« Bernie Ebbers gets sympathetic sentencing ear in Second Circuit | Main | Sixth Circuit embraces presumption of reasonableness »

January 31, 2006

Two (long) reports on problems administering the death penalty

For anyone interested in a lot of reading about capital punishment, Monday was a special day.  Courtesy of the American Bar Association (ABA) and Amnesty International (AI), we now have over 500 pages analyzing flaws in the operation of the death penalty in the United States:

1.  The ABA report, previously noted and linked here, is focused on the application of the death penalty in Georgia and is part of the Death Penalty Moratorium Implementation Project of the ABA Section of Individual Rights and Responsibilities.  The full ABA report runs over 300 pages, and this ABA news release gives an account of some of its findings:

Areas the [study] team identified as in great need of reform include inadequate funding for defense counsel, failure to provide defense counsel in state habeas proceedings, lack of meaningful review of proportionality of sentences, inadequate pattern jury instructions addressing mitigation, continued existence of racial disparities in capital sentencing, and the unreasonably strict "beyond a reasonable doubt" burden of proof required to prove mental retardation.

Notably, this Atlanta Journal-Constitution article reports that state officials are "unfazed by death penalty criticism" and that "Georgia political leaders showed little interest Monday in imposing a moratorium on death sentences or overhauling capital punishment."  Oh well.  I guess the ABA report authors should be encouraged by this editorial in the Macon Telegraph arguing that Georgia should "put death sentences on hold until flaws are fixed."

2.  The AI report, as detailed in this Reuters article, is focused on the US's willingness to sentence to death and execute the severely mentally ill.  The full AI report, which runs nearly 200 pages, is available here and a (convenient?) 43-page summary can be accessed here.  Also, this AI news release gives an account of some of its findings:

The report focuses on the systemic problems confronting the mentally ill and chronicles the cases of 100 severely mentally ill offenders who have been executed since 1977....  Citing pervasive systemic failures in both the healthcare and criminal justice systems, the report also highlights the grim situation of the mentally ill currently on death row, which according to the US National Association of Mental Health is 5 to 10 per cent of the US's total death row population of approximately 3,400.

My (inappropriate?) reaction: I view these reports as a disconcerting waste of time and energy, and as further proof that the Supreme Court is not alone in getting caught up in a "legal culture of death."  I continue to be troubled by how much time and attention is given to death penalty processes and defendants, especially since (1) everyone on death row has been convicted and sentenced to death for murder, and (2) the alternative to execution is life in prison.  Putting innocence issues aside, I find it amazing (and annoying) how much energy is spent trying to ensure that a bunch of murderers get to spend a bit more time locked in a cage before they die.

I find the ABA's extensive report on Georgia's capital system and its plans to do similar reports for 15 other states especially disconcerting.  According to the report, over the last 30 years, Georgia has imposed 328 death sentences, but has executed only 39 people and now has 101 defendants on death row.  Even without digging deeper into these numbers, I think we can reasonably conclude that a murderer sentenced to death in Georgia is (far?) more likely to functionally serve a life sentence than to be executed.  (I suspect this is true in every state except possibly Texas, Virginia, Oklahoma and Missouri.) 

Is there much benefit from extended reports which essentially seek to increase the chance a few more murderers die naturally in prison rather than get executed?   And is anyone surprised that these sorts of reports produce nothing more than a shrug from politicians?  Indeed, is it likely that anyone who currently supports the death penalty will even read all 300+ pages of the ABA's Georgia report?

These reactions are driven by my sense that there are far greater injustices in our criminal justice system than what we see in the (over-analyzed) death penalty system.  There are at least 132,000 persons in the US serving life imprisonment, some for petty crimes because of a personal history as a small-time thief or drug dealer.  And, of the more than 2,000,000 persons in jail or prison, nearly half are serving time for non-violent offenses.  In my view, these defendants merit the time and attention of groups like the ABA and AI a lot more than the murderers on death row.

January 31, 2006 at 06:58 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Two (long) reports on problems administering the death penalty:


ROCK ON BIG DOUG!! You speak the truth to the legal elite. Being singlemindedly anti-death penalty is "fashionable." It is also "safe" because these people are not getting out of prison regardless. Addressing the broader issue of our society's use of incarceration is far messier and far more important.

Posted by: anon | Jan 31, 2006 8:26:56 AM

Bully for you, Doc! Even in TX more murderers get life than death sentences.

I'm no fan of the death penalty -- it's unevenly and sometimes wrongfully applied, and I don't trust the government to choose who lives or dies. We've got a state senator in TX who wants the death penalty for regular ol' drug dealers, if you can imagine. But in the scheme of criminal justice crises, it's not remotely the worst problem we face compared to excessive punishments and overcriminalization of petty behaviors -- you've hit the nail on the head. Bravo.

