him that question wanted him—­ they thought they had him pegged. You see, they thought that Jesus was—­I guess nowadays we would call it a bleeding heart liberal—­somebody who d ­ oesn’t have any concern for the rights of society but only cares about the poor criminal. They thought they knew . . . ​that he would say something like, well, I know it says that in the Bible, but that’s r­ eally a kind of a steep punishment for adultery. . . . ​ Why ­don’t you just, you know, do something ­else, or give her another chance.

If Jesus had said that, that would have been blasphemy, and he could have been sentenced to death. “But that’s not what he said at all.” Instead, as Bruck described it, Jesus appealed to mercy and a higher judgment, without defying the law or disagreeing that the state can hold criminals accountable: Instead of contradicting what [the] law required, he said this. The first t­hing he said a­ fter they put this trick question to him—­the first ­thing he did, he stooped down and with his fin­ger wrote on the ground as though he heard them not. So they pressed on.

Now Jesus uttered the famous line about blame: So when they continued asking him, he lifted up himself and said unto them, “[H]e that is without sin among you, let him cast the first stone at her.” . . . ​And they which heard it, being convicted by their own conscience, went out one by one,

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beginning at the eldest, even unto the last, and Jesus was left alone and the ­woman standing in the midst.48

­ hose jurors unanimously chose mercy for Smith, in 1995, T when it was far less common for jurors to choose life over death. ­Today, jurors, as well as prosecutors and victims, increasingly choose life over death. “The only honest justification for the death penalty is vengeance, but the Lord says, ‘Vengeance is mine,’ ” New York County district attorney Robert Morgenthau famously said. “It is wrong for secular governments to try to usurp that role.”49 What would it mean to choose mercy more broadly, and not just in death penalty cases, where we are confronted with the worst of the worst murderers? The waning of the death penalty provides a special opportunity to rethink the morality and the accuracy of the entire criminal justice system. Now is the time to seize on it. A criminal justice reform roadmap emerges from the fall of the death penalty. The same flaws in lawyering and evidence that afflict death penalty cases also afflict the vast bulk of criminal cases in which the death penalty is never sought. The same tools that are bringing about the death penalty’s demise are much needed across our country. ­There are also special dangers that the end game poses. Pushing punishment down to life without parole, or using other blunt mandatory punishments, may make the system less harsh, but d ­ oing so cannot avoid the inherent challenge of making punishments fit crimes. Instead, we need to better understand the ­people who commit crimes as individuals and ­humans. If you told someone in the 1990s that the death penalty would largely dis­appear from American life in twenty years, the person would have called you delusional. When the Supreme Court abolished the death penalty in 1972, as criminal justice professor Evan

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Mandery put it, it seemed as improbable as when men landed on the moon in 1969.50 An end to the death penalty seemed even more unlikely at the height of death sentencing in the 1990s, when mass incarceration and fear of crime drove tough-­on-­crime policies across the country. Now we have almost reached the moon together. We have learned a sobering lesson about how to break a cycle of excess punishment. Criminal justice is not something out of our control, dependent on the whims of judges, or purely a m ­ atter of public opinion or politics. The demise of the death penalty is no accident but rather the result of hard work and difficult decisions made by countless p ­ eople. As a society, we became more merciful. We have learned how to better consider each other as individuals—­even the drug addicts, even the petty criminals, and even the murderers. If we provide the tools, the death penalty w ­ ill end. ­Those same tools that have all but driven the death penalty into the ground should be harnessed to more broadly restore criminal justice in this country. We should provide statewide resources for defense ­lawyers to rely on the kinds of teams used in some death penalty cases. A social worker should screen a person facing criminal charges for ­mental illness. An investigator should carefully review the facts of a case and a person’s social history. E ­ very police department should carefully document and videotape evidence to prevent m ­ istakes. ­Every person should have a chance to benefit from rehabilitation before we subject them to punishment. E ­ very sentence should take into account the full life story of the person being convicted of a crime. The amazing story of the American death penalty decline can teach us how to rebuild our criminal justice system—­and how to avoid making the same ­mistakes that turned the ultimate punishment into a national disgrace. During a short span of a few

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de­cades, we created our largest death rows and reached rec­ord mass incarceration. In an equally short time period, though, the death penalty faded back into the shadows. Now we can end the death penalty. With the death penalty at the end of its rope, we can revive criminal justice in Amer­ic­ a. It is time for a new beginning.

