Saturday, May 17, 2008

'Backlog' death-penalty rationale fatally flawed

By Cara H. Drinan
For the Journal-Constitution
Published on: 05/16/08

On April 16, the U.S. Supreme Court upheld the constitutionality of lethal injection. Before the ink on the court's opinion was dry, officials in Virginia, Texas, Florida and Oklahoma set in motion plans to execute inmates whose deaths had been on hold.

Three weeks later, Georgia became the first state in the nation to resume use of the death penalty when it executed William Earl Lynd —- part of what a spokesman for the Georgia attorney general's office called an attempt to clear "the backlog."

In light of the recent release and exoneration of death row inmates in North Carolina and Texas, the sense of urgency driving these states is both perplexing and troubling —- and in the case of Georgia, whose indigent defense system is collapsing, it's downright embarrassing. Officials in these states should be focused not on clearing execution backlogs but on whether their death row inmates received effective assistance of counsel.

In the wake of several lawsuits, in 2003 Georgia created its statewide indigent defense system, which was lauded at the time as an example of the type of system the American Bar Association recommends. But only five years after its creation, the fledgling system is a shambles. A 2006 ABA report found Georgia's capital defense services so flawed that the organization called for a moratorium on executions and capital prosecutions until the state could study and remedy those defects. Two years later, those flaws, including inadequate funding and failure to provide counsel for post-conviction appeals, not only remain but are metastasizing. The now-infamous case of Brian Nichols (who killed a judge, a court reporter and two law enforcement officers while being retried for rape in 2005) has cost taxpayers $2 million in defense costs alone, and the trial has not even begun. Moreover, the judge initially presiding over the Nichols trial was threatened with impeachment for unpopular pro-defendant funding decisions.

Despite his resignation for other reasons, the incident exposed a lack of judicial independence in Georgia and what Stephen Bright of the Southern Center for Human Rights called a threat to "the rule of law."

Other indigent defendants in Georgia have paid a heavy price for what the state has devoted to the Nichols trial. In 2007, the statewide defender system was forced to seek an emergency appropriation from the Legislature to remain operational; capital trials were put on hold; and capital defenders began to flee the system in the face of reduced compensation and excessive case-loads.

In short, as Carmen Hernandez of the National Association of Criminal Defense Lawyers said, "Georgia has refused to fund its system and, as a result, Georgia's system is once again broken. . . . It has gone from leading light to disgrace in a few short years."

It is ironic that Georgia won the race to resume executions, but the state is certainly not alone in its indigent defense funding crisis. In the last year, Arizona, Texas, Louisiana and Utah have all experienced attorney shortages as a result of their inability to fund capital-defense services adequately.

Elected officials in states that allow capital punishment must accept the fact that these funding crises are not a short-term phenomenon. Recent Supreme Court case law has only bolstered a capital defendant's right to special safeguards at trial, and as a result of these safeguards, capital cases cost anywhere from 40 percent to 70 percent more than nondeath cases.

There is only one meaningful way for these states to contain the costs of indigent defense in the long run: to replace the death penalty with life without parole, as New Jersey has recently done. Before abolishing its death penalty, New Jersey conducted an exhaustive study of the costs and benefits of keeping execution on the books. By doing so, legislators were able to satisfy their constituents that the death penalty simply was not worth its prohibitive price tag.

Georgia and the other states that are expeditiously trying to clear their death row calendars could learn a lot from the elected officials in New Jersey. Rather than acting in haste, lawmakers in these states should call for a moratorium on the death penalty so that its costs and benefits can be evaluated in a circumspect manner.

Cara H. Drinan is an assistant professor of law at the Catholic University of America in Washington.

1 comment:

dudleysharp said...

Learn from NJ, I hope Georgia and other states do!

DEAD WRONG: NJ Death Penalty Study Commission
by Dudley Sharp, Justice Matters, contact info below



The New Jersey Death Penalty Commission made significant errors within their findings. The evidence, contrary to the Commissions findings, was so easy to obtain that it appears either willful ignorance or deception guided their report.

A brief review.

FORMAT: Below, are the 7 points made within the New Jersey Death Penalty Study Commission Report, January, 2007. The RUBUTTAL presents the obvious points avoided by the Commission and discussed by this author, a death penalty expert.

I was invited to be a presenter, before the NJDPSC, but my time didn't fit their schedule.

1) There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent.


- The reason that 81% of Americans found that Timothy McVeigh should be executed was justice - the most profound concept in criminal justice, as in many other aspects of life. It is the same reason that New Jersey citizens, 12 jurors, put all those on death row.

- Although the Commission and the NJ Supreme Court both attempt to discount deterrence, logically, they cannot.

First, all prospects for a negative outcome deter some. This is not, logically or historically rebutted. It cannot be. Secondly, those studies which don't find for deterrence, do not say that it doesn't exist, only that their study didn't find it. Those studies which find for deterrence did. 16 recent studies do.

- The Commission had ample opportunity and, more importantly, the responsibility to read and contact the authors of those many studies which have, recently, found for deterrence. There seems to be no evidence that they did so. On such an important factor as saving innocent lives, why didn't they? The testimony before the Commission, critical of those studies, would not withstand a review by the authors of those studies. That should be an important issue that the Commission should have investigated, but did not.

- LIFE WITHOU PAROLE: The Commission considered the risk of innocents executed and concluded that it wasn't worth the risk and that a life sentence would serve sufficiently without that risk to innocents.

Again, the Commission avoided both fact and reason. The risk to innocents is greater with a life sentence than with the death penalty.

First, we all know that living murderers, in prison, after escape or after improper release, are much more likely to harm and murder, again, than are executed murderers - an obvious truism ignored by the Commission.

Secondly, no knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law. Therefore, it is logically conclusive, that actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.

Thirdly, there has been a recent explosion of studies finding for death penalty deterrence. The criticism of those studies has, itself, been rebutted.

- Therefore, in choosing a life without parole and calling for the end of the death penalty, the Commission has made the choice to put more innocents at risk - the opposite of their stated rationale.

2) The costs of the death penalty are greater than the costs of life in prison without parole, but it is not possible to measure these costs with any degree of precision.


- The NJ legislature's own cost review found that the cost differential was indeterminate. However, based upon their exclusions, LWOP may very well be more expensive.

- For the amount of time and resources allegedly expended by the Commission, this section of their review was unconscionable in its lack of responsibility to the Commission's directive.

- The Commission concludes that the current system in New Jersey is very expensive, without noting the obvious ways in which those issues can be addressed to lessen those costs. Why?

One example, they find that proportionality review cost $93, 000 per case. Why didn't the Commission recommend doing away with proportionality review? There is no reason, legally, to have it and it has been a disaster, cost wise, with no benefit.

Secondly, the Commission states: "Nevertheless, consistent with the Commission's findings, recent studies in states such as Tennessee, Kansas, Indiana, Florida and North Carolina have all concluded that the costs associated with death penalty cases are significantly higher than those associated with life without parole cases. These studies can be accessed through the Death Penalty Information Center." (Report, page 33).

On many topics the Death Penalty Information Center has been one of the most deceptive or one sided anti death penalty groups in the country. While it is not surprising that the Commission would give them as a reference, multiple times, it doesn't speak well of the Commission.

Did the Commission read any of the studies referenced by the DPIC? It appears doubtful, or the Commission would not have referenced them.

For example, let's look at the North Carolina (Duke University) study. That cost study compared the cost of only a twenty year "life sentence" to the death penalty. Based upon that study, a true life without parole sentence would be more costly than the death penalty. Somehow the Commission missed that rather important fact.

These types of irresponsible and misleading references by the Commission do nothing to inspire any confidence in their findings, but do reinforce the opinion that their conclusions were predetermined.

Please see "Cost Comparisons: Death Penalty Cases Vs Equivalent Life Sentence Cases", to follow.

3) There is increasing evidence that the death penalty is inconsistent with evolving standards of decency.


The Commission uses several references to prove their point. None of them succeeded.

- The first was based upon polling in New Jersey. The data showed strong support (78%) for executions in NJ, except when asking those polled to choose between a life sentence or a death sentence, for which life gets greater support. The major problem with this long standing and misleading polling question is that it has nothing to do with the legal reality of sentencing. Secondly, that poll shows broad support for BOTH sanctions, not a call to abandon either. The Commission, somehow, overlooked that obvious point.

Jurors have the choice of both sentences in states with the death penalty and life without parole. Therefore, a proper polling question for NJ would be,

A) should we eliminate the death penalty and ONLY have life without parole? or
B) should we give jurors the OPTION of choosing life or death in capital murder cases?

