End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice

By Brandon L. Garrett

It isn’t enough to celebrate the death penalty’s demise. We must learn from it.

When Henry McCollum was condemned to death in 1984 in rural North Carolina, death sentences were commonplace. In 2014, DNA tests set McCollum free. By then, death sentences were as rare as lethal lightning strikes. To most observers this national trend came as a surprise. What changed? Brandon Garrett hand-collected and analyzed national data, looking for causes and implications of this turnaround. End of Its Rope explains what he found, and why the story of who killed the death penalty, and how, can be the catalyst for criminal justice reform.

No single factor put the death penalty on the road to extinction, Garrett concludes. Death row exonerations fostered rising awareness of errors in death penalty cases, at the same time that a decline in murder rates eroded law-and-order arguments. Defense lawyers radically improved how they litigate death cases when given adequate resources. More troubling, many states replaced the death penalty with what amounts to a virtual death sentence—life without possibility of parole. Today, the death penalty hangs on in a few scattered counties where prosecutors cling to entrenched habits and patterns of racial bias.

The failed death penalty experiment teaches us how inept lawyering, overzealous prosecution, race discrimination, wrongful convictions, and excessive punishments undermine the pursuit of justice. Garrett makes a strong closing case for what a future criminal justice system might look like if these injustices were remedied.

• Language: English
• Publisher: Harvard University Press
• Release date: Sep 25, 2017
• ISBN: 9780674981966

Brandon L. Garrett

Brandon L. Garrett is the L. Neil Williams Professor of Law at Duke University School of Law, where he directs the Wilson Center for Science and Justice. His previous books include Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Too Big to Jail: How Prosecutors Compromise with Corporations, and End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.

Book preview

END OF ITS ROPE

How Killing the Death Penalty Can Revive Criminal Justice

BRANDON L. GARRETT

HARVARD UNIVERSITY PRESS

CAMBRIDGE, MASSACHUSETTS

LONDON, ENGLAND

2017

Copyright © 2017 by Brandon L. Garrett

All rights reserved

Jacket design: Jill Breitbarth

978-0-674-97099-1 (alk. paper)

978-0-674-98196-6 (EPUB)

978-0-674-98197-3 (MOBI)

978-0-674-98195-9 (PDF)

The Library of Congress has cataloged the printed edition as follows:

Names: Garrett, Brandon, author.

Title: End of its rope : how killing the death penalty can revive criminal justice / Brandon L. Garrett.

Description: Cambridge, Massachusetts : Harvard University Press, 2017. | Includes bibliographical references and index.

Identifiers: LCCN 2017011498

Subjects: LCSH: Capital punishment—United States. | Judicial error—United States. | Discrimination in capital punishment—United States. | Life imprisonment—United States. | Defense (Criminal procedure)—United States. | Evidence, Criminal—United States. | Criminals—Rehabilitation—United States.

Classification: LCC KF9227.C2 G37 2017 | DDC 364.660973—dc23

LC record available at https://lccn.loc.gov/2017011498

To Kerry

CONTENTS

1

An Awakening

2

Inevitability of Innocence

3

Mercy vs. Justice

4

The Great American Death Penalty Decline

5

The Defense-Lawyering Effect

6

Murder Insurance

7

The Other Death Penalty

8

The Execution Decline

9

End Game

10

The Triumph of Mercy

Appendix

Notes

Acknowledgments

Index

1  |  AN AWAKENING

We can abolish the death penalty. We must abolish the death penalty. Ten years ago, that declaration would have been laughable, just another liberal fantasy. But no more.

The death penalty in the United States is at the end of its rope. We can abolish it not in a matter of generations, but in a matter of years. And it is imperative that we do so, for its abolition will be a catalyst for reforming our criminal justice system.

In the past decade, death sentences and executions in the United States have declined dramatically, even in those states most eager to legally kill people. No one is quite sure why this is happening—providing an answer is an important goal of this book—but more and more people agree that it is very good news. And it is occurring at a moment when people on the right and left agree that we desperately need to overhaul America’s criminal justice system. Flaws in high-profile death penalty cases are making headlines and shocking the public, and those miscarriages of justice sow doubts about the death penalty, but they can also drive reforms for all types of criminal cases.

