South Carolina Law Review Volume 54 Issue 2 Article 4 Winter 2002 Twenty-Five Years of Death: A Report of the Cornell Death Penalty Project on the "Modern" Era of Capital Punishment in South Carolina John H. Blume Cornell Law School Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation John H. Blume, Twenty-Five Years of Death: A Report of the Cornell Death Penalty Project on the "Modern" Era of Capital Punishment in South Carolina, 54 S. C. L. Rev. 285 (2002). This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Blume: Twenty-Five Years of Death: A Report of the Cornell Death Penalty TWENTY-FIVE YEARS OF DEATH: A REPORT OF THE CORNELL DEATH PENALTY PROJECT ON THE "MODERN" ERA OF CAPITAL PUNISHMENT IN SOUTH CAROLINA JoHN H. BLUME* I. INTRODUCTION ......................................... 286 II. FROM FURMAN TO GREGG TO STATE V. SHAW ................... 287 III. THE SOUTH CAROLINA DEATH PENALTY BY THE NUMBERS ....... 292 A. An Overview of Twenty-five Years of Death Sentences and Executions .............................. 292 B. ErrorRates ......................................... 293 C. Murder and Death Sentencing Rates ..................... 297 D. Locale ............................................. 298 E. Juveniles ........................................... 300 IV. OBSERVATIONS BASED ON THE DATA ........................ 302 A. ErrorRates ......................................... 302 B. Locale ............................................. 305 C. Race .............................................. 306 D. Proportionalityand Clemency .......................... 309 V. A BRIEF REVIEW OF CAPITAL JURY PROJECT STUDIES OF SOUTH CAROLINA'S DEATH PENALTY ..................... 315 VI. CONCLUSION ........................................... 318 APPENDIX A ............................................... 319 A PPENDIX B ............................................... 325 * Visiting Professor of Law, Cornell Law School and Director, Cornell Death Penalty Project. I would especially like to thank Susan Hackett and Amber Pittman for their invaluable research and data collection assistance. I would also like to thank Meghan Brosnahan and Gwen Alphonso for their excellent research assistance. I would also like to thank my former colleagues at the Center for Capital Litigation, especially Teresa Norris, for keeping track over the years of some of the information used (but independently verified for this Article) in this study. I would also like to thank David Bruck, Theodore Eisenberg, Steve Garvey, Sheri Johnson and Fielding Pringle for reviewing earlier drafts of this Article. Published by Scholar Commons, 1 South Carolina Law Review, Vol. 54, Iss. 2 [], Art. 4 SOUTH CAROLINA LAW REVIEW [Vol. 54: 285 A PPENDIX C ............................................... 333 A PPENDIX D ............................................... 337 A PPENDIX E ............................................... 339 A PPENDIX F ............................................... 349 APPENDIX G ................................................ 351 I. INTRODUCTION In 1972, the United States Supreme Court determined that the death penalty, as then administered in this country, violated the Eighth Amendment's prohibition against cruel and unusual punishment.1 Many states, including South Carolina, scurried to enact new, "improved" capital punishment statutes which would satisfy the Supreme Court's rather vague mandate. In 1976, the High Court approved some of the new laws,2 and the American death penalty was back in business. After a wrong turn or two, including a statutory scheme which did not pass constitutional muster,3 the South Carolina General Assembly passed the current death penalty statute in 1977.' The first death sentences under the new capital sentencing regime were imposed on October 7 of the same year.5 With twenty-five years of experience under the South Carolina "death belt," an examination of how the new, improved death penalty statute is working is in order. It is time for a report card. The time is right to examine South Carolina's capital punishment scheme not only due to the new regime's twenty-fifth anniversary, but also because of several recent national studies raising troublesome findings about the administration of the death penalty in the United States. For example, Professor James Liebman and his colleagues, in their "Broken System" studies, found high rates of error in capital cases, as well as racial inequities, geographical 1. Furman v. Georgia, 408 U.S. 238, 239-40 (1972) (per curiam). 