The Constitution Project, Mandatory Justice: Eighteen Reforms to the Death Penalty

Mandatory Justice: Eighteen Reforms to the Death Penalty

The Constitution Project

The Constitution Project, housed at Georgetown University in Washington, DC, seeks to develop bipartisan solutions to contemporary constitutional and governance issues by combining high-level scholarship and public education. In May 2000, the Constitution Project created a death penalty initiative to address the deeply disturbing risk that Americans are being wrongfully convicted of capital crimes or wrongfully sentenced to death. The Constitution Project convened the thirty members of the death penalty initiative's blue-ribbon committee to examine our country's present course, and to recommend ways to ensure that fundamental fairness is guaranteed for all.
The committee's members are supporters and opponents of the death penalty, Democrats and Republicans, conservatives and liberals. They are former judges, prosecutors, and other public officials, as well as victim advocates, defense lawyers, journalists, scholars, and other concerned Americans. They have extensive and varied experience in the criminal justice system. They may disagree on much, including whether abolition of the death penalty is warranted, but they are united in their profound concern that, in recent years, and around the country, procedural safeguards and other assurances of fundamental fairness in the administration of capital punishment have been revealed to be deeply flawed.
The members of the committee have brought a wide variety of philosophies, experiences, and perspectives to their work. They have deliberated long and hard about the recommendations presented here, seeking consensus because they recognized the need to overcome past divisions. For too long, society has cast the death penalty debate as one between “liberals” and “conservatives,” those who are “soft on crime” and those who “care about victims of crime,” or “abolitionists” and hard-line death penalty proponents. If we ever could, we can no longer afford to carry on the debate in this manner. Much is riding on our country's ability to put these stereotypes aside.
The committee's mission statement says that individuals who commit violent crimes deserve swift and certain punishment. Some of the members of the committee believe that the range of punishment may include death; others do not. But they all agree that no one should be denied basic constitutional protections, including a competent lawyer, a fair trial, and full judicial review of the conviction and sentence. The denial of such protections heightens the danger of wrongful conviction and sentence.
In the months since the initiative was created, there has been a dramatic increase in the number of those released from death row because they have been shown—often at nearly the last minute—to be innocent. This is deeply disturbing to all of the committee's members, as it should be to all Americans. Committee members continue to be greatly troubled, as well, by executions of persons with mental retardation and those who committed crimes as juveniles. While some states are considering reforms to narrow the application of capital punishment, especially with regard to persons with mental retardation, others are enacting new laws that would actually increase its application. …
One major goal of these recommendations is to create additional safeguards against the endemic tendency of decision-makers in the criminal justice system to “pass the buck.” The system is far too lax in catching errors and injustices in part because many of those who might catch these errors and injustices do not fully understand their own duty to ensure that a death sentence is the appropriate punishment. Several of these recommendations are addressed to those who occupy critical roles in the capital punishment system, including the defense attorney, the prosecutor, the jury, the trial judge, and the reviewing courts. They emphasize that each, individually, has the responsibility to ensure, to the best of his or her ability, that justice is done.
Some federal and state legislatures are enacting new restrictions that include short filing deadlines, limits on evidentiary hearings that may preclude defendants from presenting new evidence, and other procedural hurdles that prevent prompt, if any, consideration of the merits of cases. It is especially difficult for inmates to obtain judicial consideration of new facts that may support a claim of innocence. Access to the courts to protect individual rights is a fundamental tenet of our democracy, and all Americans should be concerned by its erosion. …
Many of the committee's members have served as judges, prosecutors, and defense lawyers. They, along with all of the members, greatly admire the work of the hard-working, conscientious participants in the criminal justice system who strive to do their best, often under the most difficult of circumstances. The criminal justice system often suffers from misallocated, misdirected, and, in some instances, inadequate resources, and, as a result, those working within the system may have to struggle to do their jobs in a thorough and professional manner. This also means that those the system is designed to protect instead frequently feel victimized by it.
The committee members' own experiences have led them to conclude that the current system serves none of us adequately—not victims, not defendants, and nor society. The system is replete with delays and mistakes that prevent victims from experiencing finality and that cost unjustly accused or convicted individuals years of their lives. Committee members stress that their concern is not only for those who are wrongfully convicted. When we convict the innocent, we also fail to bring to justice those who are actually guilty, thus creating a continued threat to public safety and an enduring tragedy for the family of the murder victim. Members strongly share concerns about crime victims' needs for finality and closure. At the same rime, society cannot ignore a concern for the truth and for the Constitution.
No matter what their individual views about the death penalty, the committee's members do not in these recommendations seek its abolition. They understand that implementing these reforms will be difficult, but they believe such basic changes are essential to a death penalty system that has a claim on fairness and justice. The committee's members have broad experience in all aspects of this nation's justice system. It is this experience that leads them to state with confidence that the state and federal legislatures or courts, bar associations, and other appropriate authorities must take these recommendations seriously and consider them expeditiously. At long last, these authorities must acknowledge the need to provide sufficient resources for the capital punishment system. They can and must recognize that access to the courts is a fundamental right that protects the liberty of all of us, not just those who are accused or convicted of heinous crimes.
The recommendations included here were arrived at through a variety of meetings, conference and other telephone calls, and electronic and other communications. They do not, as some state commissions do, examine specific cases. Rather, they are a broad nationwide view, and an important compilation of the accumulated experience with and wisdom of the members of the committee about the current flawed death penalty system. These recommendations should not, however, be considered the final word. Capital punishment is an extraordinarily complex area of the law, and our nation's understanding of it and its problems has evolved with the accumulation of experience. The committee issues these recommendations because its members are confident of their wisdom and because a crisis in the death penalty system exists now and must be addressed as expeditiously as possible. Future recommendations may be expected as additional experience, study, and reflection bring to further consensus.
Committee members present these recommendations for reforms because they are urgently needed. In the name of justice, fairness, efficiency, and common sense, the recommendations should command the support of all Americans, no matter what their views about capital punishment.
Virginia E. Sloan
Executive Director
The Constitution Project

