One cost this country pays for the death penalty is that its courts are constantly compelled to corrupt the law in order to uphold death sentences. That corruption soils the character of the United States as a nation dedicated to equal justice under law.
This is not the only price we pay for being one of the very few democracies in the world that retains capital punishment in the 21st century. But it is a significant item on the cost side of the cost-benefit ledger, something that each thinking person ought to balance in deciding whether he or she supports capital punishment. And it warrants discussion because this cost is little understood. I have spent much of my time for the past 40 years representing death-sentenced inmates in appeals at every level of the state and federal judicial systems, and I am only lately coming to realize how large a tax the death penalty imposes on the quality of justice in those systems.
The western face of the U.S. Supreme Court building bears the motto "Equal Justice Under Law." Court opinions frequently quote this motto to summarize the basic commitments of our constitutional democracy. The death penalty erodes all three commitments -- to equality, to justice, and to the rule of law.
In the first place, death sentences are handed out in a way that belies our pretensions of evenhandedness, fairness, and legal regularity. Whether a person convicted of murder will end up sentenced to death or to prison depends upon a series of discretionary decisions by the prosecutor in each case -- what crime to charge, whether to engage in plea bargaining (and on what terms), whether to seek a death sentence -- and another discretionary decision by the sentencing judge or jury.
These decisions are individually erratic and collectively haphazard, producing one or two death sentences and a dozen or two dozen lesser sentences out of every group of cases that is factually, legally, and rationally indistinguishable as regards the nature and circumstances of the crime and the character and record of the defendant. For example, there are currently 72 young people in 12 states awaiting execution for murders committed when they were under 18 years old. Yet a Virginia jury sentenced Lee Boyd Malvo, one of the Washington-area snipers, to life, not death, and the overwhelming majority of juveniles who -- like the 72 now on death row -- have committed crimes less egregious than Malvo's are not sentenced to die.
Next, as legal appeals proceed, a mirror-image kind of inequality develops. For every condemned defendant whose death sentence is set aside by a reviewing court on the ground of some trial error or constitutional violation, there are a dozen or more defendants who do not get their death sentences set aside despite indistinguishable trial errors or constitutional violations in their cases. Courts supposedly applying general legal rules turn out decisions that are almost as unpredictable and inexplicable as the decisions of prosecutors and sentencing juries making ad hoc, case-specific judgments.
For example, in 2000 and 2003, the U.S. Supreme Court vacated the death sentences of Terry Williams in Virginia and Kevin Wiggins in Maryland after finding that the lawyers for these men had performed so incompetently at their sentencing trials that Williams and Wiggins were denied the "assistance of counsel" required by the Sixth Amendment. There is no doubt that the lawyers' performances were abysmal in both of these cases. But every practiced capital-defense attorney or prosecutor I know was amazed by the Court's Williams and Wiggins decisions, because all of us have seen case after case in which defendants received worse representation than these two men did and yet had their Sixth Amendment claims rejected by the lower courts and their requests for review summarily denied by the Supreme Court.
Death sentences are meted out not only erratically but also discriminatorily, on the basis of race. Exhaustive studies done in connection with the McCleskey v. Kemp case that other lawyers and I took to the Supreme Court in 1986 demonstrated this deeply troubling pattern. In Georgia murder prosecutions between 1973 and 1979, 22 percent of black defendants who killed white victims were sentenced to death; 8 percent of white defendants who killed white victims were sentenced to death; 1 percent of black defendants who killed black victims were sentenced to death; and 3 percent of white defendants who killed black victims were sentenced to death. (Only 64 of the 2,500 homicide cases studied involved killings of blacks by whites, so the 3-percent figure represents two death sentences over a six-year period. The reason why bias against black defendants was not even more apparent was that most black defendants convicted of murder have killed black victims; almost no convictions are found of white defendants who have killed black victims; and virtually no defendant convicted of killing a black victim gets the death penalty.)
