Capital Punishment

Resource Guide

While thirty-two states and the federal government currently have the death penalty within their legal framework, issues surrounding the administration and fairness of the death penalty are perennially hot topics in U.S. politics and among members of the bench and bar. Several states have engaged in a moratorium on executions while they study possible inequities within the system, while others have developed innocence projects to examine the innocence of death-row inmates through DNA testing.

 

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.


Featured Resources

Facts About the Death Penalty. (2015). Death Penalty Information Center.

Get the latest information about the statistics and demographics relating to Capital Punishment in the 33 US states which carry the penalty.

Death Sentences and Executions 2014. Amnesty International This information guide outlines the use of capital punishment in 2014; over 607 executions were reported in 22 countries. The USA is the only country in the Americas to carry out executions. 35 executions and 72 new death sentences were administered in 2014 with over 3,000 inmates on death row.
Moving Away from the Death Penalty: Arguments, Trends, and Perspectives. United Nations Human Rights, Office of the High Commissioner The UN is advocating for complete abolition of the death penalty worldwide. This piece discusses discrimination, wrongful convictions, and more. It compares the criminal justice system in the United Kingdom, which abolished the death penalty in 1965, to current situations in Botswana, Zimbabwe, and India. Finally, the article criticizes developed countries like the United States for the continuous use of capital punishment while asserting that eyewitness misidentification is the leading cause of wrongful convictions in the U.S. and discussing the importance of DNA testing in relation to exonerations. The UN suggests replacing the death penalty with life in prison.
Why Does the U.S. Have Capital Punishment?. Embassy of the United States The embassy explains that capital punishment exists because states are allowed to choose their own penalties. States are divided: some have no death penalty, some rarely use their death penalty laws, others sentence many to death but rarely execute them, and still others actually carry out executions but only after inmates  have spent over a decade on death row. Modern governments are focused on less violence which is why over 95 countries have abolished capital punishment. The death penalty could be fully abolished in the U.S. if the Supreme Court were to declare the practice unconstitutional.
Timothy V. Kaufman-Osborn. Proportionality Review and the Death Penalty. (2008). Justice System Journal vol. 29, no. 3.

This essay explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly following the de facto moratorium imposed by the U.S. Supreme Court in 1972.

John M. .Scheb II, William Lyons, and Kristin A. Wagers. Race, Prosecution, and Juries: The Death Penalty in Tennessee. (2008). Justice System Journal 29, no.3.

This article examines the behavior of prosecutors and juries with respect to the decision to impose the death penalty.

Supreme Court Decisions Court Cases

Uttecht v. Brown. (June 2007). Supreme Court of the United States, No. U.S. 60-413 The Supreme Court upheld the actions of a trial court where the trial court dismissed a juror who would impose the death penalty in only extreme situations.  The U.S. Ninth Circuit Court of Appeals ruled that the juror was not impaired in his abilities to perform and, therefore, should not have been dismissed.  In a 5-4 decision, the Supreme Court ruled that appellate courts "owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror."      
Death Penalty . Cornell University Law School Legal Information Institute Provides a list of several important court cases related to the death penalty.
Glossip v. Gross. (June 2015).

In the second case to challenge a three-drug lethal injection protocol (see Baze v. Rees, 2008), the Supreme Court upheld such a method of execution. The significant difference between this case and Baze was that the first drug in the protocol was a sedative (Midazolam) rather than a barbiturate (Sodium Thiopentol). Treating the plurality opinion of Chief Justice Roberts in Baze v. Rees as the controlling precedent, the Court ruled that the petitioner had failed to meet both burdens established by that ruling: (1) That the use of Midazolam is "sure or very likely to cause needless suffering," and (2) that there is an available alternative that carries a lesser risk of pain.

 

 

Baze v. Rees. (June 2008). Supreme Court of the United States, No. 217 SW3rd 207 This Supreme Court order granted the petition for a Writ of Certiorari on September 25, 2007. This case was based on a stay of execution granted for Earl W. Berry from Kentucky. The issue is not the constitutionality of lethal injection, but rather a more procedural question on how judges should evaluate claims that a particular combination of drugs used in the execution causes suffering that amounts to cruel and unusual punishment in violation of the Eighth Amendment. The Court upheld this protocol. Chief Justice Roberts ruled in his plurality opinion, regarded as the controlling opinion, that in challenging a method of execution the challenger must show (1) that there is a demonstrated risk of severe pain, and (2) that the risk is substantial when compared to an available alternative.
Roper v. Simmons. (March 2005). Cornell University Law School, No. U.S. 03-633 The Supreme Court holds that juveniles cannot be executed for crimes committed as a minor given that the Eighth Amendment prohibits the juvenile death penalty as cruel and unusual punishment. The majority reasoned that juveniles lack maturity and are less culpable than adults.
Abu-Ali Abdur`Rahman v. Bell. (April 2002). United States Court of Appeals for the Sixth Circuit 226 F.3d 696 (6th Cir. 2000), cert. granted, 535 U.S. (U.S. Apr. 22, 2002) (No. 01-9094). This case arises from a petition for writ of habeas corpus challenging the death sentence of the petitioner on grounds that he received ineffective assistance of counsel in the sentencing phase of his trial.
Atkins v. Virginia. (June 2002). Cornell University Law School, No. U.S. 00-8542 The Supreme Court holds that mentally retarded criminals cannot be executed under capital punishment. The Court finds that the Eighth Amendment prohibits the death penalty for mentally retarded defendants as cruel and unusual punishment.
Bell, Warden v. Cone. (May 2002). Cornell University Law School, No. U.S. 01-400 This link explains the Supreme Court case concerning a defendant's "ineffective assistance during his sentencing hearing."
Mickens v. Taylor, Warden. (March 2002). Cornell University Law School, No. U.S. 00-9285 This Supreme Court case involves a defendant who "was denied effective assistance of counsel because one of his court-appointed attorneys had a conflict of interest at trial."
Williams v. Taylor, Warden. (April 2000). Cornell University Law School, No. U.S. 98-8384 This Supreme Court case involves the defendant "counsel’s failure to discover and present significant mitigating evidence [which] violated his right to the effective assistance of counsel under Strickland v. Washington."