The decline and fall of the death penalty will save lives, but more important it provides an opportunity to revive the broken American justice system. I will show how a fair defense can mean the difference between life and death, and I will explore the disturbing implication behind that fact: what about the vast number of non–death penalty cases in which bad lawyers are doing shoddy work and watching their clients go to jail? The death penalty’s demise will allow us to focus on remedying inept lawyering, overzealous prosecution, inadequate mental health treatment, race discrimination, wrongful convictions, and excessive punishments. When the end of the death penalty comes, we can redouble efforts to prevent persistent errors due to false confessions, eyewitness misidentifications, lying informants, and flawed forensic testimony that affect untold numbers of less serious criminal cases. Death penalty cases show how the humanity of a person matters, even for the supposedly worst of the worst murderers. We can emphasize rehabilitation for people who commit crimes, offering mercy over punishment—and to end mass incarceration we must do just that. In this book, I will draw a road map from the demise of the death penalty to the many reforms that are so desperately needed.

CHOOSING LIFE OVER DEATH

John Jose Rogers had just been convicted of capital murder in rural Stafford County, Virginia, in 2006. Now his lawyer was asking the jury to spare his life. While there was no way to make this right, his lawyer said, if you lock this man up in the kind of prison that he will be in for the rest of his life, [then] no one can say to you that that’s not justice. It’s justice tempered with mercy. The jurors deliberated that evening and for most of the next day. Then they announced their verdict: life without the possibility of parole. A Virginia jury had rejected the death penalty.

In the Rogers case, the defense lawyers had used a big firm, New York approach never tried before in a Virginia death penalty case. They investigated their client intensively, working in a five-lawyer team alongside five investigators, searching for information like school report cards or mental health records that might humanize their client. At the four-day sentencing hearing, the team presented twenty-one witnesses and showed how Rogers was the victim of horrifying abuse by his father, who beat and tortured him, making his childhood a virtual experiment in atrocity, in brutality. Perhaps most moving was testimony from Rogers’s younger brother, whom he had tried to shelter from the abuse. Jurors initially deadlocked, but they finally reached unanimity and decided to exercise their power of mercy.¹

This is not just happening in Virginia. Take the trial of James Holmes, who killed twelve moviegoers and wounded scores more in the notorious Aurora, Colorado, mass shooting in 2012. That jury also chose life without parole, as I describe in Chapter 3. His lawyers used sophisticated methods to carefully select the jury. Over the course of more than four months, the judge winnowed a list of 9,000 prospective jurors down to twelve plus alternates. In the end, two jurors remained on the fence, and a single juror would not budge in opposition to a death sentence, citing Holmes’s mental illness.

One of the many shocking facts that come to light when studying the death penalty in the United States is that these cases have rarely evidenced sophisticated or even particularly thorough lawyering. In the 1980s and 1990s, states imposed cut-rate caps on lawyers’ pay, trials were usually short, and courts regularly let death sentences stand even when defense lawyers had fallen asleep in court, showed up drunk, referred to their clients with racial slurs, or admitted they had not prepared for trial. As a direct consequence, states like Virginia became ruthlessly efficient death penalty machines. Virginia has the highest rate of executions of any state and has executed the third-highest number of prisoners in the United States since the 1970s. No one expected the Virginia death penalty to quietly fade away. Yet in that notoriously tough-on-crime state, prosecutors now try to get death sentences far less often than they used to. As of this writing in 2017, there have been no new death sentences imposed since 2011, and five people sit on Virginia’s death row, from a high of over fifty in the 1990s.²

BENDING THE ARC OF JUSTICE

Virginia is a microcosm of what is happening nationwide. After two decades of steady increases, the American death penalty is disappearing, and it has reached the end of its rope. As Figure 1.1 shows, the death penalty experienced a rapid rise but then an inexorable fall. Since the late 1990s, death sentences have declined steadily. This is not limited to high-profile cases or particular states. Nineteen states and Washington, D.C., have abolished the death penalty, but thirty-one states and the federal government still have it. Far fewer of those places actually use the death penalty anymore. This is a national decline reaching every death penalty state—even states like Texas, which is alone responsible for over a third of the almost 1,500 executions carried out in the United States since the late 1970s, and over 1,000 of the just over 8,000 death sentences handed down since the late 1970s. There were just four death sentences in Texas in 2016, down from as many as fifty a year in the 1990s. There were only thirty-one new death sentences in the entire country in 2016, the lowest number in more than three decades. With the death penalty ebbing in states like Virginia and Texas, California now produces the highest number of death sentences. While California has the largest death row in the country, it has not had an execution since 2006.³

