Vol. 13 No. 2 (February 2003)
BEYOND REPAIR? AMERICA’S DEATH PENALTY, by Stephen P. Garvey (ed.). Durham, NC: Duke University Press, 2003. 264pp. Cloth - $54.95 ISBN 0-8223-2960-3. Paper - $18.95 ISBN 0-8223-3043-1.
Reviewed by Jack E. Call, Department of Criminal Justice, Radford University
In BEYOND REPAIR? AMERICA’S DEATH PENALTY, editor Stephen Garvey assembles seven essays that present significant new perspectives on the death penalty. In the first essay, entitled “Second Thoughts: Americans’ Views on the Death Penalty at the Turn of the Century,” Samuel Gross and Phoebe Ellsworth discuss recent trends in public opinion concerning the death penalty. They note that after two decades of public support for the death penalty in excess of 70%, favorable sentiment began dropping “significantly [in 1996] from the 70-75 percent range to the 63-68 percent range” (p. 11). The authors attempt to explain the reasons for this decline. After noting a consistent relationship between public perception of violent crime and support for the death penalty, they indicate that the public view since 1996 has been that the crime rate is decreasing. A dampened crime rate, the authors suggest, may not account for lowered public support for capital punishment, but it disposes the public to be more receptive to new information.
Gross and Ellsworth label this new information “the New Script.” Under the “old script,” death penalty cases were scrutinized ad nauseam while the victims’ families agonized awaiting closure. The old script regime brought a seemingly endless judicial review of capital convictions, but it insured that the ultimate penalty was reserved for only those whose guilt was clear. With the New Script we still see lengthy appeals in capital cases; however, innocent persons have been convicted and placed on death row. The scientific breakthrough that convinced the public that there have been wrongful convictions in capital cases was DNA testing. The “poster boy” for this point of view has been Governor George Ryan of Illinois, a conservative Republican who placed a moratorium on executions in Illinois because of a fear that innocent persons had been sentenced to death in his state. Gross and Ellsworth see great significance in the Illinois moratorium, but they do not see further movement toward opposition to the death penalty as inevitable. If more states adopt moratoria, more cases of wrongful capital convictions are uncovered, and/or a clear case of wrongful execution of an innocent person is demonstrated, greater public opposition to the death penalty is likely. However, if none of those things happen and (especially) if crime rates were to increase again, they believe a return to high levels of public support for the death penalty is quite conceivable.
The second essay, “Capital Punishment, Federal Courts, and the Writ of Habeas Corpus,” is written by Larry Yackle, a well-known authority on habeas corpus. The essay begins by briefly tracing the history of habeas corpus before the Supreme Court. By the time of its decision in BROWN v. ALLEN in 1953, the Court had made the writ an effective mechanism allowing federal court review of state criminal cases. Selective incorporation of nearly all the rights of the criminally accused in the Bill of Rights (largely in the 1960s) meant that there were a substantial number of questions that could be raised in state criminal cases. Since the 1960s, however, both the Court and Congress have been largely hostile to this process and have restricted the ability of state-convicted defendants to utilize habeas corpus effectively. Yackle explains that this assault cut back on the content of federal rights, limiting the authority of federal courts where state courts have rejected the federal claim, and creating procedural hurdles that state-convicted defendants must clear in order to bring a claim in federal courts.
Although the discussion tends to be technical and sometimes tedious, it does provide support for three of Yackle’s major points: 1) The law of habeas corpus has become so technical and complicated that it requires a great deal of time to dispose of the legal issues that are often raised; 2) all the exertion required by the process does little to insure that an innocent person was not convicted; 3) Congress and the Court have “shot themselves in the foot.” All their efforts to streamline habeas corpus have produced a process that is even more complicated, thereby insuring that the process will continue to be inefficient and time-consuming.