Counsel and Representation

Rose Jade. ABA Guideline 10.7(B)(2): The New Achilles' Heel for Trial Courts and Counsel Handling Death Penalty Cases?. (2008). Justice System Journal 29, no. 3.

This article explores common problems encountered when lawyers attempt to meet the mandate of Guideline 10.7(B)(2) from the perspective of court administrators, court reporters, and capital-defense attorneys.

Suveiu, Virginia. Standards in Representation in Death Penalty Cases. (2008). Knowledge and Information Services.

State-by-state listing of the rules, regulations, recommendations and other schemata regarding standards of representation in capital cases.

Resolution 18: Competent Counsel and DNA Testing. Conference of Chief Justices This resolution, adopted January 25, 2001, endorses cooperative efforts with the federal government to ensure the provision of competent counsel to defendants facing the death penalty and adequate DNA-testing procedures in criminal proceedings.
Ronald J. Tabak. The Private Bar's Efforts to Secure Proper Representation for Those Facing Execution. (2008). Justice System Journal 29, no. 3.

This article discusses how private bars, especially the ABA, attempt to ensure proper representation for those who may be executed.

The Role of Defense Lawyers in Capital Cases. University of Michigan Press Explains that the ABA has been working to improve the quality of representation for defendants since inadequate representation can be found in every state. States with the most executions have done the least, especially Texas where there have been several reports of uninvolved attorneys.
Paul Barker and Ben Coate. Whose Justice? Prosecution and Defense Reactions to Capital–Case Reversals. (2008). Justice System Journal 29, no.3.

This article investigates reactions of prosecutors and defense attorneys to reversals in individual capital cases.

James N. G. Cauthen and Barry Latzer. Why So Long? Explaining Processing Time in Capital Appeals.. (2008). Justice System Journal 29, no.3.

This article presents the findings of an investigation of the time expended by fourteen state supreme courts to resolve direct appeals of capital convictions and sentences.

Death Penalty Representation Project. American Bar Association This project's goal is to work for systemic changes in the criminal justice system that would ensure those facing death are represented at all stages of the proceedings from trial through clemency by qualified, adequately compensated counsel.

General

Mark S. Hurwitz. Give Him a Fair Trial, Then Hang Him: The Supreme Court's Modern Death Penalty Jurisprudence. (2008). Justice System Journal 29, no. 3.

This article discusses the current and future death penalty jurisprudence of the Supreme Court and looks at cases that collectively illustrate the Courts' struggle to create consistent standards of capital punishment.

Jon B. Gould. Justice Delayed or Justice Denied? A Contemporary Review of Capital Habeas Corpus.. (2008). Justice System Journal 29, no. 3.

This article addresses two research reports about capital cases and habeas corpus.  These studies offer a contemporary snapshot of postconviction review and illustrate the influence of state collateral processes on capital habeas litigation in the federal courts.

Susan Ehrhard. Plea Bargaining and the Death Penalty: An Exploratory Study. (2008). Justice System Journal vol. 29, no. 3.

This article addresses the criticism that plea bargaining is a form of coercion, as prosecutors persuade defendants to forfeit their trial rights for fear of receiving harsher punishment if they do not plead guilty.

Timothy V. Kaufman-Osborn. Proportionality Review and the Death Penalty. (2008). Justice System Journal 29, no. 3.

This essay explores the adequacy of one of the safeguards adopted by many states to ensure that the death penalty is applied fairly following the de facto moratorium imposed by the U.S. Supreme Court in 1972.

King, Nancy, Fred Cheesman, and Brian Ostrom. Habeas Litigation in U.S. District Courts.. (August 2007). NCSC and Vanderbilt University Law School

This study provides empirical information about the processing of state prisoner petitions seeking habeas corpus relief in the U.S. District Courts under the Antiterrorism and Effective Death Penalty Act of 1996.