Based upon other polls, I suspect B would be the resounding winner of this poll in NJ.

We know support is 78% in NJ, for crimes similar to those on NJ death row.

Secondly, the Commissions polling speaker avoided the most obvious and reliable polling question on this topic - asking about the punishment for a specific crime, just as jurors have to decide.

NOTE: 78% of NJ citizens support the death penalty for crimes such as those on NJ's death row. (Dec., 2007)

81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial rapist/murderer Michael Ross.

Thirdly, poll New Jersey citizens with the following questions. Is life without parole or the death penalty the most appropriate punishment for those who rape and murder children? Or should NJ remove the death penalty as a jury option for those who rape and murder children?

- Two religious speakers spoke against execution. Both are easily rebutted by religious scholars holding different views.

- Another alleged example of this evolving standard is based upon the fact there has been a reduction in death sentences. Such reduction is easily explained by a number of factors, other than some imagined "evolving standard of decency".

Murders have dropped some 40%, capital murders have likely dropped by even a greater number, based upon other factors. This, by itself, explains the overwhelming percentage of the drop in death sentences.

In addition, many prosecutors, such as those in NJ, know that their courts will not allow executions, leading to prosecutorial frustration as a contributing factor in any reduction - not an evolving standard of decency, but an evolving and increasing frustration.

Please review: "Why the reduction in death sentences?", to follow.

4) The available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey.


In fact, there is no data to support any racial bias, invidious or otherwise. The Commission must have read the series of NJ studies.

5) Abolition of the death penalty will eliminate the risk of disproportionality in capital sentencing.


Yes, Commission, and the abolition of all criminal sentences will eliminate the risk of disproportionality in all sentences, as well. This is hardly a rational reason to get rid of any sentence. Get rid of the expensive and unnecessary proportionality review.

6) The penological interest in executing a small number of persons guilty of murder is not sufficiently compelling to justify the risk of making an irreversible error.


- The risk to innocents is greater with life without parole than with the death penalty. See (1), above LIFE WITHOUT PAROLE.

7) The alternative of Life imprisonment in a maximum security institution without the possibility of parole would sufficiently ensure public safety and address other legitimate social and penological interests, including the interests of the families of murder victims.


This Commission statement is quite simply, false.

- Life imprisonment puts more innocents at risk than does the death penalty.

- Justice, just punishment, retribution and/or saving innocent lives, among others, are all legitimate social and penological interests all served by the death penalty.

- 81% of Americans supported the execution of Timothy McVeigh. 85% of Connecticut citizens polled supported the execution of serial, rapist/murderer Michael Ross.

The overwhelming majority of those polled did not have family members murdered.

Is the Commission trying to tell us that a poll of NJ murder victim survivors would show a majority opposed to the death penalty? Of course not, that would be as absurd as the Commissions conclusions in this section.


Almost without exception, The Commission accepted the standard anti death penalty position, without presenting the easily accessible rebuttal to that position.

Enough said.


NJ Death Penalty Study Commission

It is alleged that the Commission had fair hearings, with both sides adequately presented.

Alleged fair hearings mean nothing, if decisions are predetermined, as this one was.

11 of the 13 committee members were either known or leaning anti death penalty. The contempt for and discounting of pro death penalty positions in both the hearings and final report confirm that.

All the prosecutors on the Commission were up for reappointment - by the staunchly anti death penalty Governor. Would any of them sacrifice their livelihood to fight for the death penalty? Of course not and they did not.

One committee member - one - was confirmable as pro death penalty.

Most, if not all, of Committee Chairman Rev. Howard's previous affiliations were anti death penalty.

Rev. Howard's fairness is best shown by the Commission's final report, which was laughable in its exclusion of pro death penalty positions, positions which would have either overwhelmed or neutralized the anti death penalty, predetermined conclusions of the panel, had those pro death penalty positions been given a fair showing in that report - which they weren't.

The Commission hearings and final report were, as all show trials, a farce.

copyright 2007 Dudley Sharp

Dudley Sharp, Justice Matters
e-mail, 713-622-5491,
Houston, Texas

Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.

A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.

Pro death penalty sites


http://yesdeathpenalty(DOT) (Sweden)

Permission for distribution of this document, in whole or in part, is approved with proper attribution.