Posted by: Scott | Jan 31, 2006 10:25:37 AM

Odd Doug you spend an awful lot of time on the issue of the death penalty if it is not that important. AI is involved with the DP issue as it is viewed as a human rights issue; incarceration, however, for nonpolitical reasons, however, is not within AI's mandate.

Posted by: anon | Jan 31, 2006 10:36:45 AM

On the last anon comment, let me just explain that I do not mean to assert that the DP is unimportant. Rather, my chief point is that public policy groups, appellate courts, the media, and politicians give far too much time and attention to the death penalty relative to other criminal justice issues in general and non-capital sentencing issues in particular. I may fall prey to the same tendency, although I do think I strike a somewhat better balance in my coverage.

Also, I would be curious to know why AI does not consider life imprisonment without the possibility of parole or the conditions of supermax and other prisons or severe residency restrictions and other collateral consequences to be human rights issues.

Posted by: Doug B. | Jan 31, 2006 12:11:27 PM

Aww, Doug. You know (I hope) that I share many of your qualms; I've gotten to see up close the disproportionate share of very limited criminal defense resources that flow to death penalty defense in the federal system. But there's another (many-faceted and many-leveled) side to this issue that I think you, perhaps for polemical reasons, tend to short-shrift. I'm not going to give you the whole screed here -- you know most of it anyway -- but just think about your concern with the abuse of the life sentence, for example. At the practical level that most concerns you (and it concerns me too, don't get the wrong idea), I think it will be difficult to make the case about the disproportionality (in fact, the cruelty and unusual-ness) of the life sentence while the death penalty remains as a (presumptively legitimate) point of comparison. Beyond that most practical level, there is the fact that historically and today as well, reforms of the death penalty ultimately benefit all criminal defendants. To take a mundane example, the recent NY Times series on lifers would have been unthinkable without the precedent of serious debate and reconsideration of the death penalty. And the significance of death penalty reform goes far beyond that. The focus on DNA evidence, and, flowing from that, innocence and wrongful convictions (for any crimes, capital or not) got its initial impetus from the prospect of the execution -- not the jailing -- of innocent defendants. Nothing (including arbitrary, unfair and/or prolonged incarceration) focuses the mind on the justice of the underlying procedures quite like a state's killing of its own citizen. And in fact, historically within the Anglo-American common law tradition, virtually all of the constitutional criminal procedural rights that we take for granted grew out of a judicial concern about the fairness and reliability of procedures that culminated in the taking of human life -- not, that is, in some abstract distinction between the difference between "criminal" as opposed to "civil" procedure. So however much I share your worries about the diversion of resources into the issues surrounding capital punishment, at the end of the day I'm far less willing to dismiss this phenomenon as totally irrational.

Posted by: Adam Thurschwell | Jan 31, 2006 12:17:36 PM

Adam, as you likely know, I share your perspective that attention generated by the death penalty often drives systemic reforms that help other defendants. Indeed, I have made this very argument on the blog and in a law review article for why this reality provides a reason for liberals to consider abandoning DP abolition.

Posted by: Doug B. | Jan 31, 2006 12:50:45 PM

I do indeed know it; I just thought this post was a little bit one-sided and decided to contribute my own lackluster account of the other side. But next time I will certainly cite your own work back to you -- you are always much more convincing than I am . . . .


Posted by: Adam Thurschwell | Jan 31, 2006 1:36:52 PM

I'm not sure I buy Adam's argument that only the death penalty can "focus the mind" of the public on innocence questions. In Texas, the Tulia episode spawned a great deal of reform legislation in the past several years, and those folks were incarcerated, not executed.

Posted by: Scott | Feb 1, 2006 10:23:59 AM

Scott, true enough, but I didn't say "only the death penalty," but "nothing like the death penalty" focuses one's mind. I stand by that. I certainly in no way mean to belittle the Tulia incident, or (more importantly) downplay the importance in any way of wrongful incarceration; my point is simply that for (I think understandable) reasons, wrongful death sentences and executions have driven the law of criminal procedure far more. By way of example, I believe you that Tulia has led to reforms in Texas's law (it certainly ought to), in part because it had very significant racial overtones in addition to the underlying innocence/law enforcement misconduct issue. But by (anecdotal, of course) point of comparison, the racially-motivated, wrongful death sentences of black men in Alabama in 1931 led to the creation of a new constitutional right (the right to the effective assistance of counsel) that eventually -- after initially being limited to capital cases -- benefited every felony defendant in the United States (the Scottsboro case, Powell v. Alabama). The point isn't that wrongful incarcerations don't lead to reforms -- sometimes they do -- but that fears about the wrongful exercise of the death penalty have been a much more powerful force for legal reforms, and that these reforms have, for the most part, ultimately extended beyond the capital context to include all criminal defendants. My larger point is that that history -- whether it's rational or not, whether death deserves the special status it's received or not (a separate question) -- is a factor that ought to be considered before we start complaining about all the seemingly disproportionate attention and resources that capital cases attract. As I said in my original comment, I worry a great deal about that too, but the historical role of capital punishment vis a vis noncapital criminal procedural rights shouldn't be forgotten, either.