2. See infra notes 20-24 and accompanying text. 3. See infra notes 28-30 and accompanying text. 4. See S.C. CODE ANN. § 16-3-20 (Law. Co-op. Supp. 2001). 5. J.D. Gleaton and his half brother, Larry Gilbert, were sentenced to death in ajoint trial in Lexington County and were executed on December 4, 1998. See Sid Gaulden, Brothers Executed by Lethal Injection, THE POST AND COURIER (Charleston, S.C.), December 5, 1998, at https://scholarcommons.sc.edu/sclr/vol54/iss2/4 2 Blume: Twenty-Five Years of Death: A Report of the Cornell Death Penalty 2002] TWENTY-FIVE YEARS OF DEATH disparities, and other systemic defects in the administration of the death penalty.6 This Study, with its focus on South Carolina, is much more modest. It is an attempt to scrutinize one state's new death penalty from a variety of perspectives in light of these national findings. Thus, after first discussing the legal landscape against which the current capital punishment statute was enacted,7 this Article will explore who has been sentenced to death in this state; how jurors, the South Carolina Supreme Court, other reviewing courts, and South Carolina's governors have performed their various functions in the system; and how the system stacks up against the promise of a "new and improved" death penalty.' Furthermore, the Capital Jury Project is briefly discussed.9 II. FROM FURMAN TO GREGG TO STATE V. SHAW In Furman v. Georgia'0 a bare 5-4 majority of the Supreme Court invalidated all then-existing death penalty statutes. Each of the Justices in the majority wrote separately, and no clear consensus emerged as to why the death penalty, which had been upheld against constitutional attack the year before," was now unconstitutional. At the risk of oversimplification, the constitutional rub arose from the fact that the death penalty was imposed in only a fraction of cases in which it was legally available. The Justices could divine no rational basis explaining why some offenders were sentenced to death while others were spared. 2 For this reason, the Court found that the state systems allowed for the arbitrary and capricious imposition of capital punishment. Justice Brennan's concurring opinion captures this sentiment: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system."' 3 There was, 6. See JAMES S. LIEBMAN ET AL., A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995 (2000) [hereinafter BROKEN SYSTEM I]; JAMES S. LIEBMAN ETAL., A BROKEN SYSTEM, PART II: WHY THERE IS SO MUCH ERROR IN CAPITAL CASES, AND WHAT CAN BE DONE ABOUT IT (2002) [hereinafter BROKEN SYSTEM II]. 7. See discussion infra Part II. 8. See discussion infra Parts III-IV. 9. See discussion infra Part V. 10. 408 U.S. 238, 239-40 (1972). 11. See McGautha v. California, 402 U.S. 183, 193 (1971) (rejecting argument that absence of standards to guide jury's discretion in death penalty sentencing was "fundamentally lawless" and violated Fourteenth Amendment). 12. In most pre-Furmanschemes, including South Carolina's, the jury decided the issue of the defendant's guilt and the appropriateness of the death penalty in the same unitary proceeding. See S.C. CODE § 16-52 (Michie 1962). If the jury found the defendant guilty of murder, it would recommend mercy if it thought a life sentence were appropriate and would not recommend mercy if it favored death. Id. 13. Furman, 408 U.S. at 293 (Brennan, J., concurring). Published by Scholar Commons, 3 South Carolina Law Review, Vol. 54, Iss. 2 [], Art. 4 SOUTH CAROLINA LAW REVIEW [Vol. 54: 285 in short, no "rational basis that could differentiate in those terms the few who die from the many who go to prison."14 Justice Stewart echoed Justice Brennan's concerns: "I simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."15 The fear that racial discrimination played a significant role in the death selection process was also of grave concern to several members of the Court. For example, in Justice Douglas' view it was "incontestable that the death penalty inflicted on one defendant is 'unusual' if it discriminates against him by reason of his race, religion, wealth, social position, or class, or if it is imposed under a procedure that gives room for the play of such prejudices." 6 The primary flaw in the statutes before the Court was that those statues gave juries too much discretion in deciding whether to impose the death penalty. 7 However, there was no majority consensus that the death penalty was per