Appendix Notes Acknowl­e dgments Index

APPENDIX

I began this proj­ect wondering why the death penalty was declining so rapidly in the United States and what we could learn from this remarkable trend. I quickly discovered that key data one would need to answer t­hose questions w ­ ere missing. I wanted to better understand death sentencing at the national, state, and local levels. ­There was no list of who has been sentenced to death and in which counties over the past few de­cades. The Bureau of Justice Statistics at the Department of Justice collects aggregate numbers of p ­ eople sentenced to death in each state and in each year, which is invaluable, but t­hose data do not identify par­tic­u­lar ­people sentenced to death or county-­level information. The NAACP ­Legal Defense and Education Fund publishes several times a year detailed reports of who is on death row, based on lists drawn from state corrections departments. ­Those reports do not include county-­level information or the dates of the death sentences themselves. Since ­there ­were not adequate data that would allow one to study county-­level patterns during the crucial time period during which death sentencing began its decline, I collected the data with the help of a remarkable team of students. Rob Smith, who encouraged me to take on this proj­ect, had collected data from 2004 to 2014, which he kindly shared with me. James Liebman, Jeff Fagan, Valerie West, and colleagues, who coauthored the Broken System

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studies of death sentencing from 1973 through the early 1990s, made their data publicly available. I list in the acknowledgements a long roster of l­awyers, capital offices, and scholars who generously shared data concerning death sentences in par­tic­u­lar states. Their contributions w ­ ere invaluable to ensure that t­hese data ­were as complete and as accurate as pos­si­ble. I began this work by starting small. Before collecting data from thousands of death penalty cases, I studied in depth the entire transcripts of dozens of capital ­trials in several states. I assembled a collection of ­Virginia death penalty t­ rials—­every single one since 2005—­and a large collection from the 1990s, before the death penalty decline began. In this case study, I observed how death sentences dramatically declined in ­Virginia once defense offices for capital ­trials ­were created in 2004. Once ­those ­lawyers began their work, the defense won more than they lost at trial, and the sentencing phase doubled in length and in complexity. In Chapter 2, I describe how I studied trial materials for e­ very DNA exoneration case involving a death sentence—­twenty ­trials in all. I also read capital t­ rials from North Carolina, Texas, and other states. I watched ­trials that ­were televised, for example the Aurora trial in Colorado, as well as ­trials in North Carolina, described in Chapter 3. Chapters 4 and 5 in this book describe how statistical analy­sis found a strong effect of adopting statewide capital defender offices, an inconsistent effect of murder states, and a weak effect of other changes like adoption of life without parole or switching from judge to jury sentencing. Law student Ankur Desai took the lead on statistical analy­sis regarding that question, and he has written a wonderful paper describing the results. One of the questions he examined was ­whether ­there is a defense-­lawyering effect on state-­level death sentencing. ­Table A.1 shows the main results of his modeling.1

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­Table A.1 Comparison of Variable Coefficients, as Associated with Reduced Death Sentencing

Ordinary Least Squares (Linear) Regression

Panel Model Controlling for Fixed Effects within States

“Mixed Effects” Model Controlling for Both Fixed and Random Effects

Poisson Regression Model 4.358**

Hom­i­cide

0.967**

0.471**

0.589**

No state-­level capital

0.065**

0.085**

0.084**

1.129**

defense provided

(0.007)

(0.010)

(0.010)

(0.251)

Life without parole

0.020**

0.024**

0.023**

0.091

sentencing u ­ navailable

(0.006)

(0.006)

(0.006)

(0.177)

Judge authority in final

0.049**

0.005

0.010

0.388*

sentencing phase

(0.007)

(0.013)

(0.012)

(0.198)

Source: Ankur Desai, “The Machine Stops: How Professional Capital Defenders Are Ending Use of the Death Penalty in Amer­i­ca” (draft on file with author). Note: Standard errors in parentheses. *Indicates significance at 0.1 level. **Indicates significance at 0.001 level.