Posted by: Adam Thurschwell | Feb 1, 2006 11:18:17 AM

"Putting innocence issues aside..." I did a spit-take on that one. Your comments were more crass than merely inappropriate. Is "who cares about a bunch of murderers" really reflective of the gravity and complexity of the issues at play? Who cares about a bunch of drug dealers? Who cares about a bunch of rapists? Who cares about a bunch of thieves? The problem is that not enough people care about them, at least not enough to see the humanity (however fragile or damaged) behind their rap sheet. You let your emotions get the better of you; unfortunately the wrong ones. There but for the grace of God...

Posted by: Bob Jenkins | Feb 1, 2006 5:03:30 PM


AI opposes LWOP, indeed, many in AI are split over replacing, in the words of one of AI's board member, "one human rights abuse with another." AI has also written on when conditions of confinement may result in human rights abuse. You might want to get up to speed before blasting AI.

Posted by: anon | Feb 1, 2006 6:52:38 PM

BOB: your comment suggests you misunderstand the thrust of my post. I am questioning why public policy groups seem to care so much more about a bunch of murderers than about the drug dealers and thieves and rapists who may suffer profounder injustices at the hands of our criminal justice system. The point of this post is not "who cares," but rather why do so many care so much about the murderers and yet seem to care so little about the much larger group of other offenders who need more time and attention from public policy groups concerned about injustices.

The ABA report is 300+ pages about essentially 101 current Georgia prisoners on death row. There are more than 1200 times that number of persons serving life imprisonment in the US. Were they getting comparable attention, the ABA would need to produce a report of over 350,000 pages(!).

I suggested putting innocence aside because I can understand the instinct that the prospect of executing an innocent merits extraordinary attention. But shouldn't life imprisonment for an innocent also produce extraordinary concern? Again, I return to the numbers: if the system gets guilt right 99.9% of the time, then there are 3 or 4 innocents on death row in this nation and 125 innocents serving life imprisonment.

ANON: I will plead ignorance on all the work of AI, and perhaps I misunderstood the earlier statement made in the comments that "incarceration for nonpolitical reasons is not within AI's mandate." My chief point in this post is not to unduly assail the fine work that I know AI does, but rather to encourage everyone concerned about injustices in the American criminal justice system to reflect on how best to spend time and energy in the effort to improve the system.

Posted by: Doug B. | Feb 2, 2006 6:46:18 AM

I don't think I misunderstood the thrust of your post, but perhaps I didn't respond clearly. The answer to your query -- "Why do public policy groups focus more attention on the flaws, injustices, etc. of death penalty than they do on more the flaw, injustices, etc. meted out in more common, lesser penalties?"

One possible answer is that it is simply the end result of triage. Just as in a MASH unit, distribution of scarce resources goes to the most serious cases that are not lost causes. Most people seem to be gauging the less-common taking of life to be more common than the more-common taking of liberty. It may simply be that most people believe what the Supreme Court has observed: "death is different."

What I dislike about the triage explanation is that it assumes public attention is a zero-sum game -- that every editorial or movie about the death penalty is one less about mandatory minimums or drug laws. That sort of thinking pits the least among us -- and those who strive to assist them -- against each other. And that seems unnecessary. I've witnessed first hand the sorry state of many public defender systems, insanity of our drug laws and mandatory minimums, the horrors of youth corrections, the failures of our prisons and probation/parole systems to rehabilitate inmates into productive citizens, and on and on.

Clearly, we have many rivers to cross. I just don't think it's helpful to nip at the heels of those who might (currently) be in the lead.

Posted by: Bob Jenkins | Feb 2, 2006 1:28:10 PM

[w]ith my judgement in view our minds are not equal , .i see the law as a sound inforstructure but to the law that is the my paralegal way i see that it must be my way , photosinscces ,and all immackulant morphine ,, i care but u promote legal eightteen years old execute it now u know.. for the time being the rest is just cause. note u see your own primitive mind going down ;,

Posted by: flying fish | Sep 29, 2006 11:50:43 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB