A Cruel and Unusual Punishment and the Fight for Due Process of Law

A Cruel and Unusual Punishment and the Fight for Due Process of Law

Forty years ago there was no death penalty in the United States. In 1972 in a landmark judgment called Furman v. Georgia 408 US 238 (1972) the Supreme Court of the United States had struck down the death penalty as a breach of the prohibition on ‘cruel and unusual punishments’ in the 8th Amendment to the Constitution of the United States. The court said that the death penalty was arbitrary and because the jury had an untrammelled discretion in deciding whether to impose a death sentence there was no rational basis for deciding which defendants would get the death penalty and which would not.

Four years later in Gregg v. Georgia 428 US 153 (1976) the Supreme Court was persuaded that revised death penalty statutes were constitutional because they had introduced the concept of aggravating factors such as murder in the course of a felony offence or two people being murdered in the same transaction to warrant a murder being deemed to be a capital offence. The Court felt that these changes had answered the concerns raised in Furman and if properly applied would ensure that capricious and whimsical decisions to impose death were a thing of the past and that such a sentence would only be possible after specific findings about the circumstances of the offence and the character of the defendant as to justify the sentence.

…‘the death penalty is not reserved for the worst of the worst but for the poorest of the poor.’

Almost 40 years on and after more than 1,300 executions across the United States the reality is that the death penalty remains arbitrary in its application, it remains shot through with racism and, in global terms at least, it is perpetuating an unusual as well as a cruel punishment. A punishment that was once justified on the basis of being reserved for the very worst examples of cruelty and inhumanity on the part of a murderer has become something else entirely. As recently retired Supreme Court Justice John-Paul Stevens himself put it, ‘the death penalty is not reserved for the worst of the worst but for the poorest of the poor.’ It may have been acceptable in the 18th century but it is a relic of a bygone age and it is high time it was left to the history books.

Almost all of the 3,100-odd people on death row are poor. In contrast to the UK system with legal aid where wealth makes no difference to the quality of representation, in the United States money makes all the difference. By law you are entitled to an attorney at trial and the state will provide funding for this but the rates of pay available have been shockingly low and lawyers are generally very reluctant to become involved in a capital case for this reason. Rates often work out at just a few dollars an hour and are wholly inadequate to enable the attorney to provide the level of representation a capital case deserves. As the case of Cory Maples illustrated, in Alabama the state will pay a flat fee of $1,000 for counsel to undertake a capital defence. In Pennsylvania the rate is $2,000. It is not uncommon for judges to assign counsel to defend a capital case despite the reluctance of counsel to have the case assigned to them. Capital cases are expensive. They frequently involve more expert witnesses than in the UK. Every time the defence attorney needs funds for an expert witness, he will have to return to the trial court and ask the judge to grant the funds to do so. This will include medical experts on wounds, a psychiatrist to examine the defendant, an expert on DNA or other forensic evidence. Judges are extremely reluctant to spend state funds on the defence case and frequently refuse a defence application for such funds.

In addition, capital cases require hundreds of hours of preparation. It is vital that at an early stage the defence lawyers begin work on what happens after the jury have convicted the defendant. The punishment phase of a capital trial is crucial and on the work done before the trial begins the life of the defendant will depend. Enquiries into the client’s background and upbringing are critical in order to present a proper mitigation for the client and this often takes hundreds of hours of work to prepare and it all has to be paid for.

The poor rates of pay on offer for capital cases make them very unpopular with good lawyers who know they can earn much more doing other types of work. If a capital case requires 1000 hours of preparation and the fees on offer are maybe $30–40 an hour as they may be these days, no lawyer can pay the office rent, the wages of the staff and hope to make any sort of living doing such work. As a result there are people on death row today who had the most appalling standard of service from their lawyers. Such cases have in the past been handled by drunks, drug addicts, lawyers who had previously been disbarred for misconduct or had far too little experience to handle such important cases.

The further consequence is that the work that needed to be done to give the client a fighting chance of saving their lives was not done and the client ended up on death row – not because he was amongst the worst of the worst but because he was amongst the poorest of the poor. The 6th Amendment to the US Constitution guarantees the right to the effective assistance of counsel for the defence. The 5th Amendment applied to the States by the 14th Amendment guarantees that no one shall be ‘deprived of life… without due process of law’.

Many of those on death row are no doubt guilty of their crimes. A substantial number, however, are likely to be innocent.

These constitutional rights are being regularly flouted in the case of capital defendants. Many of those on death row are no doubt guilty of their crimes. A substantial number, however, are likely to be innocent. But even guilty people are entitled to due process, to a fair trial and many of them were deprived of that right because they were poor and didn’t get a good lawyer and the system let them down badly, just when it needed to be robust in defence of their rights.

Forty percent of those on Texas death row are black, despite making up only 12 per cent of the population of that state, according to the 2010 census. Across the USA, people of colour are to be found in a far greater proportion on death row compared to their share of the national population. A well known study by Professor Baldus, known as ‘the Baldus study’, conducted in Georgia the early 1980s established clearly that the colour of the victim was the most important factor in the jury’s decision as to whether (a) to convict and (b) to vote for death. A defendant charged with the murder of a white person was shown to be more than four times more likely to be sentenced to death than a person convicted of killing a black person.