Although murder rates w ­ ere a significant f­actor in the state-­level decline in death sentencing, their role varied widely from state to state.2 For example, Texas experienced a sharp drop in capital sentencing as the number of murders fell. But murders fell even faster in California, where death sentencing remained fairly high. Four conclusions ­were consistent over a range of statistical models. First, the provision of state-­level capital defense offices is strongly and robustly correlated with reduction in sentencing: this is the defense-­ lawyering effect discussed in Chapter 5. Second, murder rates ­were significantly but unreliably correlated with reduction in sentencing. Third, the enactment of life-­without-­parole statutes was weakly (but robustly) associated with reduced death sentencing. Fi­nally, compliance with Ring v. Arizona, the Supreme Court decision that required a jury decision at sentencing in a death penalty case, showed erratic coefficients, suggesting the impact was not statistically sound (and further analy­sis cast substantial doubt on any relationship, finding that a few states accounted for any apparent effects).

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Chapter 6 turns to county-­level analy­sis of death sentencing. I was fortunate to work with Alexander Jakubow on statistical analy­sis of ­these data. If you are interested in reading more detailed explanations of the findings, t­hese data and the statistical models are described in a law review article.3 A large team of law and undergraduate students at the University of ­Virginia helped to hand collect data on death sentencing. All the under­lying county-­level data on death sentencing, from 1991–2016, have been made available online for anyone interested in examining ­those patterns.4 We also tracked resentences or new sentencing ­trials when a person was again sentenced to death.5 Ideally, one would also have data not just on all murders, but also on how many of t­hose murders ­were eligible for the death penalty. Then one would know how many death-­eligible murders eventually receive death sentences. ­Those data are very hard to come by, although impressive state-­level studies have examined which murders in a state could have been eligible for the death penalty. Most cases s­ ettle through guilty pleas and without a trial, so t­ here may not be good publicly available information about the facts of the crime that can tell one w ­ hether it was a murder that was potentially death eligible. Another obstacle is that in many states the criteria for what counts as death eligible are themselves unclear. Some states make ­future dangerousness a criterion for eligibility, or ­whether the murder was “heinous, atrocious, or cruel.” As a result, despite the real limitations of ­doing so, we focused only on murder rates and death sentences imposed. We modeled death sentences as a function of four primary in­de­pen­dent variables: (1) hom­i­cide rates, (2) race, (3) population density, and (4) income. First, we examined hom­i­cide rates from 1990 to 2014. The two most commonly used sources for hom­ic­ ide data—­the Centers for Disease Control and Prevention (CDC) mortality data from the

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267

National Vital Statistics System,6 and the FBI Supplemental Hom­ i­cide Reports (SHR)—­pose vari­ous tradeoffs. Mortality data in the CDC are derived primarily from hospital rec­ords, while the FBI data use reports and other data filed with local police precincts. The CDC data are more inclusive; t­here are deaths never reported to local law enforcement but recorded by health care authorities as required by state laws in order to produce a death certificate.7 Some worry that the CDC data are overinclusive, since in the context of death sentencing, hom­i­cides documented by police may be more likely to result in arrests, prosecutions, and then pos­si­ble death sentences.8 We ­were also unable to obtain CDC data with detailed county-­level information for any years before 1990. While both data sources provide basic demographic information about the victims, the FBI provides information about the offenders and murder-­clearance rates.9 We focused on the FBI data, but for robustness we used estimates from both data sources. In addition, since it can take more than a year for a murder to result in a trial and a sentence, we examined the lagged effect of hom­i­cides on death sentences. Second, we examined the effect of a county’s racial composition on sentencing be­hav­ior. Data on the proportion of a county’s population that is black or African American ­were obtained from the U.S. Census Bureau. A racial fragmentation mea­sure was also used to estimate racial demography within each county. This alternative mea­sure reports the probability that two randomly selected individuals belong to dif­fer­ent racial groups. We found that the racial fragmentation variable displayed similar results as the share of black population. For that reason, and for space reasons, we did not include both mea­sures in the same model. Third, we examined population density of each county in a death-­sentencing state, mea­sured as the number of persons per square mile. It is common in the lit­er­at­ure to use a mea­sure of

