CAPITAL DEFENSE

Intellectual Disability, The Death Penalty, and Jurors

Emily V. Shaw and Scurich, Nicholas and Faigman, David L., Intellectual Disability, The Death Penalty, and Jurors (June 5, 2018). Jurimetrics, Vol. 58, 2018, Forthcoming; UC Hastings Research Paper No. 286; UC Irvine School of Law Research Paper No. 2018-45. Available at SSRN: https://ssrn.com/abstract=3191190.

Abstract: In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors’ reason about and make these decisions. This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were consider-ably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled. They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which in-creased perceptions of both the defendant’s blameworthiness and his mental ability. These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual Punishment

Maria Slater, Note, Is Powell Still Valid? The Supreme Court’s Changing Stance on Cruel and Unusual, 104 L. Rev. 547 (2018).

Abstract: In its seminal case Robinson v. California, the Supreme Court struck down a state statute criminalizing narcotics addiction. The Court held this statute, in criminalizing the disease of drug addiction, constituted cruel and unusual punishment prohibited by the Eighth Amendment. Six years later in Powell v. Texas, the Court declined to extend this holding to encompass alcoholism, because alcoholism involves the act of drinking rather than the status of addiction. However, the Court’s modern Eighth Amendment jurisprudence has signaled a shift in its understanding of cruel and unusual punishment. The Court has begun to take into account brain development, and its relationship to culpability, for certain classes of offenders. Neurological findings regarding the brain development involved in chronic alcoholism necessitate a similar shift in the Court’s framework for analyzing the penalization of chronic alcoholism and given the Court’s changing stance, call into question the constitutionality of Virginia’s habitual drunkard statute. Rather than viewing alcoholism under the act-versus-status dichotomy, the Court’s Eighth Amendment proportionality analysis signals a shift towards understanding addictions such as chronic alcoholism under a non-binary framework that takes into account recent scientific understandings of addiction. Much like the Court’s shift in the juvenile and intellectual disability contexts, a similar shift should occur, this Note posits, in the Court’s proportionality analysis as applied to statutes involving chronic alcoholism. This Note concludes by calling into question the continued constitutionality of Virginia’s habitual drunkard statute under the Court’s changing jurisprudence.

Police, Race, and the Production of Capital Homicides

Fagan, Jeffrey and Geller, Amanda, Police, Race, and the Production of Capital Homicides (July 12, 2018). Columbia Public Law Research Paper No. 14-593. Available at SSRN: https://ssrn.com/abstract=3202470.

Abstract: Racial disparities in capital punishment have been well documented for decades. Over 50 studies have shown that Black defendants more likely than their white counterparts to be charged with capital-eligible crimes, to be convicted and sentenced to death. Racial disparities in charging and sentencing in capital-eligible homicides are the largest for the small number of cases where black defendants murder white victims compared to within-race killings, or where whites murder black or other ethnic minority victims. These patterns are robust to rich controls for non-racial characteristics and state sentencing guidelines. This article backs up the research on racial disparities to an earlier stage of capital case processing: the production of capital-eligible cases beginning with the identification of potential defendants by the police. It seeks to trace these sentencing disparities to examining earlier stages in the processing of homicides. Using data from the FBI’s Supplementary Homicide Reports, we examine every homicide reported between 1976 and 2009, and find that homicides with white victims are significantly more likely to be “cleared” by the arrest of a suspect than are homicides with minority victims. We estimate a series of hierarchical regressions to show that a substantial portion of this disparity is explained by social and demographic characteristics of the county in which homicides take place. Most notably, counties with large concentrations of minority residents have lower clearance rates than do predominantly white counties; however, county characteristics do not fully explain the observed race-of-victim disparities. Our findings raise equal protection concerns, paving the way for further research into the production of capital homicides and the administration of the death penalty.

Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective

Anthony Walsh & Virginia L. Hatch, Capital Punishment, Retribution, and Emotion: An Evolutionary Perspective, 21 New Crim. L. Rev. 267 (2018).