Mandatory Justice: The Death Penalty Revisited. (2006). In 2001, the Constitution Project released "Mandatory Justice: Eighteen Reforms to the Death Penalty", which contains the consensus recommendations of a diverse group judges, prosecutors, defense lawyers, reporters, victims and corrections employees. Since then, courts and state legislatures around the country have instituted changes that, for the most part, improve the accuracy of their capital punishment systems.  This report is a follow-up on the original work.
Hicks, Wendy L. The System-Wide Effects of Capital Punishment on the Criminal Justice System: The Use of Computer Modeling in Death Penalty Research. (Fall 2006). This paper strives to examine issues surrounding capital punishment utilizing a systems analysis approach, to look at the way capital punishment impacts the criminal justice system as a whole.

Costs

James W. Douglas and Helen King Stockstill. Starving the Death Penalty: Do Financial Considerations Limit Its Use?. (2008). Justice System Journal 29, no. 3.

This article addresses the expensiveness of death penalty cases both time-wise and monetarily for judicial systems to administer.

Maurice Chammah Six Reasons Why the Death Penalty is Becoming More Expensive. (2014). The Marshall Project Between 1989 and 1997, the average cost for a case going to trial was just under $270,000, but between 1998 and 2004, it was over $620,000. Chammah explains that this cost increase is due to multiple factors: attorney pay, expert testimony, unpredictability, mitigation, juries, and housing.
Final Report of the Death Penalty Subcommittee on the Committee on Public Defense. (December 2006). Washington State Bar Association. This report describes how the death penalty operates in Washington, analyzes the cost of death-penalty cases and the compensation of attorneys who handle death-penalty cases, and provides recommendations for improvement.
Cost of the Death Penalty. The Death Penalty Information Center This Web page provides links to various state studies and reports relating to analyzing costs associated with the death penalty.

Educational Clinics Training

Cornell University Death Penalty Project. This project provides an opportunity for Cornell students to participate in the representation of death-sentenced inmates and to provide information, resources, and assistance to attorneys involved in representing capital clients. 
Northwestern University Bluhm Legal Clinic, Center on Wrongful Convictions. Northwestern University This center is dedicated to identifying and rectifying wrongful convictions. Links to additional publications and resources are also provided.
University of California-Berkeley Death Penalty Clinic. The clinic's mission is to offer a program that helps students develop outstanding legal skills and to serve clients facing capital punishment.
University of Michigan Clarence Darrow Death Penalty Defense College. This college holds a five-day seminar open to defense attorneys who have pending capital cases. 

Exoneration Moratorium

Death Penalty Moratorium Implementation Project. American Bar Association This Web site provides a host of information on moratorium projects, court cases, and legislation across the country. A comprehensive list of FAQs is provided.
Innocence and the Death Penalty. Death Penalty Information Center Exonerations by state and year are provided along with news and developments on exonerations and innocence projects.
Gramlich, John, and Daniel C. Vock. Lethal Injection Goes on Trial, But Goes On. (August 2007). This article discusses recent challenges to lethal-injection procedures. Lethal injection is now on hold in 10 states: California, Delaware, Florida, Kentucky, Maryland, Missouri, New Jersey, North Carolina, Ohio, and Tennessee. 
Karen F. Parker et al. ``Race, Death Penalty, and Wrongful Convictions``. (September 2003). Criminal Justice Magazine This article provides an extensive review of the literature on race, the death penalty, and wrongful convictions. The author also provides links to the power-threat theory, death row, and wrongful convictions and discusses the changing social and political climates.
The Innocence Project. Northwestern University Center on Wrongful Convictions This project provides current statistics on wrongful conviction as well as links to literature and studies on this topic. 
Ramsey, Robert J. Wrongful Conviction. (2007). Crime and Delinquency, vol. 53, no. 3 The author examined the perceptions of 798 criminal-justice professionals regarding the frequency of system errors and wrongful felony conviction.

Information Clearninghouses

Death Penalty Information Center. Considered the premier source for information on the death penalty, this Web site provides fact sheets, an execution database, an e-mail service, information on the history of the death penalty, costs, and clemency.
Lethal Injection Project. Death Penalty Clinic at U.C. Berkeley School of Law This clearinghouse provides information about lethal injection and challenges to lethal injection as a method of execution.
State-by-State Death Penalty Information. Death Penalty Information Center Provides information on the death penalty and executions in each state.
Virginia Capital Case Clearinghouse. Washington and Lee University School of Law This Web site contains information that will aid lawyers involved in capital cases. It provides litigation guides, data on capital litigation, a capital-defense listserv, capital-defense seminars, and links to articles from the Capital Defense Journal.

Legal Defense Agencies

American Bar Association Death Penalty Representation Project. The goals of this project, begun in 1986, are to better inform the bar and the public about the lack of representation available to death-row inmates; to recruit competent volunteer attorneys; and to offer counsel training and assistance.
National Association of Criminal Defense Lawyers. This Web site includes a list of articles pertaining to the death penalty.
National Legal Aid and Defender Association. This is the home page for the National Legal Aid and Defender Association.  Included on the Web site is information about NLADA, civil and defender resources, conferences, training seminars, and jobs.