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As of January 23, 2006, this country has executed 1,006 people since the Supreme Court allowed the resumption of the death penalty in 1976. ¹ Despite that horrific number, the Death Penalty Information Center’s 2005 “Year-End Report” reveals some hopeful changes. The 60 executions in 2005 were 39 percent below the peak of 98 in 1999. Even the death-happy state of Texas is making some progress. In 2005, it executed 19 people — well below its average of the past decade and fewer than half of the 40 people it put to death in 2000. The year ended with Virginia Governor Mark Warner commuting Robin Lovitt’s death sentence to life without parole. This left Virginia, the state with the second largest number of executions since 1976, with no executions in 2005.

Death sentences averaged about 300 a year nationally during the late 1990s. Since then, the number of death sentences imposed per year has dropped 55 percent, to 125 in 2004. The projection for 2005 is 96 sentences (based on data from the first three quarters of the year) — the lowest number since the death penalty was reinstated. This is down 70 percent from 1996, when courts sentenced 320 people to die. Even Harris County, Texas, which is often referred to as the “capital of capital punishment,” imposed only two death sentences in all of 2005.

Why are these numbers changing? One likely reason is that Americans have been forced to acknowledge that the system is flawed and innocent people have been put on death row. They have been wrongly convicted for a number of reasons, including poor legal representation, mistaken identifications, unreliable testimony of people who swap their testimony for lenient treatment, and police and prosecutorial misconduct. Unfortunately, DNA testing reveals only a few wrongful convictions. In most cases, there is no biological evidence that can be tested. In those cases, we must rely on a properly working adversary system to bring out all the facts and help the courts find the truth. But even with a properly working adversary system, innocent people will be convicted. The best we can do is minimize the risk of wrongful convictions.

The innocence of some of those condemned to die has been discovered by sheer luck. For example, Ray Krone was convicted and sentenced to death in Arizona based on expert testimony that his teeth matched bite marks on the victim. During the ten years that Krone spent on death row, scientists developed the ability to compare biological evidence recovered at crime scenes with the DNA of suspects. DNA testing established that Krone was innocent. ²  

The governor of Virginia commuted Earl Washington’s death sentence to life imprisonment without parole in 1994 because of questions regarding his guilt. Were it not for that, Washington would not have been alive six years later, when DNA evidence — not available at the time of Washington’s trial or the commutation — established that he was innocent. Fortunately, he lived long enough to be released. ³  

Some have not been as lucky as Ray Krone or Earl Washington. In November, the Houston Chronicle reported on its lengthy investigation into the case of Ruben Cantu, a juvenile who was executed in Texas in 1993. Numerous witnesses have now changed their stories or come forward with new information exculpating Cantu, who always maintained his innocence. The jury foreman, presiding judge, defense attorney and a prosecutor familiar with the case all have expressed doubts about the reliability of the original conviction.
Thirty years of experience has demonstrated that the death penalty is not imposed for all murders, for most murders, or even for the most heinous murders. It is imposed upon a random handful of people convicted of murder — often because of factors such as the political interests and predilections of prosecutors, ⁴ the quality of the lawyer appointed to defend the accused, and the race of the victim and the defendant. ⁵  

Even the United States Supreme Court has started to take a closer look at the implementation of the death penalty. In Wiggins v. Smith⁶ and Rompilla v. Beard, ⁷ the Supreme Court found that trial counsel had provided ineffective assistance of counsel by failing to conduct an adequate mitigation investigation. In both cases, the Court turned to the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases as the standards to be applied when evaluating effective representation. ⁸  

The Supreme Court in Atkins v. Virginia ⁹ and Roper v. Simmons ¹⁰ barred the execution of those with mental retardation and juveniles. Efforts are now being made to extend the principles of Atkins and Simmons to capital defendants who suffer from mental illness. The ABA’s Task Force on Mental Disability and the Death Penalty is developing a proposal outlining recommended measures to protect persons with mental illness from the death penalty. ¹¹  

Finally, more and more people recognize that the death penalty is not worth the cost. New York spent more than $170 million on its death penalty over a 10-year period, from 1995 to 2005, before its highest court declared its death penalty law unconstitutional. During that time, the state did not carry out a single execution. Similarly, Kansas did not carry out any executions between 1994, when it reinstated the death penalty, and 2004 when the state supreme court ruled it unconstitutional. Kansas had eight people sentenced to death, six from one county. New Jersey, which has just declared a moratorium on executions, has spent $253 million on its death penalty since 1983. It has yet to carry out an execution and has only 10 people on its death row. In other words, the state has spent a quarter of a billion dollars over 23 years and has not carried out a single execution.

As former Supreme Court Justice Arthur Goldberg said, “the deliberate institutionalized taking of human life by the state is the greatest degradation of the human personality imaginable.” It is not just degrading to the individual who is tied down and killed. It is degrading to the society that carries it out. It coarsens the society, takes risks with the lives of the poor, and diminishes respect for life and the belief that any person is capable of redemption. It is a relic of another era. It is not serving any purpose in our society and it is not worth the cost. It is time to abandon it.

Notes

1. Thanks to Professor Stephen Bright for his permission to borrow liberally from his testimony before the Senate Subcommittee on the Constitution, Civil Rights, and Property Rights, February 1, 2006.
2. Henry Weinstein, Arizona convict freed on DNA tests is said to be the 100th known condemned U.S. prisoner to be exonerated since executions resumed, Los Angeles Times, April 10, 2002.
3. Brooke A. Masters, Missteps on Road to Injustice: In Va., Innocent Man was Nearly Executed, Washington Post, Dec. 1, 2000, at A1.
4. Some prosecutors have been agreeing to pleas with life without parole rather than continuing to seek the death penalty. As a result of a plea bargain, Ted Kaczynski, the Unabomber, who killed three, avoided the death penalty. Serial killers Gary Leon Ridgway, who pleaded guilty to killing 48 women and girls in the Seattle area, and Charles Cullen, a nurse who pleaded guilty to murdering 29 patients in hospitals in New Jersey and Pennsylvania, also avoided the death penalty through plea bargains, as did Eric Rudolph, who killed a security guard in Birmingham and set off a bomb that killed one and injured many more at the 1996 Olympics.
5. See, e.g., Glenn L. Pierce & Michael L. Radelet, The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999, 46 Santa Clara L. Rev. 1 (2005).
6. Wiggins v. Smith, 539 U.S. 510 (2003).
7. Rompilla v. Beard, 125 S. Ct. 2456 (2005).
8. ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31 Hofstra L. Rev. 913 (2003).
9. Atkins v. Virginia, 536 U.S. 304 (2002).
10. Roper v. Simmons, 543 U.S. 551 (2005).
11. See Symposium: The Death Penalty and Mental Illness, 54 Catholic U. L. Rev. 1113 (2005).

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