No factor other than race explained these patterns. The studies analyzed hundreds of factors relating to the crime, to the victim, and to the defendant in each case. The analysis with the greatest explanatory power showed that after controlling for nonracial factors, murderers of white victims received a death sentence 4.3 times more frequently than murderers of black victims. The race of the victim was as good a predictor of a capital sentence as the aggravating factors spelled out for jury consideration in the Georgia statute, like whether the defendant had a prior murder conviction or was the primary actor in the present murder. (Only 5 percent of Georgia killings resulted in a death sentence, yet, when more than 230 nonracial variables were controlled for, the death-sentencing rate was 6 percent higher in white-victim cases than in black-victim cases. In other words, a murderer incurred less risk of death by committing the murder in the first place than by selecting a white victim instead of a black one.) Newer studies in other states have consistently shown the same racially discriminatory pattern of capital sentencing.
More appalling than these statistics was the Supreme Court's reaction to them. In an opinion by Justice Lewis Powell Jr., a 5-to-4 majority conceded that the data before the Court "indicated a risk that racial considerations enter into capital sentencing determinations," but held that the courts have no constitutional power to remedy this situation. Justice Powell's McCleskey opinion offered a series of elaborate reasons for its conclusions, but the bottom line was that if the courts undertook to review claims of race discrimination in capital sentencing, they would also be obliged to review claims of discrimination by other subgroups disfavored in the capital-sentencing lottery, and the death penalty would be rendered unenforceable as a practical matter.
Four years later, after his retirement from the Court, Powell told his biographer that he'd changed his mind and would have changed his vote in McCleskey if he could. He had become convinced that capital punishment cannot be administered with the fairness and consistency necessary to satisfy the Constitution. Nevertheless, the Supreme Court has refused to reconsider its 1987 ruling.
To be sure, the Court does sometimes reverse itself on death-penalty issues. But these "corrections" expose additional problems with the penalty. Consider the 2002 decision in Ring v. Arizona.
The question in Ring was whether a convicted defendant could be made eligible for a death sentence on the basis of facts found by a judge rather than a jury. The question arose because in Arizona (and six other states), after a jury convicted a defendant of first-degree murder, additional aggravating circumstances had to be found in order to support a death sentence, and these findings were made by the trial judge (or a three-judge panel), not by the jury. In 1990, this Arizona procedure had been upheld by the Supreme Court against the argument that it violated the right to jury trial guaranteed by the Constitution. But in 2000, the Court had held, in a hate-crime case, that the constitutional right to jury trial was violated by a procedure that allowed a defendant convicted of a noncapital crime to be sentenced to a longer term of imprisonment than the maximum prescribed for that crime if a judge, without a jury, found that the crime was aggravated by being racially motivated.
In the Ring case, lawyers for a condemned inmate argued that Arizona's capital-sentencing procedure involved the same constitutional defect that the Court had found in the 2000 hate-crime case. The Supreme Court agreed, overruled its dozen-year-old decision upholding the Arizona procedure, and declared the procedure unconstitutional.
The same arguments that were made to the Court and accepted by it in the 2002 Ring case and in the 2000 hate-crime case had been made to the Court and rejected by it in its 1990 Arizona decision and also in a 1984 Florida case challenging an analogous judge-sentencing procedure. Those arguments were based on what the Framers of the Constitution, in light of preceding centuries of English history, must have meant the constitutional right of jury trial to include. Nothing relevant or rational made those arguments any more convincing legally in 2000 or 2002 than in 1984 or 1990. The Supreme Court simply woke up to the arguments 10 years too late to save the 22 men who were put to death in Arizona between 1990 and 2002 under a procedure that the Court belatedly discovered was unconstitutional. And constitutional-law experts predict that, in a decision expected in the next few weeks, the Supreme Court will declare that the Ring decision is not "retroactive" and therefore does not invalidate the death sentences of 87 additional persons who are now on Arizona's death row under the sentencing procedure invalidated in Ring. The 87 could then be put to death even after the Ring decision -- though their death sentences were imposed by a process Ring held incompatible with the Constitution.