The third essay, “`Until I Can Be Sure’: How the Threat of Executing the Innocent Has Transformed the Death Penalty Debate,” is written by two CHICAGO TRIBUNE reporters, Ken Armstrong and Steve Mills. The essay recounts the history of wrongful convictions in capital cases in the United States, but concludes that there is no officially-accepted evidence that an innocent person has ever been executed. The authors note that the UK has officially recognized two wrongful executions. The recognition of the first of these in 1953 probably contributed to the decision to abolish the death penalty there in 1969.
The essay examines the 285 cases that resulted in death penalty sentences in Illinois since the death penalty was reinstated in 1977. From that group of cases, the essay identifies several questionable factors associated with the convictions. For example, in 33 cases, the defendant was represented by an attorney who was subsequently disbarred or suspended. In 46 cases, the prosecution presented evidence from jailhouse “snitches.” In at least 20 cases, the prosecution presented testimony concerning visual comparisons of hair, and in 35 cases, black defendants were convicted (and sentenced) by all-white juries. (The authors did another study of death penalty cases in Texas and found similar factors in those cases as well.) Although this information is certainly interesting and worth noting, Armstrong and Mills make no effort to connect these questionable fact patterns with wrongful convictions.
The authors also explore some proposals for reform in capital cases to prevent wrongful convictions, relying primarily on the work of the Constitution Project and Lawrence Marshall, a Northwestern University law professor (p. 115). Some of the more interesting proposals call for establishment of minimum standards for defense attorneys, adequate compensation for such defense attorneys, a requirement that prosecutors utilize an “open-file” policy, elimination of rules that place a time limit on introduction of newly discovered evidence after trial, prohibition of convictions based on the testimony of a single eye witness, and prohibiting the introduction of testimony from jailhouse snitches unless the trial judge has concluded that the evidence is reliable (after a hearing on the matter). The authors conclude by noting the curious reluctance of American government officials to reexamine capital convictions when new evidence is uncovered that casts doubt on the accuracy of the verdict. They contrast this attitude with the approach taken in England, where the Criminal Cases Review Commission was established in 1996 to reexamine old cases in which a wrongful conviction may have occurred.
The fourth essay, “Race and Capital Punishment,” by Sheri Lynn Johnson, explores the effects of race. After a brief history of race and the death penalty, the essay examines some of the empirical evidence pointing to the influence of race on outcomes. Primary emphasis is placed on the studies of David Baldus and the 1990 GAO report that summarized and critiqued existing empirical work on the subject. The essay also considers non-statistical evidence suggestive of pernicious effects of race in death penalty cases—that may help explain the causal relationships suggested by statistical studies. The essay then examines some of the social psychological literature that might explain the persistence of racial discrimination in capital sentencing. It also discusses some of the reasons why the law has proven inadequate to prevent this persistence. The article concludes pessimistically that the American legal system lacks the will or the resolve to come to grips with the issue of racial discrimination in capital cases.
The fifth essay is “Lessons From the Capital Jury Project,” by John Blume, Theodore Eisenberg, and Stephen Garvey. The essay reports findings from the Capital Jury Project (CJP). The findings are based on 3-4 hour interviews conducted with 1115 jurors who sat on 340 capital trials in fourteen different states—in about half the cases, the death penalty was imposed; in the other half, life imprisonment was the sentence. Among the more important findings are 1) a substantial number of the jurors should not have been permitted to serve because they were not “life qualified”—i.e., they felt the death penalty was the only appropriate sentence for “convicted murderers;” 2) many jurors did not understand the instructions they had been given about aggravating and mitigating circumstances; and 3) many jurors misunderstood the role that findings of “future dangerousness” and “especially heinous, atrocious, or cruel” murder were supposed to play in the death penalty decision. The interviews also indicated that jurors substantially underestimated the time that a convicted killer would probably have spent in prison before being released if sentenced to life imprisonment.
