Struck by Lightning: Capital Punishment in the U.S.

By William Fisher

It couldn’t have taken more than a two-minute visit to the web site of The Innocence Project to persuade most rational adults that the death penalty is not only cruel and unusual, but a costly and ineffective way to deter murder.

That’s the gist of a new report from the Death Penalty Information Center (DPIC). It’s entitled “Struck by Lightning: The Continuing Arbitrariness of the Death Penalty Thirty-Five Years After Its Re-instatement in 1976.” Richard Dieter, DPIC’s executive director, is the report’s author.

For those whose memories may be a bit hazy on this subject, the U.S. did have a moratorium on executions from 1972 to 1976, when the United States Supreme Court approved the reinstatement of the death penalty.

The moratorium came about in a 1972 court case, Furman v. Georgia, in which the United States Supreme Court decision that ruled on the requirement for a degree of consistency in the application of the death penalty. The case led to a de facto moratorium on capital punishment throughout the United States,

The moratorium came to an end when Gregg v. Georgia was decided in 1976. The Supreme Court consolidated Jackson v. Georgia and Branch v. Texas with the Furman decision, and thus also invalidated the death penalty for rape.

Gregg v. Georgia, et al reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States, upholding, in particular, the death sentence imposed on Troy Leon Gregg. Referred to by a leading scholar as the July 2 Cases and elsewhere referred to by the lead case Gregg, the Supreme Court set forth the two main features that capital sentencing procedures must employ in order to comport with the Eighth Amendment bar on "cruel and unusual punishments." The decision essentially overturned the de facto moratorium on the death penalty imposed by the Court in its 1972 decision in Furman v. Georgia 408 U.S. 238 (1972).

The report notes that by the end of the 1960s, all but 10 states had laws authorizing capital punishment, but strong pressure by forces opposed to the death penalty resulted in an unofficial moratorium on executions for several years, with the last execution during this period taking place in 1967. Prior to this, an average of 130 executions per year occurred.

From 1930, the first year for which statistics are readily available from the Bureau of Justice Statistics, to 1967, 3,859 persons were executed under civil (that is, nonmilitary) jurisdiction in the United States. During this period of nearly half a century, over half (54%) of those executed were black, 45 percent were white, and the remaining one percent were members of other racial groups -- American Indians (a total of 19 executed from 1930-1967), Filipino (13), Chinese (8), and Japanese (2), the report says, adding:

The vast majority of those executed were men; 32 women were executed from 1930 to 1967. Three out of five executions during that period took place in the southern U.S. The state of Georgia had the highest number of executions during the period, totaling 366 -- more than nine percent of the national total. Texas followed with 297 executions; New York with 329; California with 292; and North Caroline with 263. Most executions -- 3,334 of 3,859 -- were for the crime of murder; 455 prisoners (12%) -- ninety percent of them black -- were executed for rape; 70 prisoners were executed for other offenses.

Athough the death penalty had earlier been held unconstitutional because of its arbitrary and unpredictable application, the Court was willing to sanction new systems that states had proposed to make capital punishment less like “being struck by lightning” and more like retribution for only the “worst of the worst” offenders.

The Court also deferred to the states’ judgment that the death penalty served the goals of retribution and deterrence.

After three and a half decades of experience under these revised statutes, the randomness of the system continues. Many of the country’s constitutional experts and prominent legal organizations have concluded that effective reform is impossible and the practice should be ended. In polls, jury verdicts and state legislative action, there is evidence of the American people’s growing frustration with the death penalty. A majority of the nine Justices who served on the Supreme Court in 1976 when the death penalty was approved eventually concluded the experiment had failed.

Nonetheless, in 1976, the newly reformed death penalty was allowed to resume. However, it has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement. The constitution requires fairness not just in lofty words, but also in daily practice. On that score, the death penalty has missed the mark.

Four states have abolished the death penalty in the past four years, and nationwide executions and death sentences have been cut in half since 2000. A review of state death penalty practices exposes a system in which an unpredictable few cases result in executions from among thousands of eligible cases. Race, geography and the size of a county’s budget play a major role in who receives the ultimate punishment.Many cases thought to embody the worst crimes and defendants are overturned on appeal and then assessed very differently the second time around at retrial. Even these reversals depend significantly on the quality of the lawyers assigned and on who appointed the appellate judges reviewing the cases.

In such a haphazard process, the rationales of deterrence and retribution make little sense.

In 1976, the newly reformed death penalty was allowed to resume. However, it has proved unworkable in practice. Keeping it in place, or attempting still more reform, would be enormously expensive, with little chance of improvement. The constitution requires fairness not just in lofty words, but also in daily practice. On that score, the death penalty has missed the mark.

The latest edition of the NAACP Legal Defense Fund's "Death Row USA" shows that the number of people on death row in the United States is continuing to slowly decline, falling to 3,242 as of October 1, 2010. In 2000, there were 3,682 inmates on death row. Nationally, the racial composition of those on death row is 44% white, 42% black, and 12% Latino/Latina. California continues to have the largest death row population (714), followed by Florida (394) and Texas (322). Pennsylvania (220) and Alabama (204) complete the list of the states with the five largest death rows in the country. California and Pennsylvania have not carried out an executiion in over five years. Death Row USA is published quarterly by the NAACP Legal Defense and Educational Fund. The report contains the latest death row population figures, execution statistics, and an overview of recent legal developments related to capital punishment.

Four states in the past four years have abolished the death penalty, bringing the total of states without capital punishment to sixteen. As growing costs and
stark unfairness become harder to justify, more states are likely to follow that path.

The post-Gregg death penalty in the United States has proven to be a failed experiment.

The theory that with proper guidance to juries the death penalty could be administered fairly has not worked in practice. Thirty-five years of experience have taught the futility of trying to fix this stem. Many of those who favored the death penalty in the abstract have come to view its practice very differently. They have reached the conclusion that if societyʼs ultimate punishment cannot be applied fairly, it should not be applied at all.

There have been 272 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 34 states; since 2000, there have been 205 exonerations.

• 17 of the 272 people exonerated through DNA served time on death row.

• The average length of time served by exonerees is 13 years. The total number of years served is approximately 3,521.

• The average age of exonerees at the time of their wrongful convictions was 27.

Races of the 272 exonerees:

161 African Americans
80 Caucasians
21 Latinos
2 Asian American
4 whose race is unknown

• The true suspects and/or perpetrators have been identified in 122 of the DNA exoneration cases.

• Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued—until DNA testing (prior to conviction) proved that they were wrongly accused.

• In more than 25 percent of cases in a National Institute of Justice study, suspects were excluded once DNA testing was conducted during the criminal investigation (the study, conducted in 1995, included 10,060 cases where testing was performed by FBI labs).

• About half of the people exonerated through DNA testing have been financially compensated. 27 states, the federal government, and the District of Columbia have passed laws to compensate people who were wrongfully incarcerated. Awards under these statutes vary from state to state.

• 22 percent of cases closed by the Innocence Project since 2004 were closed because of lost or missing evidence.

Seventeen people have been proven innocent and exonerated by DNA testing in the United States after serving time on death row. They were convicted in 11 states and served a combined 209 years in prison – including 187 years on death row – for crimes they didn’t commit.

Kirk Bloodsworth served eight years in Maryland prison – including two years on death row – for a murder and rape he didn’t commit, before he was exonerated in 1993.

Rolando Cruz, and his co-defendant Alejandro Hernandez, served more than 10 years on Illinois death row for a murder they didn’t commit before DNA testing proved both men innocent in 1995.

Verneal Jimerson and Dennis Williams were sentenced to death in the infamous Ford Heights Four case in Illinois for a pair of 1978 murders they didn’t commit. Jimerson was cleared in 1995 after a decade on death row and Williams served more than 17 years on death row before he was freed in 1996.

Robert Miller spent nine years on Oklahoma’s death row for a murder and rape he didn’t commit before he was cleared by DNA testing in 1998.

Ron Williamson spent a decade on Oklahoma’s death row for a murder he didn’t commit before DNA testing secured by the Innocence Project proved him innocent in 1999. His co-defendant, Dennis Fritz, was sentenced to life and spent 11 years in prison before DNA cleared him as well.

Ronald Jones, an Innocence Project client, served a decade on Illinois death row for a murder and rape he didn’t commit before DNA testing proved his innocence and led to his release in 1999.

Earl Washington, a Virginia man with limited mental capacity, was sentenced to death after he allegedly confessed to committing a 1982 murder he didn’t commit. He served a decade on death row, once coming within nine days of execution before receiving a stay. He would serve a total of 17 years behind bars before DNA testing obtained by the Innocence Project cleared him in 2000.

Frank Lee Smith died of cancer on Florida’s death row after serving 14 years for a murder and rape he didn’t commit. He was cleared by DNA testing obtained by the Innocence Project 11 months after his death.

Charles Irvin Fain served more than 17 years on death row in Idaho for a murder and rape he didn’t commit before DNA testing proved his innocence in 2001.

Ray Krone served a decade in Arizona prison – including four years on death row – for a murder and rape he didn’t commit before DNA testing proved his innocence in 2002.

Nicholas Yarris served more than 21 years on Pennsylvania’s death row before DNA testing proved his innocence and led to his release in 2003.

Ryan Matthews served five years on Louisiana’s death row for a murder he didn’t commit before he was exonerated by DNA testing in 2004. His co-defendant, Travis Hayes, was sentenced to life in prison and served eight years before he was cleared in 2007.

Curtis McCarty served 21 years in Oklahoma prison – including nearly 18 years on death row – for a murder he didn’t commit before DNA tests secured by the Innocence Project led to his exoneration in 2007. He was convicted twice and sentenced to death three times based on forensic misconduct.

Kennedy Brewer, an Innocence Project client, served 15 years behind bars – including seven years on death row – for a murder and sexual assault he didn’t commit before DNA testing from 2001 finally led to his exoneration in 2008.

Michael Blair served 13 years on death row for a murder he didn’t commit before DNA testing obtained by his lawyers at the Innocence Project proved his innocence and led to his exoneration in 2008.

These DNA exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed. For more than 15 years, the Innocence Project has worked to pinpoint these trends.

Eyewitness Misidentification Testimony was a factor in 75 percent of post-conviction DNA exoneration cases in the U.S., making it the leading cause of these wrongful convictions. At least 40 percent of these eyewitness identifications involved a cross racial identification (race data is currently only available on the victim, not for non-victim eyewitnesses). Studies have shown that people are less able to recognize faces of a different race than their own. These suggested reforms are embraced by leading criminal justice organizations and have been adopted in the states of New Jersey and North Carolina, large cities like Minneapolis and Seattle, and many smaller jurisdictions. Read more.

Unvalidated or Improper Forensic Science played a role in approximately 50 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques – such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons – have never been subjected to rigorous scientific evaluation. Meanwhile, forensics techniques that have been properly validated – such as serology, commonly known as blood typing – are sometimes improperly conducted or inaccurately conveyed in trial testimony. In other wrongful conviction cases, forensic scientists have engaged in misconduct. Read more.

False confessions and incriminating statements lead to wrongful convictions in approximately 25 percent of cases. In 35 percent of false confession or admission cases, the defendant was 18 years old or younger and/or developmentally disabled. Twenty-two of the first 265 DNA exonerees pled guilty to crimes they did not commit. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings. More than 500 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases. Read more.

Snitches contributed to wrongful convictions in 19 percent of cases. Whenever snitch testimony is used, the Innocence Project recommends that the judge instruct the jury that most snitch testimony is unreliable as it may be offered in return for deals, special treatment, or the dropping of charges. Prosecutors should also reveal any incentive the snitch might receive, and all communication between prosecutors and snitches should be recorded. Fifteen percent of wrongful convictions that were later overturned by DNA testing were caused in part by snitch testimony.

When the death penalty was permitted to go forward in 1976, many distinguished legal scholars warned that the task of creating an objectively fair system for deciding which criminals deserved to die and which should be allowed to live was impossible. A majority of those on the Supreme Court that approved the experiment ultimately concluded the attempt to fix the death penalty had failed.

Thirty-five years later a strong body of empirical evidence confirms that race, geography, money, politics, and other arbitrary factors exert a powerful influence on determining who is sentenced to death. This is the conclusion not only of experts, but increasingly that of the general public as well. Unfairness ranks near the top of the American publicʼs concerns about
the death penalty.

As the use of the death penalty has declined, the rationale for its continuation has disappeared. With defendants already facing life without parole, no one is likely to be deterred by an added punishment that is rarely imposed and even more rarely carried out many years later, and that is dependent on so many unpredictable factors. Nor does the wish for retribution justify a death penalty that is applied so sporadically. The reality is that those in society generally, and those families of murder victims in particular, who look to an execution to counter a terrible homicide will very likely be disappointed.”

Thus, the report concludes, receiving the death penalty is still like being struck by lightning.

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