This sudden decline in the American death penalty came as a total surprise. The arc of justice was supposed to be long and bend only slowly. None predicted that the death penalty in America would come crashing down. Even less appreciated is how this social trend speaks volumes about the present and future of our criminal justice system.

FIGURE 1.1  Death sentences in the United States, 1973–2016. Sources: Bureau of Justice Statistics, U.S. Dept. of Justice; data collected by author.

After all, our treatment of the worst of the worst murderers has implications for how we treat less serious crimes. During the same time period that death sentences were routinely handed down, prison sentences were lengthened, life without parole was expanded (even to juveniles), and tough on crime was a political mantra.

When I set out to better understand this remarkable turnaround, its causes, and its broader implications, one reason why so few saw it coming became obvious. No one had collected national data on the decline in death sentences. In fact, there was no information at all about which localities and counties stopped sentencing people to death during the key years of the death penalty decline. I decided to take on the project of hand-collecting that information—from prison records, from death penalty appeals, and by contacting death penalty lawyers around the county. I was not sure what I would find. No single explanation for the death penalty decline seemed plausible.

AN INNOCENCE EFFECT?

Two brothers, Leon Brown and Henry McCollum, spent decades on death row in North Carolina before DNA tests freed them in 2014. Commenting on how the very delays that caused the brothers’ cases to linger in the courts for decades saved the lives of the innocent men, U.S. Supreme Court Justice Stephen Breyer asked the other justices to consider whether the American death penalty was still constitutional. Justice Breyer wondered whether death penalty cases were more error prone, or whether it was that only in death penalty cases did anyone actually look carefully at the facts, because of the life-and-death stakes.⁴ In Chapter 2, I will describe why wrongful convictions are persistent and inevitable in death penalty cases.

The reasons are many, but for now consider just this: twenty individuals have so far been exonerated from death row based on DNA evidence, and many more based on other types of evidence. In each of these cases, the incriminating evidence seemed powerful at the time of trial. I obtained the original transcripts of the death penalty trials of convicts later exonerated by DNA testing. Let me underscore that: DNA testing allows us to know for a certainty that these twenty convicted individuals were innocent. What do their trials tell us? Ten of the twenty exonerees who had been sentenced to death had falsely confessed. Four of those who confessed were intellectually disabled persons who we might expect were highly suggestible and vulnerable to police coercion. At another ten trials, testimony came from informants (including jailhouse informants) who we now know lied on the stand. At eight trials, eyewitnesses, sometimes more than one, made erroneous identifications. At fourteen trials, government experts presented flawed forensic evidence (for example, hair and bite-mark comparisons). Even in the highest-profile death penalty cases, the government presented a wide range of powerful evidence that was false.⁵

In addition to the twenty DNA exonerees who had been sentenced to death, over one hundred more have been exonerated from death row based on other types of evidence.⁶ Countless others, including twenty-eight later freed by DNA tests, received lesser sentences at trial or pleaded guilty to crimes they did not commit to avoid risking the death penalty. Every year more people walk off death row based on new evidence of innocence. We will never know how many innocent people have been executed, but there is strong evidence that several have been in recent years.

Still more troubling, these exonerations do not themselves explain the decline in death sentences. Many death penalty lawyers have told me they believe that prosecutors and jurors and judges share growing concerns about wrongful convictions in death penalty cases. That may be true. However, there is no pattern by which states with more exonerations also see greater declines in death sentences. Instead, the states with the most death sentences have the most exonerations. As disturbing as it is that wrongful convictions are an inevitable product of death sentences, exonerations play only a part in America’s turning away from capital punishment.

