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Posted November 17, 2005
Death Penalty Politics Skews Outcomes Toward Execution, Smith Says

In states that have capital punishment, institutional pressures in the justice system skew the outcome in death penalty cases toward conviction and execution, law professor Stephen Smith said in lunch remarks to the Board of Trustees and Alumni Council meeting Nov. 4. Better funding for indigent defense and higher standards of effective representation for the accused would likely result in more life sentences and make execution more rare. “Mending it could end it,” Smith said.

“Supporters of the death penalty think that our current system has elaborate procedural protections and bends over backwards to make every effort to see that those who get the death penalty are society’s worst murderers, and that if you get the death penalty you really deserve it,” he said.

But the reality is that the United States has “a highly politicized system” that also results in certain types of defendants, typically those unlike jurors, being sorted toward execution.

If the Supreme Court uses constitutional arguments to regulate the death penalty “through a procedural approach that ignores the underlying political reality, the effort is doomed,” Smith said, acknowledging that certain procedural reforms the Court could institute would lead to a fairer death penalty.

The Court’s 1972 ruling in Furman v. Georgia declared that states must have valid procedures that allow for some predictability in the imposition of capital punishment and that most states had procedures that were unconstitutional. The decision caused a political firestorm, Smith said, and states rushed to amend their statutes.

“The death penalty became a charged political issue in a way it hadn’t been in a long, long time. Elected officials and voters had to take positions on capital punishment, and pro-death penalty views hardened.”

The Court demanded procedures that “channel the discretion of jurors to make sure the death penalty gets serious thought,” Smith explained, but “if its aim was fairness and visible rationality, the Court was sadly mistaken.”

The politics of the death penalty is such that capital punishment regimes are “skewed fairly dramatically toward death rather than away from it.”

The key players in this bias are legislators, elected state judges, and prosecutors, all of whom want to signal the public that they are tough on crime, he said.  An even more important factor in tilting the scales of death in favor of the prosecution is a “deeper, institutional kind of politics.” Voters aren’t the only constituency legislators are trying to appeal to, he said. “Even when public is not wild about the death penalty, legislators have strong incentives to use capital punishment to gain the approval of police and prosecutors.

“One thing legislatures do is restrict access to the courts,” Smith said. “Most people do not know anything about habeas corpus. But police and prosecutors know the way the system really is. They don’t like the fact that prisoners can use court challenges to delay executions.”

In a 1996 anti-terrorism act, for example, Congress restricted prisoners’ access to the federal courts. Many states have laws sharply restricting the ability of prisoners to seek relief based on newly discovered evidence.

“These are signals voters may not notice, but police and prosecutors surely do, and passage of such skewed death penalty rules is part of the deeper institutional politics of death.”

The second feature of the bias is what Smith called the “funding squeeze.”  “Indigent defendants obviously have a constitutional right to representation by counsel, “ he said. “The Supreme Court hasn’t defined what indigence is, nor has it defined the conditions under which state–funded defense can be required to operate.

“The contours of the vitally important right to counsel are left to the states to flesh out. It shouldn’t come as a surprise to anyone that they flesh them out in a less than impartial way.

“You fund fully the police side and the prosecution side, but underfund the defense side. When you do that, you have seriously overworked public defenders and appointed counsel with crushing caseloads in these cases,” Smith said. This means that many defense lawyers will be unable to do an effective job testing the prosecution’s case and making an effective case for mercy.

He pointed out that “Virginia has the lowest number of reversals in capital cases and the highest execution rate of any state in the country. We’re number one in the death penalty, per capita. The funding squeeze probably has something to do with that. Virginia is dead last—50 out of 50—in terms of funding indigent defense.

“Prosecutors have an lot more resources: more prosecutors, more investigators, more photocopiers—more everything. Public defenders handle the same cases (and more of them) but get far less resources, especially in Virginia.  Why?  Because public defenders are wearing the wrong jersey—they’re on the wrong team from the legislators’ perspective. The ‘right’ one is the one that puts people in jail, not the one that keeps them out of it. So, Virginia seriously underfunds criminal defense representation and it has to show for it an enormously high batting average when it comes to executions.”

Prosecutors are politically accountable and “they bear the burdens of litigating these cases. They are the ones who are going to have to stand before juries and ask for the death penalty” and so they choose cases they are confident they can win. The public follows high-profile death penalty cases, “so prosecutors really don’t want to lose these cases. They are, consequently, less willing to share information with the defense in such cases.”

Prosecutors also have an incentive to keep the death penalty as a viable option in plea bargaining “because the death penalty can be a great ‘stick’ with which to extract guilty pleas from defendants.”

The selection of cases by prosecutors also “skews the demographics of death row,” Smith argued. “Jurors are more likely to give death to people who are not like them—the poor, the mentally retarded, the mentally ill, racial minorities.”  These groups are thus overrepresented in the group of people who are charged with capital offenses and who are sentenced to death.

Judges have the strongest incentive to be fair, Smith noted, because their rulings are subject to reversal by higher courts and because of strong expectations that judges will be impartial. Nevertheless, in most states judges are elected, and so even they have powerful incentives to err in favor of upholding, rather than overturning, death sentences, even when serious errors have been committed.
“The dynamic doesn’t depend primarily on what voters think,” Smith said. “It’s skewed by the institutional actors.

“I think there is a happy ending here,” Smith concluded. The Supreme Court is now very sensitive to the politics of death and aware that cases are skewed in favor of prosecution, he said. "It is using the proportionality standard of the Eighth Amendment [which prohibits cruel and unusual punishment] a lot more frequently.”  Recent decisions have forbidden the execution of juveniles and the mentally retarded. “The Court has taken those cases completely off the table.”
Even more promising, Smith said, is changed standards for what constitutes effective assistance of counsel. In a 1984 case, Strickland v. Washington, the Court adopted “a toothless standard” in which “virtually any mistake a defense lawyer made could be defended as a ‘strategic decision.’”

The Court is becoming aware that the funding squeeze means defense attorneys can’t mount an effective defense in complicated death penalty cases, he said, “because they can’t do investigations they need to do, which means you get a lot more death sentences handed down.”

Since 2000, the Court has been setting aside capital sentences on the basis of ineffectiveness of counsel.

Smith cited a Viriginia case, Williams v. Taylor, a capital murder case in which the defense lawyer threw a defendant on the mercy of the court but didn’t bother to offer any reason why the court should be merciful. “‘I know it’s hard to ask for mercy for this guy who didn’t show any mercy to his two victims,’” Smith quoted the attorney as saying, adding that he then went on to list the defendant’s other crimes and victims. “This was the defense argument to the jury!” said Smith incredulously. The defense attorney “missed a treasure trove of facts about mental retardation and serious physical, sexual, and emotional abuse” that could have been used to present a strong case against a death sentence, Smith said.
In a new trial with a new defense lawyer, plus the new mitigating evidence that went undiscovered in the first trial, the result was a life sentence. “Nothing changed except that in the retrial the defendant had a real lawyer,” said Smith. “You shouldn’t be sentenced to die because you had the worse lawyer."
• Reported by M. Marshall

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