Loyola of Los Angeles Law Review Volume 23 Number 1 Symposium—The Death Penalty Article 5 Approaches the 1990s: Where Are We Now 11-1-1989 The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty Ronald J. Tabak J. Mark Lane Follow this and additional works at: https://digitalcommons.lmu.edu/llr Part of the Law Commons Recommended Citation Ronald J. Tabak & J. M. Lane, The Execution of Injustice: A Cost and Lack-of-Benefit Analysis of the Death Penalty, 23 Loy. L.A. L. Rev. 59 (1989). Available at: https://digitalcommons.lmu.edu/llr/vol23/iss1/5 This Symposium is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. THE EXECUTION OF INJUSTICE: A COST AND LACK-OF-BENEFIT ANALYSIS OF THE DEATH PENALTY* Ronald . Tabak** and J. Mark Lane*** TABLE OF CONTENTS I. INTRODUCTION ......................................... 61 II. THE DEATH PENALTY IS STILL ARBITRARY AND CAPRICIOUS ............................................ 62 A. The CapitalPunishment System Does Not Rationally Select Those Who Shall Die ......................... 62 B. Overzealous ProsecutorsImproperly Seek and Obtain Death Sentences ..................................... 64 C Ineffective Defense Renders Capital Trials Unfair ..... 69 D. The Juq Selection Process Fails to Ensure Unbiased Juries .............................................. 75 E. Jurors in Capital Cases Are Often Misled, Misinstructed, or Incompletely Informed ............. 77 F. The Lack of Real ProportionalityReview Means that * This Article was prepared for New York Lawyers Against the Death Penalty, an organization of over 1,000 members of the New York Bar, as a memorandum in opposition to legislation which would restore the death penalty in New York State. That legislation was passed by both houses of the New York State Legislature in early 1989, but was vetoed by Governor Mario Cuomo. In June 1989, when it became apparent that the veto could not be overridden in the regular 1989 session, the legislature adjourned without a vote on the proposed override. The proposed legislation is expected to be reintroduced in the 1990 session. This memorandum has been updated and modified since its initial distribution in Spring 1989. The authors would like to thank the following people, all of whom provided substantial assistance in the preparation of tle memorandum upon which this Article is based: James Pitofsky, Martin I. Rosenbaum, Maura Barry, Tanya Coke, Jeffrey Trachtman, Jonathan E. Gradess, Stephen Gillers, Channing Kury, Jonathan Lang, Arthur C. Helton, Peter Neufeld, Howard Schrader, Stephen Latimer, Tom Terrizzi, Polly Passoneau, Holly Levine, Pamela Winnick, Leon Bijou, and Maureen O'Connor. ** Ronald J. Tabak, B.A. Yale University, J.D. Harvard University; Special Counsel and Coordinator of Pro Bono Work, Skadden, Arps, Slate, Meagher & Flom; Chair, Death Penalty Committee, American Bar Association, Committee of Individual Rights and Responsibilities; President, New York Lawyers Against the Death Penalty. *** J. Mark Lane, B.A. University of North Carolina at Chapel Hill, J.D. candidate New York University School of Law, 1990. 60 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 23:59 the Arbitrary Imposition of Death Is Not Corrected on Appeal .............................................. 81 G. Lack of Qualified, Adequately Compensated Counsel for Post-Conviction Proceedings ...................... 83 H. Overly Strict ProceduralBar Rules Lead to Executions of People Unconstitutionally Convicted or Sentenced .......................................... 85 III. THE DEATH PENALTY OPERATES IN A RACIALLY DISCRIMINATORY MANNER ............................. 89 IV. MENTALLY RETARDED PEOPLE AND OTHERS NOT COMPETENT TO STAND TRIAL ARE BEING EXECUTED... 93 V. PEOPLE WHO NEITHER KILLED NOR INTENDED TO KILL ARE RECEIVING DEATH SENTENCES .............. 96 VI. INNOCENT PEOPLE ARE RECEIVING THE DEATH PENALTY AND SOME ARE BEING EXECUTED ............ 98 A. Innocent People Have Been Sentenced to Death in the 1970s and 1980s .................................... 99 B. Numerous Innocent People Have Been and Still Are Convicted in New York .............................. 108 C. Innocent People Are Still Being Executed ............. 110 VII. THE DEATH PENALTY IS NOT A DETERRENT ........... 114 A. The Death Penalty Is Not a General Deterrent........ 114 B. The Death Penalty Is Not Relevant to Arguments for Specific Deterrence .................................. 119 C. Currently Available Life Sentences for the Most Severe Murders Do Provide Effective Incapacitation.......... 125 VIII. THE DEATH PENALTY ACTUALLY EXACERBATES THE PROBLEMS OF VICTIMS' FAMILIES ....................... 