THE CRIME DECLINE

What other factors could be at work here? In Chapter 4, I will explore two national trends that correspond to the sudden decline in the death penalty. First, murder rates began a remarkable drop across the country in the mid-1990s—the Great American Crime Decline, as law professor Franklin Zimring has called it. The best available data show a stunning decline in murder rates in the early 1990s and, after a spike in 2001 due to the 9 / 11 attacks, a steady decline into the 2000s. Murder rates, like all crime rates, have been falling for years (with an occasional uptick, as in 2015).⁷ We do not know exactly why. This dramatic decline came just before death sentences dropped. Yet many murders occur in states that do not have or do not use the death penalty. Even in death penalty states, many murders are not eligible for the death penalty, which is in theory reserved for the worst of the worst killers. Moreover, when murders increased slightly in the early 2000s, death sentences continued to drop. At the state and county level, I have found a statistical connection between murder rates and death sentencing. The decline in murders clearly played a role in the death penalty decline. The role it played, however, is complex. Texas experienced a sharp drop in death sentences as the number of murders fell, but murders fell even faster in California, where death sentencing remained high. Moreover, at the county level, the connection between murders and death sentences shows a troubling pattern: it is the counties with more white victims of murder that impose more death sentences.

Two insights are irrefutable. First, the murder decline certainly shows in stark terms that we do not need the death penalty to reduce murders. Second, perhaps as a result of the decline in murders and crime, death sentences as well as public support for the death penalty have continued to decline. With crime dropping and fewer executions and death sentences, people may increasingly forget why they were ever so insistent that some murderers be sentenced to death. This too has profound implications for reducing punishments more generally in America.

LIFE WITHOUT PAROLE

Perhaps the death penalty declined because lawmakers changed the law. Many death penalty lawyers told me that introducing life without parole (LWOP) as an option must have changed the calculus for jurors and for prosecutors. People wanted to be assured that life really meant a life sentence. Jurors may have sentenced people to death fearing that with a life sentence, there was a chance that the murderer would walk the streets again someday. Indeed, some death penalty abolitionists have pushed the idea of replacing the death penalty with LWOP. Before 1980 few states had LWOP, but a wave of states adopted it during the same tough on crime era when the death penalty was rising in use.

In Chapter 4, I reject LWOP as a primary explanation; it only weakly corresponds with any decline in state death sentences. For example, in 2005 Texas was the last death penalty state to introduce LWOP—last, in part, because many prosecutors worried that it would make juries less likely to impose the death penalty. Yet when LWOP was adopted, the death penalty was already on the decline in Texas, and that did not change. Nor was there a change in other states. Oklahoma, for example, adopted LWOP in 1988 but then saw a sharp rise in death sentences.⁸

Meanwhile, as I describe in Chapter 7, something far more troubling has happened as LWOP has taken hold across the country: life rows have mushroomed in size, dwarfing the population of death rows even at their height. Texas now has almost 800 people serving LWOP and 9,000 more serving life with parole, most of whom will in practice never receive parole (meaning they are serving what I refer to as virtual life sentences).⁹ We have replaced the death penalty with a virtual death penalty whereby hundreds of thousands of people are assured to die in prison. There is a hidden tragedy in this trend—namely, that the attention given to discovering miscarriages of justice drops off precipitously with LWOP. Here, then, is one urgently needed reform: the death penalty, LWOP, and virtual life must all be replaced with a system in which rehabilitation in the outside world is always a possibility.

IT TAKES A TEAM

Another possibility is that the underappreciated work of defense lawyers has made it harder for prosecutors to win death sentences. On the ground, in the states that provide minimally adequate resources, defense lawyers have done more with less and radically improved how they litigate death cases. A stark example is Virginia. The number of capital sentences in Virginia first began to drop right after the legislature created four regional Capital Defender offices. The offices have staff specially qualified to investigate and litigate death penalty cases. In Chapter 5, I describe what I learned by reading all the Virginia death penalty trials from the past decade. The offices adopted that big firm, New York approach, and they started to win case after case, usually by avoiding a trial, but also by winning most trials when they occurred. Over the years, the Supreme Court has increasingly emphasized the importance of adequate defense counsel, but for decades the courts routinely allowed people to be executed despite egregiously bad lawyers—even lawyers who fell asleep during a capital trial.¹⁰ Other states, like Florida, have done little to provide adequate resources for capital defense, and those states have not experienced such sharp declines in death sentences. The death penalty persists in the places that deny the defense the ability to put up a fair fight.