Abstract: This article explores the emotions behind the retributive urge as it applies to the death penalty in the United States. It is argued that the retributive urge is so strong because it engages the most primitive of our emotions, and that these emotions served adaptive purposes over the course of human evolution. Many scholars offended by the retributive instinct insist that we must put emotion aside when discussing the death penalty, even as jurors in death penalty cases, and rely on our rationality. To ask this is to ask what almost all normal people find impossible because the emotions evoked in capital cases (disgust, anger, sympathy for the victim, desire for justice) evolved for the purpose of maintaining group stability and survival by punishing freeloaders. Modern neuroscience has destroyed the traditional notion that rationality and emotion are antagonists. Brain imaging techniques show that they are fully integrated in our brain wiring, and both are engaged in decision making, but when reason and emotion yield conflicting judgments, the latter almost always triumphs. The evolutionary rationales for why emotions conducive to punitive responses for wrongdoers exist are examined.

Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing

Berryessa, Colleen M., Jury-Eligible Public Attitudes Toward Biological Risk Factors for the Development of Criminal Behavior and Implications for Capital Sentencing, 44 Crim. Just. & Behav. (2017).

Abstract: This experiment, utilizing a sample of death-qualified jury-eligible public, examines if and how evidence on biological risk factors for criminality might affect views on the death penalty in four contexts: death penalty support, mitigation, future dangerousness, and cruel and unusual punishment. Results suggest that the presentation of evidence on biological risk factors generally, regardless of the specific risk factor, may not affect views on whether or not the use of the death penalty is appropriate. The presentation of biological risk factor evidence does not appear to be viewed by as strongly mitigating, but biological risk factors generally do have a small, yet statistically significant, impact on perceptions of moral responsibility. The presentation of evidence on certain biological risk factors also may aggravate views of future dangerousness, which could potentially increase the likelihood that the death penalty is supported. Implications of these attitudes for the criminal justice system are discussed.

“Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty

Perlin, Michael. (2015). “Power and Greed and the Corruptible Seed”: Mental Disability, Prosecutorial Misconduct, and the Death Penalty. Journal of the American Academy of Psychiatry and the Law. 43. 266-272. 10.2139/ssrn.2522444.

Abstract: The Supreme Court’s death penalty jurisprudence is based in large part on the assumption that jurors can be counted on to apply the law in this area conscientiously and fairly. All our criminal procedure jurisprudence is based in large part on the assumption that prosecutors and judges will act fairly. I believe that these assumptions are based on nothing more than wishful thinking, and that the record of death penalty litigation in the thirty-eight years since the “modern” penalty was approved in Gregg v. Georgia gives the lie to them. This article focuses solely on the role of prosecutors in this process, and the extent to which prosecutorial misconduct has contaminated the entire death penalty process, especially in cases involving defendants with mental disabilities. This is an issue known well to all those who represent such defendants in death penalty cases but, again, there is startlingly little literature on the topic. It is misconduct that is largely hidden and ignored. The article begins with some brief background on issues that relate to the treatment of persons with mental disabilities in the criminal justice system in general. It then discusses prosecutorial misconduct and the outcomes of that misconduct, with special attention to a cohort of appellate decisions in unheralded and rarely (if ever) discussed published cases that, in almost every instance, sanction such misconduct. Next, it demonstrates how some prosecutors purposely flaunt the canons of ethics in the prosecution of defendants with mental disabilities in death penalty cases, and then will discuss some solutions raised by scholars to (at least, partially) cure this problem, and concludes with some modest suggestions of my own.

The ABA and the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty Cases by Robin M. Maher, Hofstra Law Review (2008)

Abstract: On February 10, 2003, the American Bar Association House of Delegates overwhelmingly approved the revised ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”). In doing so, the ABA renewed the serious concerns it has voiced for decades about the fairness and reliability of the death penalty. All jurisdictions were urged to adopt the ABA Guidelines to ensure that capital trial and death row defendants had access to qualified, competent counsel and the expert assistance and funding that make capital legal representation meaningful. Read the full article.