The study found that the first vote cast by each juror is most critical. If less than two-thirds of the jurors in a case voted for a death sentence on the first vote, the death penalty was never imposed; conversely, if three-quarters of the jurors voted for a death sentence on the first vote, the death penalty was always the sentence. The authors found that white jurors, Southern Baptist jurors, and jurors who believed strongly that death was an appropriate penalty for convicted murderers were significantly more likely to vote for a death sentence on the first vote than were other jurors. On the basis of these findings, the authors recommend that jury instructions in capital cases be written more carefully, that defense attorneys recognize the need to use opening and closing statements as a means of educating jurors about the instructions, that steps (unspecified by the authors) be taken to insure that jurors understand that life without parole really means what it suggests, and that all juries in cases where the defendant is black have some black jurors (although the authors suggest this in such a subtle manner that it is difficult to discern precisely what they are recommending).
The sixth essay is “International Law and the Abolition of the Death Penalty,” by William Schabas. This essay documents the growing international trend toward abolition of the death penalty or the placement of very serious restrictions on its use. The essay notes that, while this is a recent trend (approximately over the last thirty years), it is rapidly gaining momentum. In 1989, 44% of the world’s nation-states were abolitionist “in one form or another” (p. 181). By 2000, the proportion had grown to 64%. Nations cannot be accepted into the Council of Europe if they have the death penalty. When the United Nations has needed to fill legislative voids in nations that it has administered in “post-crisis situations,” such as Cambodia and Kosovo, it has abolished the death penalty. In 1998, the European Union’s General Affairs Council announced its intention to “work towards the universal abolition of the death penalty” (p. 199). The 1998 Rome Statute of the International Criminal Court, ratified by 139 states (some of which are death penalty countries), excludes the death penalty as a permissible punishment.
Schabas paints a picture of a world which increasingly views the death penalty as a violation of human rights and which finds repugnant its continued application by the United States, especially in cases involving juveniles and the mentally retarded. (The decision of the U.S. Supreme Court prohibiting execution of the mentally retarded was handed down after this essay was written). The author probably makes no points with his American readers by referring to the American criminal justice system as “harsh and repressive” (p. 210). Moreover, he makes a strong case for the increasing international isolation of the United States on the death penalty question.
In a postscript entitled “The Peculiar Present of American Capital Punishment,” Franklin Zimring brings this collection of essays to a close. Rather than systematically reviewing the implications of each chapter, Zimring focuses instead on the important point that the United States is really not one nation in its approach to the death penalty. Twelve states prohibit the death penalty, seven states with death penalty statutes have not executed anyone since GREGG v. GEORGIA “re-consitutionalized’ the death penalty in 1976, and several other states (and the federal government) have executed only a handful of people since then. Indeed, the overwhelming majority of executions have been carried out in only a few states.
He closes with the important observation noted in some of the earlier essays – even supporters of the death penalty in the United States are now hopelessly conflicted about the death penalty. They despair of the protracted delays that result in executions years after imposition of the death sentence, but they are also becoming very concerned about the possibility of executing an innocent person. Zimring concludes that there is only one way to avoid this dilemma – outright elimination of the death penalty. Zimring’s final conclusion is perhaps the strongest anti-capital punishment statement contained in this book. While the book is clearly unenthusiastic about the sanction, it is not an anti-death penalty polemic. Given this overall tone, students who favor the death penalty will probably not react emotionally to the essays. The essays are well-written at a level that undergraduate students should find accessible but are also challenging enough to fit well in a graduate-level course. Although the literature discussing the death penalty is vast, this volume is a useful addition to the discussion.
REFERENCES
Baldus, David C. et al. 1998. “Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia,” 83 CORNELL LAW REVIEW 1638.
U.S. GENERAL ACCOUNTING OFFICE. 1990. “Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities.”
Marshall, Lawrence.
CASE REFERENCES
BROWN v. ALLEN, 344 U.S. 443 (1953).
GREGG v. GEORGIA, 428 US 153 (1976).
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Copyright 2003 by the author, Jack E. Call.