All this may well cause you to question the evenhandedness and fairness of the death penalty as it is used in this country today. But what about its legality? Aren't the practices and consequences I've described strictly lawful, however dubious from the standpoints of equality and justice? That depends on whether you believe that it is legally proper for courts to twist the ordinary rules of law in order to uphold death sentences and authorize executions that the rules would not tolerate without twisting.
Remember the 1987 McCleskey case, in which the Supreme Court was faced with the question of whether courts should review claims of race discrimination in capital sentencing based on solid statistical evidence. The Court held that they should not, although it admitted that its precedents required courts to hear claims of race discrimination in jury selection and in governmental- and private-employment practices, based on the same kind of statistical evidence. The Court's reason for this result came close to a frank admission that the administration of capital punishment would grind to a halt if courts took seriously the challenge of ensuring that death sentences are not the products of racial bias.
Similarly, in a 1986 case, the Supreme Court was confronted with evidence that the universal practice of "death-qualifying" capital juries -- that is, of excluding from jury service any juror who is conscientiously unable to consider voting for a death sentence -- had the effect of making capital juries more prone to convict and less willing to give defendants the benefit of the doubt on the issue of guilt or innocence. The Court held that even if this was so, capital defendants are not entitled to have the issue of their guilt decided by a jury that is neutral and impartial according to the standard of the ordinary juries that try all other kinds of criminal cases. It reasoned that because the state is entitled to punish convicted murderers with death, it must be entitled to select juries that will impose a death sentence -- and if the only way to get such juries is to compromise ordinary standards of impartiality, so be it. The Court rejected the suggestion that the state's interest in obtaining death sentences could be served by impaneling a death-qualified jury to determine sentence, after a conviction, either by forming a new jury or by substituting alternate jurors from the guilt-phase trial for any jurors who could not consider voting for death. The Court said that states employing the death penalty can reasonably conclude that such procedures are too burdensome or inefficient.
The lesson of these Supreme Court decisions is unmistakable. If ordinary judicial scrutiny of apparent patterns of race discrimination cannot be conducted without hampering the states' efficient pursuit of death sentences, judicial scrutiny will be forsworn. If ordinary standards of fairness for criminal-trial juries cannot be maintained without hampering the states' efficient pursuit of death sentences, those standards will be forsworn and juries uncommonly prone to convict will be permitted to do so. When the ordinary fabric of constitutional law needs to be twisted to make the death penalty enforceable, the necessary twists will be made.
This lesson helps us understand the Ring case. Why did the Supreme Court suddenly discover in 2000 and 2002 a centuries-old right to jury trial that had escaped its notice in 1984 and 1990? Because in 1984 and 1990, that right was being claimed on behalf of death-sentenced inmates, and its recognition would have stopped their executions. In this context, the Court brushed aside the claim as unworthy of serious consideration. In 2000, the same claim was made on behalf of a convicted noncapital felon challenging an increase in the length of his prison sentence based on a judge-made finding that the crime was motivated by racial bigotry. Here the Court gave the claim serious consideration and upheld it. Then, in 2002, the logical impossibility of distinguishing a death sentence that depended solely upon judge-made findings of fact from a prison sentence that depended solely upon judge-made findings of fact shamed the Court into recognizing that its earlier decisions had been -- quite literally -- dead wrong.
So, were the 22 prisoners who were executed in Arizona alone under the Court's dead-wrong decision upholding the Arizona capital-sentencing scheme in 1990 lawfully put to death? Or the 87 prisoners whom the Court has held can still be executed after it admitted that its 1990 decision was wrong? Not, I believe, if you take lawful to mean what it surely pretends to mean as engraved on the Supreme Court's facade in the phrase "Equal Justice Under Law."