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density or urbanization. Densely populated areas tend to have dif­ fer­ent patterns of social interaction, po­liti­cal values, and ­labor markets than rural areas. Population density is also a good proxy for total population.10 Fourth, we analyzed income per capita in each county. It is expensive to seek the death penalty, so this variable might capture ­whether local criminal justice systems can afford to seek the death penalty. Income per capita also works as a crude “catchall” for other impor­tant sociodemographic data—­such as po­liti­cal attitudes (wealthier individuals tend to vote more conservatively) and education levels (wealthier individuals tend to have more years of formal education)—­that could exert influence over the other variables. We would ideally study variables for education, partisanship, and other f­actors that could be correlated with income and death penalty sentencing, but data availability prevented us ­doing so. Death sentencing is an extremely rare event. Over 90 ­percent of counties in each year in the time period from 1990 to 2016 had no death sentences. For the statistical analy­sis, we used a mixed-­effects negative binomial regression model, which is frequently used to model overdispersed, nonnegative count outcomes like t­hese data on death sentences.11 ­Table A.2 pres­ents negative binomial regression results using hom­ic­ ide data respectively calculated from the FBI Supplemental Hom­ic­ ide Reports and the CDC. The number of death sentences in each county-­year is modeled as a function of the hom­i­cide rate, percentage of the population that is black, population density, and income per capita. The models also included random effects for each county and fixed-­effect dummies for state and year. State-­specific time dummies (e.g., ­Virginia 1990) ­were used in the last two models reported in the ­table. The coefficients in ­these ­tables are presented in the form of f­ actor changes. Coefficients with values less than one indicate an expected decrease in the number of death sentences, while coefficients with values

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269

Table A.2 Hom­i­cide Data and Negative Binomial Regressions State & Year Fixed Effects FBI Data

State-­Year Fixed Effects

CDC Data

FBI Data

CDC Data

1.098***

1.086*

1.107***

1.083*

(0.024)

(0.028)

(0.028)

(0.027)

1.388**

1.377**

1.361**

1.343**

(0.157)

(0.154)

(0.167)

(0.163)

4.480***

4.608***

7.984***

8.704***

(1.434)

(1.510)

(2.713)

(3.040)

1.406

1.454

0.774

0.817

(0.599)

(0.620)

(0.359)

(0.378)

1.526***

1.511***

1.557***

1.535***

(0.138)

(0.127)

(0.143)

(0.130)

1.122**

1.122**

1.118**

1.121**

(0.042)

(0.042)

(0.042)

(0.041)

2.230***

2.196***

2.248***

2.219***

(0.089)

(0.091)

(0.088)

(0.090)

1.118

1.175

0.998

1.142

(0.239)

(0.288)

(0.231)

(0.275) 62,803

Within-­Effects Homicide rate

­Percent black pop.

Population density

Income per ­capita

Between-­Effects Homicide rate

­Percent black pop.

Population density

Income per capita

Observations

62,810

62,803

62,810

State fixed effects

Yes

Yes

No

No

Year fixed ­effects

Yes

Yes

No

No

State-­Year fixed effects

No

No

Yes

Yes

Model converged

Yes

Yes

Yes

Yes

Source: Adapted from Brandon L. Garrett, Alexander Jakubow, and Ankur Desai, “The American Death Penalty Decline,” 105 Journal of Criminal Law and Criminology (forthcoming 2017). Regression coefficients expressed as ­factor changes. County-­clustered robust standard errors in parentheses. +

p