This month marked the release of an important new report, Smart on Crime: Recommendations for the Administration and Congress, which provides comprehensive analysis of the federal criminal justice system, and lays out extensive recommendations for reform. Coordinated by the non-partisan advocacy group the Constitution Project, the report brings together a diverse coalition of over 40 criminal justice organizations who apply their expertise to advising the Obama administration and the new congress on how to tackle the difficult problems facing our justice system. The report includes a thoroughly researched inquiry into the death penalty and provides insight into how to remedy the lack of constitutional safeguards which currently characterize the system.
The report’s analysis of the death penalty begins by taking note of the severity of death as a method of punishment, arguing that because the death penalty is irreversible there is a premium on ensuring its application is fair and equitable.They go on to show that the system as currently constituted does not meet these constitutionally mandated standards, focusing on four major problems areas. The issues highlighted include the lack of adequate review of capital convictions, the significant racial bias in their application, the unfair targeting of the mentally ill as capital defendants, and the woefully insufficient legal representation of the indigent defendants who make up the lion’s share of individuals we execute.
Despite persistent concerns about wrongful convictions in capital cases, recent legislation has only made it more difficult for Courts to review challenges to capital convictions. 1996’s Antiterrorism and Effective Death Penalty Act has placed severe restrictions on defendants’ abilities to seek habeas relief, particularly as those challenges pertain to defendants’ claims of actual innocence. The incredibly narrow scope of acceptable petitions makes it close to impossible to correct many constitutional oversights that occur at the trial phase, substantially increasing the risk that innocent people will be executed. This problem is compounded by the fact that defendants frequently do not have access to legal counsel during post-conviction review which leaves them at the mercy of a legal system that has already invested considerable resources in proving their guilt. To insure adequate review, the report recommends attorney general action to provide defendants with counsel, as well as congressional and executive support of amendments to the AEDPA which would eliminate restrictive requirements on appeals.
The problem of racial bias regarding the death penalty has been well documented—a Department of Justice study has shown that 73 % of federal capital cases involve non-white defendants, and research has shown that 40 % of the death row population is African American despite their making up only 12 % of the country’s general population. Bias occurs at all levels of the process, as prosecutors are more likely to seek death for white victims, non-white defendants are more likely to accused of capital crimes, and they are less likely to receive pleas which take death off the table. DOJ regulations which ensure that the U.S. Attorney General must review all death-eligible cases contribute to this problem by overly centralizing the process, ensuring an alarmingly small number of people get to make the decision about which cases are worth prosecuting. The report suggests that the first step towards confronting this imbalance is to ensure adequate documentation of the problem which is why independent commissions must be erected to review the relationship between race and capital conviction.Additionally, legislative and executive action must be taken to eliminate racial discrimination in capital cases, including eliminating the excessive peremptory challenges that enable prosecutors to try minority defendants in front of all-white juries. The DOJ should also decentralize its review process to ensure that more eyes take a look at each case, thus increasing the opportunity to catch unjust prosecutions before they happen.
While the Supreme Court has ruled that juveniles and the mentally retarded lack the decision-making competence to be sentenced to death, similar protections have not been extended to the mentally ill who make up an alarmingly high percentage of death row inmates. These individuals frequently lack the self-awareness and control necessary to really understand or govern their behavior, which raises significant ethical questions about considering them fit for execution. The report recommends that Congress change U.S. code to explicitly prohibit the application of the death penalty to these individuals and that the Justice Department similarly commits to not pursue death in these cases.
The final area examined by the report is the lack of representation for capital defendants who generally amongst the poorest members of American society.These indigent defendants often have very limited access to counsel, and when they do, their attorneys are very often under-trained, overworked, and lack the independence necessary to adequately represent their clients. Given the vast resources the state and federal governments commit to capital prosecutions, this disequilibrium should give us pause as the risk that innocents are sentenced to die greatly increases when their lawyers are either unable or unwilling to provide them with meaningful defense. The congress is in the position to begin correcting this problem by increasing the independence of indigent defenders so that they can build their cases without interference from bosses who are also prosecutors.The report thus suggests starting, and adequately funding, an office of the Defender General which would supervise defense attorneys in these cases and provide them with the resources necessary to give defendants a fair shot at fighting their convictions.
While the best way to correct the flaws with the death penalty would be to stop applying it all, the Smart on Crime recommendations represent an important step in the right direction which should be embraced by capital punishment opponents. In addition to providing immediate relief to those currently facing capital charges, these reforms provide the building blocks for the creation of a more just and equitable criminal justice system. Research has consistently shown that one of the main contributing factors to support for the death penalty is citizen’s relative ignorance on the subject; in this light, we can see the report and reforms it advocates as playing an important consciousness raising function. By forcing government officials and the public at large to think seriously about the flaws that plague the death penalty, the Smart on Crime report helps direct attention to just how broken the system is which will add increased urgency and support for the search for more effective alternatives.
James Brockway – guest blogger on DPF