Summary of Recommendations
I. Effective Counsel

Every jurisdiction that imposes capital punishment should create an independent authority to screen, appoint, train, and supervise lawyers to represent defendants charged with a capital crime. It should set minimum standards for these lawyers performance. An existing public defender system may comply if it implements the proper standards and procedures.
Capital defense lawyers should be adequately compensated, and the defense should be provided with adequate funding for experts and investigators.
The current Supreme Court standard for effective assistance of counsel (Strickland v. Washington) is poorly suited to capital cases. It should be replaced in such cases by a standard requiring professional competence in death penalty representation.

II. Prohibiting Execution in Cases Involving Questionable Categories of Defendants and Homicides

Persons with mental retardation should not be eligible for the death penalty.
Persons under the age of eighteen at the time the crime was committed should not be eligible for the death penalty.
Persons convicted of felony murder, and who did not kill, intend to kill, or intend that a killing take place, should not be eligible for the death penalty~

III. Expanding and Explaining Life without Parole (LWOP)

Life without the possibility of parole should be a sentencing option in all death penalty cases in every jurisdiction that imposes capital punishment.
The judge should inform the jury in a capital sentencing proceeding about all statutorily authorized sentencing options, including the true length of a sentence of life without parole. This is commonly known as “truth in sentencing.”

IV. Safeguarding Racial Fairness
All jurisdictions that impose the death penalty should create mechanisms to help ensure that the death penalty is not imposed in a racially discriminatory manner.

V. Proportionality Review

Every state should adopt procedures for ensuring that death sentences are meted out in a proportionate manner to make sure that the death penalty is being administered in a rational, non-arbitrary, and even-handed fashion, to provide a check on broad prosecutorial discretion, and to prevent discrimination from playing a role in the capital decision-making process.

VI. Protection against Wrongful Conviction and Sentence

DNA evidence should be preserved and it should be tested and introduced in cases where it may help to establish that an execution would be unjust.
All jurisdictions that impose capital punishment should ensure adequate mechanisms for introducing newly discovered evidence that would more likely than not produce a different outcome at trial or that would undermine confidence that the sentence is reliable, even though the defense would otherwise be prevented from introducing the evidence because of procedural barriers.

VII. Duty of Judge and Role of Jury

If a jury imposes a life sentence, the judge in the case should not be allowed to “override” the jury's recommendation and replace it with a sentence of death.
The judge in a death penalty trial should instruct the jury at sentencing that if any juror has a lingering doubt about the defendant's guilt, that doubt may be considered as a “mitigating” circumstance that weighs against a death sentence.
The judge in a death penalty trial must ensure that each juror understands his or her individual obligation to consider mitigating factors in deciding whether a death sentence is appropriate under the circumstances.

VIII. Role of Prosecutors

Prosecutors should provide “open-file discovery” to the defense in death penalty cases. Prosecutors' offices in jurisdictions with the death penalty must develop effective systems for gathering all relevant information from law enforcement and investigative agencies. Even if a jurisdiction does not adopt open-file discovery, it is especially critical in capital cases that the defense be given all favorable evidence (Brady material), and that the jurisdiction create systems to gather and review all potentially favorable information from law enforcement and investigative agencies.
Prosecutors should establish internal guidelines on seeking the death penalty in cases that are built exclusively on types of evidence (stranger eyewitness identifications and statements of informants and co-defendants) particularly subject to human error.
Prosecutors should engage in a period of reflection and consultation before any decision to seek the death penalty is made or announced.

Members of the Constitution Project's Death Penalty Initiative*
Co-Chairs

The Honorable Charles F. Baird, former Judge, Court of Criminal Appeals of the State of Texas
The Honorable Gerald Kogan, former Chief Justice, Supreme Court of the State of Florida; former Chief Prosecutor, Homicide and Capital Crimes Division, Dade County, Florida
Beth A. Wilkinson, Esq., Prosecutor, Oklahoma City bombing case

* The thirty members of the Constitution Project’s Death Penalty Initiative co-signed this document. Their names are available at http://www.constitutionproject.org/dpi/index.html.