Getting It Right: Life History in Investigations as the Foundation for a Reliable Mental Health Assessment by Richard G. Dudley, Jr. and Pamela Blume Leonard, Hofstra Law Review (2008)

Abstract: As the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue both emphasize capital defense counsel must select appropriate non-legal team members and provide them with strategic direction. It is simply ineffective assistance for counsel to permit a mental health assessment of the client to occur before having made a reasoned decision about the purpose of the examination and having provided the examiner with the data necessary to reach a professionally competent conclusion respecting the question presented. This process must then be sustained. As the expert requests more data or the team independently unearths facts or records relevant to the expert’s conclusion, the new information must be incorporated effectively into the defense presentation. Only then will defense counsel be equipped to present an effective case in mitigation and defend it against attacks from the prosecution. Read the full article.

“The Importance of Recognizing Trauma Throughout Capital Mitigation Investigations and Presentations” by Kathleen Wayland, Hofstra Law Review (2008)

Abstract: A PhD. in psychology, the author formerly served on the faculty of Duke University Medical Center, where her primary emphasis was on traumatic stress syndromes and the psychological consequences of chronic exposure to interpersonal violence. For the last fifteen years she has been assisting capital defender organizations in integrating mental health themes into mitigation narratives. This article presents the current state of scientific knowledge about trauma, treating the subject from these dual perspectives.

The inevitable existence of trauma among all of those affected by a murder – including the client, his family members, survivors, and witnesses being interviewed about the crime or the client – is a critical barrier that the defense team must recognize as it investigates. On the other hand, the almost equally invariable presence of traumatic factors in the client’s background frequently provides powerful mitigating material, as the Supreme Court has held several times in recent years. The defense team must accordingly gather and use this material effectively. Read the full article.

“The Mystery of Mitigation: What Jurors Need to Make a Reasoned Moral Response in Capital Sentencing” by Russell Stetler, University of Pennsylvania Journal of Law and Social Change (2008)

Abstract: Mitigation—the empathy-evoking evidence that attempts to humanize the accused killer in death penalty cases—remains a mystery some three decades after the United States Supreme Court mandated individualized sentencing in capital cases. Few have seen its power, its transformative capacity to enable jurors to feel human kinship with someone whom they have just convicted of a monstrous crime. It would be rare for an individual juror to sit on more than one case in which mitigating evidence was presented in the penalty phase of a capital trial. Indeed, in twenty years of federal death penalty prosecutions, very few judges have presided over more than one penalty proceeding. Some of the most experienced public defenders specializing in capital cases have presented mitigating evidence only a handful of times over their long careers. Even mitigation specialists—the capital defense team members who give undivided attention to the client’s life-history investigation—have few opportunities to observe penalty proceedings, to watch the entire courtroom drama unfold.

Yet we know that mitigation works. Life verdicts in cases involving horrendous loss of life demonstrate that death sentences are never automatic or inevitable. High-profile examples include the cases of Lee Boyd Malvo, the so-called “Beltway Sniper;” Zacarias Moussaoui, the alleged twentieth hijacker of 9/11; and Terry Nichols, tried twice (in federal and then state court) for the Oklahoma City bombing. More mundane examples occur week after week in courtrooms across the country, as jurors choose life sentences for serial killers, cop killers, child killers, and others guilty of the most reviled and abhorrent crimes. While concerns about wrongful convictions have dramatically altered the public policy debate on capital punishment, mitigation evidence has continued to bring life sentences even in the face of overwhelming evidence of guilt. Mitigation is intangible and highly variable in the weight assigned to it by different individuals. Nonetheless, both courts and capital defense practitioners have over several decades articulated standards for mitigation investigation. This article will explore how those performance standards have developed. Read the full article.

“Cultural Competency in Capital Mitigation” by Scharlette Holdman and Christopher Seeds, Hofstra Law Review (2008)

Abstract: Cultural factors so pervasively influence the interactions of the client with other people – including all of those with whom he comes into contact at significant times in his life (e.g. in educational, medical, and correctional institutions), those surrounding him in the community in which he develops, and, critically, the members of the defense team – that it is imperative for the defense team to have the talents necessary to conduct a mitigation investigation that is culturally competent. The investigation must recognize and surmount an array of barriers, overt and subtle, to obtaining information from people of variegated backgrounds. As the courts have long recognized, in the context of mitigation, culturally competent investigation is more than an admirable and desirable skill. It is a standard of performance. Building on the framework provided by the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue, this article details what capital defense counsel needs to do in order to (a) meet that standard and (b) of equal importance, utilize the fruits of the investigation to construct a persuasive narrative of the client’s life course that emerges authentically from his culture. Counsel must comprehend the world from the client’s viewpoint and be able to present his life story from the inside out. Read the full paper.