One can only wonder about all of the non–death penalty cases in which hapless lawyers for poor defendants remain totally outgunned. Moreover, death penalty defense teams can cost less than the private lawyers that judges appoint. The teams heavily rely on nonlawyers, particularly investigators skilled in locating social services records, medical records, and school records. They can uncover sensitive information about family sexual abuse, mental health problems, brain injuries, and alcohol and substance abuse. It takes a team to compile someone’s entire life story. Death penalty cases highlight how social workers can humanize a person in a way lawyers cannot when working alone. There is an implication here for our entire criminal justice system: when defendants have the resources to tell their story, they can show why they do not deserve harsh punishment.

TIGHTENING THE DEATH BELT

If all politics is local, as Tip O’Neill once famously said, criminal justice is only more so. To really understand why and how the death penalty is declining, one has to look within states at the individual counties where death sentences are still imposed. I explore this shifting geography in Chapter 6, sharing findings that stunned me. The decline has not occurred only at the state level; very few counties still have death sentences. And it is easy to predict which counties do not. The smaller, poorer counties no longer seek the death penalty.

What remains of the American death penalty is concentrated in a few dozen scattered counties, typically larger ones, with an entrenched pattern of seeking the death penalty. These are also counties that tend to have large black populations. Overzealous prosecutors in large counties obtain death sentences that add up to disturbing patterns of racial bias: such patterns have defined the local geography of the death penalty for decades. The handful of counties that engage in death sentencing do respond to murder rates, but they sentence more people to death if they experience more murders with white victims. A form of muscle memory dominates death sentencing: counties that sentence people to death are far more likely to keep doing so. The flip side is that once counties stop death sentencing, they are also likely to remain free of death sentences. These deepening trends, as fewer counties impose death sentences, seem likely to stay fixed in place.

The few counties that still sentence people to death are national outliers more than ever before. Only sixteen counties in the entire country sentenced on average more than one person to death a year from 2010 to 2015. These included counties like Caddo Parish, in northwest Louisiana, where the prosecutor emphatically says they should kill more people. Also included is Los Angeles County, California, which leads the country in death sentences, followed by Harris County, Texas. As a judge once put it, Texas is called the Death Belt. Harris County is the buckle.¹¹ Even the leading death counties, though, have seen sharp declines in sentences in recent years. In 2016, only twenty-seven counties sentenced people to death, and only one, Los Angeles County, sentenced more than one person to death. Should a handful of counties keep an entire state’s execution machinery going?

More generally, mass incarceration in this country results from decisions by officials to impose long prison terms rather than pursue shorter terms or rehabilitation. The dispersed geography of the death penalty provides a lesson: we should not let a few counties set extreme and biased punishments that we all pay for in the end. Fair criminal justice cannot remain entirely local.

EXECUTIONS

Joseph Wood gulped like a fish on land while his lawyers argued on the phone with the Arizona attorney general. They were asking the judge to call off a botched execution. After two hours and thirteen doses of drugs that the state was supposed to give just once, Wood died and the judge ended the call.¹² Executions remain in total disarray as states botch executions using untested drugs bought from shady sources and employing shoddy, secretive techniques. Indeed, executions have declined even faster than death sentences. In 2016, states carried out only twenty executions. State moratoria on executions, due to the inherent lack of a humane way to conduct executions, explain this only in part. As I describe in Chapter 8, executions are even more geographically arbitrary than death sentences; just a handful of counties in the entire country carry them out. Furthermore, executions are even more racially skewed than death sentences. Only a small fraction of the over 8,000 death sentences imposed since the 1970s have resulted in executions; many have been reversed on appeal or commuted to life sentences. Many prisoners languish on death row indefinitely. These days the chances of dying of natural causes or suicide on death row are greater than the chances of being executed.