Even in the selection of a jury, racism all too often rears its ugly head. A key issue in jury selection is the attitude of a juror towards the death penalty. Supreme Court authority, Witherspoon v. Illinois 391 U.S. 510 (1968) and Morgan v. Illinois 504 U.S. 719 (1992) means that a person who displays doubt about the death penalty cannot automatically be excluded from a jury. In practice, however, prosecutors will do all they can to ensure that a black person who is believed to be more reluctant to sentence to death should be removed from the jury. Prosecutors though are careful to try to cover up their racist tactics. Occasionally the veil slips. In 2005 the case of Miller-El v. Dretke 545 U.S. 231 (2005) disclosed the use of a manual by the Dallas County Prosecutor’s Office which gave tips to state prosecutors on how to select juries devoid of black members without it being too obvious that they were systematically using racist tactics to exclude black jurors.

The incidence of mental illness amongst inmates on death row is a serious, misunderstood and much under-estimated problem. Many inmates suffer from what we would call ‘intellectual deficit’ or who have a ‘learning disability’ but which is still often referred to in the United States as ‘mental retardation’. This refers to those who have suffered the arrested development of the mind during their childhood and it is a condition that must have existed since before the person turned 18 in order to apply. It is generally applied only to those with an IQ below 70. Since the US Supreme Court decided Atkins v. Virginia 536 U.S. 304 (2002) it has been unlawful to execute those suffering from mental retardation. In 2008, and after 26 years of trying, Texas finally gave up on its attempts to execute Johnny Paul Penry who had a mental age of seven and who was first convicted in 1982 of murder. His death sentence was overturned twice by the Supreme Court, Penry v. Lynough 492 U.S. 302 (1989) and 532 U.S.782 (2001) (Penry II) and for a third time by the Texas Court of Criminal Appeals 178 S.W. 3d 782 (2005).

And as if all that wasn’t bad enough, it is not hard at all for an innocent man or woman to find themselves on death row.

And as if all that wasn’t bad enough, it is not hard at all for an innocent man or woman to find themselves on death row. We know this because since 1976 no less than 142 people convicted and sentenced to death have been exonerated and taken off death row. In 2009 alone there were nine such exonerations. This means that the defence have been able to satisfy the same prosecution lawyers – who spent a lot of time and money putting these guys on death row in the first place – that in fact they have got the wrong person. Advances in forensic science such as DNA testing have greatly assisted and resulted in a number of exonerations. Cases such as that of Carlos DeLuna, the victim of a simple mistaken identification; or Cameron Todd Willingham convicted in Texas of the murder of his own children on what appears to be very dubious evidence of arson; and Troy Davis in Georgia convicted on eye-witness evidence, most of which had been retracted by the time of his execution amid allegations of police misconduct; such cases scare the life out of supporters of the death penalty who are terrified of being confronted with clear evidence that an innocent man has been executed.

So you may conclude that what passes for justice in capital cases in the United States is a mockery of that concept and an affront to human dignity. But you are not powerless to do something about this situation. Amicus is a legal charity set up in 1992 and which aims to place interns with US lawyers working for those on death row. Our interns assist US attorneys handling capital cases. Most are post-conviction but some are pre-trial. You may be asked to interview jurors from a client’s capital trial (something that would land you in jail in the UK). You may be asked to interview members of your client’s family or friends about his background and upbringing to try to establish if he has a mental retardation claim. You will probably get the chance to visit your client on death row, not something for the faint hearted. You can assist in many ways including helping the lawyers to sort out and put in order huge volumes of case papers, to summarise transcripts and assist with legal research. Whatever you do you will be helping someone on death row who urgently needs the assistance of good lawyers.

Internships have to be self-financed because Amicus does not have funds to help in this regard. You have to commit to a minimum of three months but many interns go for longer. You need to be over 21 at the date you begin, although you can apply before that date. You need to have finished your undergraduate law studies. A driving licence is pretty much essential if you are going to be able to do work such as tracking down and interviewing potential witnesses or hunting for obscure records in some county official’s office that could assist your client’s case. Internships are not for everyone. You will be interviewed by Amicus staff and former interns for your suitability. We have a duty to you and those you will be working with to try to ensure that you will fit in and be able to cope on your own, a long way from home in unusual and potentially challenging circumstances. Having said that, internship interviews are not competitive. There is no quota for each year. If you seem to have the right motivation and character you will be accepted. If we have more interns it means we can forge relationships with more legal offices doing this crucial work and that means being able to have a greater impact. It is not to be denied that an Amicus internship will look good on your CV. If you are keen to get involved in human rights work as a lawyer in this country, having done such an internship is clear evidence of your commitment to such work. It does not matter what type of law you wish to practise in due course. Someone planning to do corporate law is as welcome as someone who plans to do legal aid work. The key thing is that as lawyers we can make a difference. As lawyers we are trained to ask the questions and make the submissions that our clients would do themselves if they had our training and ability. You have that training and are developing those skills. If you believe in the right to a fair trial and due process, and if you believe that as a lawyer you are there to make a difference, then please consider applying for an internship with Amicus. It is not a decision you are likely to regret.

More details can be found on the Amicus website along with a blog by a current intern so you can get an idea of what they have experienced.

This article was originally published in March 2013.

Mark George QC at Garden Court North Chambers in Manchester.

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