“A Former Alabama Appellate Judge’s Perspective on the Mitigation Function in Capital Cases” by William M. Bowen, Jr., Hofstra Law Review (2008)

Abstract: The article, based on the author’s eighteen years of service on the Alabama Court of Criminal Appeals, explicates how the collection and presentation of mitigation evidence in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue enable appellate courts to make reliable decisions in capital cases. Recounting his post-bench experiences in the defense of capital cases, the author also describes the ways in which the effective performance of the capital defense team benefits all actors in the criminal justice system: the more accurately the defendant’s life is presented, the more everyone involved—including prosecutors and family members as well as judges—can have confidence in the soundness with which they have discharged the heavy burdens they all bear. Read the full article.

“Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation” by Craig Haney, Hofstra Law Review (2008)

Abstract: The article builds on converging lines of research in the social sciences that have constructed a framework which conceptualizes the roots of violent behavior as extending beyond the personality or character structure of those people who perform it, connecting it historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which their violence transpires.

The piece explains how to translate these insights into the collection and presentation of mitigation evidence in capital cases. It describes in detail the various factors in a person’s social and physical environment that are demonstrably likely to lead to criminal behavior, and how, in the context of an adversary system, these general findings can be persuasively woven into the mitigation case to be made on behalf of an particular client to an audience whose pre-disposition is to be unreceptive if not outright hostile.

A capital defense team that is performing effectively in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue will engage in a continuous iterative process between the assembly of a psychologically-oriented social history in which key developmental stages and relevant family and social experiences are analyzed together and the construction of a mitigating counter-narrative that incorporates a capital defendant’s social history and immediate life circumstances. If properly conceived and supported this narrative will provide a more satisfying account than the one the prosecution is certain to offer – an account confined to the defendant’s crime, which is presented as entirely the product of his free autonomous choice-making and constitutes both the full measure of the defendant’s life and the primary justification for ending it. Read the full article.

“Competent Capital Representation: The Necessity of Knowing and Heeding What Jurors Tell Us About Mitigation” by John H. Blume, Sheri Lynn Johnson, and Scott E. Sundby, Cornell Law Faculty Publications (2008)

Abstract: Capital defense counsel have a duty at every stage of the case to take advantage of all appropriate opportunities to argue why death is not a suitable punishment for their particular client. But that duty can hardly be discharged effectively if the arguments are made in ignorance of available information concerning how persuasive they are likely to be to their audience.

Heeding that simple proposition we present lessons from the work of the Capital Jury Project, an ongoing empirical research effort built upon extended interviews with people who have actually sat on capital juries. We find that the standards for mitigation investigations contained in the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue are on firm empirical ground, both in their specific aspects and in their overall approach of encouraging counsel to be creative in building a coherent mitigation theory that is advanced consistently throughout the proceedings. We then describe particular defense themes and approaches that Project data show are likely to resonate favorably with jurors as well as the most potent prosecution arguments for death and how they might be most effectively rebutted. We conclude by describing the current research findings on the demographic and attitudinal characteristics of those jurors most likely to vote for life, and offering pointers on how to best ameliorate the scandalous but well-documented reality that many jurors simply do not understand the task they are being called upon to perform. Read the full article.

“The Sentencing Commission and Prosecutorial Discretion: The Role of the Courts in Policing Sentence Bargains” by John Gleeson,  Hofstra Law Review (2008)

This law review articles focuses on a topic is an important defect in the United States Sentencing Guidelines: their attempt to withhold from federal prosecutors the power to enter into sentence bargains pursuant to Rule 11 (c)(1)(C) of the Federal Rules of Criminal Procedure. Read the full article.