129 A. Survivors of Murder Victims Often Oppose the Death Penalty ............................................. 129 B. Imposition of the Death Penalty Means Continued Victimization of Survivors ............................ 131 C. Executions Do Not Provide Satisfaction ............... 132 IX. A DEATH PENALTY SYSTEM IS MORE COSTLY THAN A SYSTEM IN WHICH LIFE IMPRISONMENT IS THE MOST SEVERE PUNISHMENT ................................... 133 A. There Are Many Reasons Why Death Penalty Cases Require Additional Expenditure of Tremendous Amounts of Taxpayers' Money ....................... 133 November 1989] THE EXECUTION OF INJUSTICE B. Numerous Studies Confirm that the Death Penalty Is More Expensive ..................................... 135 C The Death Penalty Diverts Resources Away from Fighting Crime ..................................... 136 X. THE DEATH PENALTY PLACES THE UNITED STATES IN ISOLATION FROM VIRTUALLY ALL DEMOCRATIC COUNTRIES AND IN THE COMPANY OF THE WORST DICTATORSHIPS ......................................... 138 XI. THE OLD AND NEW TESTAMENTS HAVE BEEN GROSSLY DISTORTED AS A PURPORTED JUSTIFICATION FOR THE DEATH PENALTY ....................................... 142 XII. CONCLUSION ........................................... 146 I. INTRODUCTION As Virginia Assistant Attorney General Robert Harris recently ac- knowledged, the more educated the public becomes about capital punish- ment, the more the public will oppose it.' The facts, readily available after a decade and a half of trials under the modern death penalty stat- utes, simply lend no support to the use of capital punishment. The first six sections of this Article describe fundamental problems with the death penalty, problems that might be thought of as the social "costs" of the death penalty. Sections seven through nine correct com- mon misconceptions that underlie current support for the death penalty. These sections illustrate that there are no real "benefits" from the death penalty. Finally, section ten describes the growing international consen- sus against the use of the death penalty, a consensus that, as discussed in section eleven, reflects a moral judgment that capital punishment cannot be justified. The issues discussed herein are of national significance and the ma- terial presented covers a wide range of jurisdictions. Moreover, every problem which this memorandum describes would exist under the pro- posed death penalty legislation in New York if it were enacted.2 1. Makin, Killing the Killers" Part 6, Toronto Globe and Mail, June 12, 1987, at A3, col. 2. 2. This Article does not purport to be an exhaustive study of all the problems with the death penalty in other states. Such a study would necessarily include a variety of additional problems not discussed here because they would not arise under the death penalty bill pro- posed in New York. For example, this Article does not discuss judicial overrides of jury sen- tencing decisions. Such overrides are a serious problem in Florida, where judges frequently ignore jury recommendations of life imprisonment and impose the death penalty instead. See Tabak, The Death ofFairness: The Arbitrary and CapriciousImposition of the Death Penalty in the 1980s, 14 N.Y.U. REV. L. & Soc. CHANGE 797, 820-22 (1986). 62 LOYOLA OF LOS ANGELES LAW REVIEW [Vol. 23:59 II. THE DEATH PENALTY IS STILL ARBITRARY AND CAPRICIOUS A. The CapitalPunishment System Does Not Rationally Select Those Who Shall Die The Supreme Court struck down all existing capital punishment schemes in 1972 because they allowed the "arbitrary and capricious" im- position of death.3 Four years later, the Court approved certain new cap- ital statutes which supposedly corrected that constitutional problem.4 However, after over a decade and a half of experience under the new statutes, as this Article demonstrates, the death penalty is still being ap- plied arbitrarily and capriciously. Of the approximately 20,000 homicide arrests in the United States each year, approximately 4,000 people are ultimately convicted of mur- der.5 Of those, approximately 250 are sentenced to death.6 If it could be shown that these 250 are the most heinous murderers, the most danger- ous criminals confronting the criminal justice system, and that they have repeatedly killed or are likely to repeatedly kill, then some degree of ra- tionality in imposing the death sentence might be argued. However, although the assumption that we are executing the worst killers clearly underlies public support for capital punishment, that assumption is baseless. The so-called "guided discretion"