A DIFFERENT DEATH

America’s death penalty has been turned on its head, and I explore the end game for the death penalty in Chapter 9. Most recently, in Glossip v. Gross, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, announced his opposition to the death penalty, citing examples of death row exonerations, data on wrongful convictions, the change in public opinion, and the decline in death sentences across the country.¹³ I am not sure it matters when or whether the U.S. Supreme Court abolishes the death penalty legally. The death penalty will have largely disappeared with a whimper before any such bang, due to the hard work of lawyers and a growing realization, in part driven by declining crime, that the death penalty serves no useful purpose. The people have spoken.

Death penalty cases have long provided a bellwether for American attitudes toward criminal justice. In the heyday of the death penalty, lawmakers passed national and state legislation stripping away prisoner rights to address concerns about endemic delays in death penalty cases. In Texas, Ashley’s Law, which created a sex offender registry, was passed in reaction to a death penalty case: one in which the man convicted was later exonerated by DNA testing. Lawmakers sped up appeals in death penalty cases, cut off funding to defense lawyers, and created hypertechnical procedural barriers for appeals and habeas.

In contrast, today, lawyers have uncovered so many errors that exonerations have contributed to a new death penalty debate.¹⁴ Open-file discovery, forensic science improvements, videotaping of interrogations, and other reforms have flowed from concerns about wrongful convictions, particularly in death penalty cases. Indeed, Texas—yes, Texas—is now the poster-child state for reforms to prevent wrongful convictions. A law reform commission named after exoneree Timothy Cole prompted a raft of reforms, including eyewitness identification procedures, forensic science improvements, and sweeping rules requiring prosecutors to give the defense police records and other discovery.

Following a lengthy trial, the jurors chose a life without parole sentence in the Aurora Theater shooting trial after hearing from a battery of experts describing the defendant’s severe mental illness. In a non–death penalty case, though, top lawyers and doctors might never get called. The death is different mantra long demanded special rules and resources for death penalty cases, but lawmakers are beginning to make use of the tools developed in capital cases to reform the entire system. A new reliance on pretrial mental health screening takes lessons on the importance of mitigation from death penalty cases to all our jails and prisons, which are disproportionately filled with mentally ill and disabled people. The team-based approach in death penalty cases is catching on not just in life without parole cases, but in public defense more broadly.

I conclude in Chapter 10 by describing what this means for criminal justice in America. Today, states are creating drug courts and mental health courts, using evidence-based approaches to release low-level offenders, helping prisoners with reentry, reducing barriers to employment, and focusing resources more on rehabilitation than on punishment. A long list of states, both red and blue, in the southern heart of the death penalty, in the West, and in the Northeast are now adopting reforms. These include Alaska, Georgia, Ohio, Oklahoma, Kentucky, Maryland, Mississippi, Texas, and dozens more. States are saving billions of dollars by reducing incarceration, and those same states are experiencing the largest reductions in crime.¹⁵ Ending mass incarceration will require taking these smart on crime approaches farther, though, since most prisoners did commit a violent offense, but with rehabilitation they need not do it again.

If we provide the tools, the death penalty will end, having unraveled on the weight of its own injustices. The same tools that have all but driven the death penalty into the ground, like consistent statewide teams of defense lawyers, an opportunity to humanize a person accused of a crime, and careful investigations of the facts, can then be harnessed to more broadly restore criminal justice in this country. Only by succumbing to fear did we drive up death sentences in the 1980s and 1990s, and we have little to show for that experiment in mass death sentencing. At the same time, we created the world’s largest prison system in the land of the free. Now we know better. We can respond to crime by preventing it and by rehabilitating people, rather than by imposing severe punishments out of a sense of helplessness.

More than the reform of our own criminal justice system hangs in the balance. Most countries around the world have already abolished the death penalty, and because of our adherence to the practice, they no longer look to America for moral leadership in criminal justice. After the fall of the death penalty, we can begin to reclaim our role as a standard-bearer for fairness. At a time when some politicians seek to stoke punitive emotions, it is important to remember how we have all but escaped the self-defeating cycle of punishment in death penalty cases. We did it once and we can do it again. Our supersized mass-incarceration system needs a crash diet—and the end of the rope for the death penalty can give criminal justice renewed life.

2  |  INEVITABILITY OF INNOCENCE

"I won’t have the opportunity to again get in front of you and try to convince you that this is probably the most