DEATH AND TAXES

By MICHAEL C. DORF

Wednesday, Jun. 21, 2000

For the first time in over a generation, abolition of the death penalty looks like a real possibility in many American states. In January, George Ryan, Illinois' Republican Governor and a long-time death penalty supporter, declared a moratorium on executions. Ryan's faith in the system was shaken by the exoneration of several death row inmates. Even Texas Governor George W. Bush - who blithely asserts that no innocents were executed on his watch - recently stayed an execution temporarily to allow for DNA testing.

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The country's new focus on the death penalty is a cause for optimism. But it is not enough. The same problems that have increasingly caused us to question our system of capital punishment also infect the criminal justice system more generally. And these problems will not be solved unless we spend more tax dollars to make the system fairer and more just.

As the late Supreme Court Justice Harry Blackmun chillingly put it, "the machinery of death" is in dire need of repair. But so too is the entire criminal justice factory.

How Different Is Death?

The Supreme Court, in requiring special procedures in capital cases, has often asserted that "death is different" from other punishments. But how different is death, really? The Court has emphasized that death is an especially severe, and an irreversible, punishment. (Belated exoneration does a dead person no good). But while executing an innocent is abhorrent, long-term imprisonment of an innocent is plenty awful, too. The loss of liberty alone is devastating - to say nothing of the degradation and sexual abuse by fellow inmates that often accompany it. And it is only hyperbole to say that a life sentence can be "reversed"; an innocent inmate released after twenty years of wrongful imprisonment would surely disagree.

Moreover, it is important to remember that abolition of the death penalty would likely mean that many of the people who formerly would have been wrongly put to death would instead be wrongly incarcerated. Should we congratulate ourselves if innocents are no longer executed - but instead are "only" imprisoned for life?

A New Study Shows Systemic Problems

A painstaking new study by James Liebman, Jeffrey Fagan, and Valerie West paints a bleak picture of the death penalty since states rewrote their laws in response to the Supreme Court's 1972 ruling in Furman v. Georgia. Of the nearly 6,000 death sentences imposed between 1973 and 1995, just over 300 (barely five percent) were carried out during that period.

That's principally because most of the sentences proved to be illegal. Over two-thirds were reversed because of serious flaws in the guilt or sentencing determination. Strikingly, elected state judges under pressure to appear tough on crime were responsible for most of the reversals - suggesting the mistakes were grave errors, not mere technicalities.

The two leading flaws that inspired reversal were government misconduct - including deliberate suppression of potentially exculpatory evidence - and inadequate representation by lawyers who conducted no factual investigation, failed to cross-examine any government witnesses, and/or presented no evidence of their own. Neither flaw is unique to capital cases.

Government misconduct tends to occur most when police and prosecutors are under intense political pressure to solve crimes. In jurisdictions with a death penalty, this pressure is typically felt most acutely in capital cases. However, eliminating the death penalty would not eliminate that pressure, but would only shift it to cases where the penalty would be life imprisonment. The same gruesome murder, with the same sympathetic victims, would tempt the government to cut the same corners.

The problem of inadequate representation is also particularly acute in, but hardly special to, capital cases. A weak lawyer can always damage a defense by failing to investigate facts surrounding the alleged crime. In a capital case, a weak lawyer can also damage his client by failing to collect evidence that might convince the sentencer, after reaching a guilty verdict, not to impose death. The extra work required to defend a capital case effectively means that taking on these cases is even more of a financial hardship for a conscientious lawyer - who will earn considerably less money defending indigent defendants than engaged in almost any other line of legal work. Low rates deter many skilled lawyers from taking non-capital cases, too. Funding for independent factual investigation is often non-existent.

Would abolishing the death penalty free up resources to pay lawyers and their investigators a more reasonable wage in non-capital cases? Only a little. As the study points out, the total cost of each capital case may be as much as five times the total cost of life imprisonment. But capital cases are only a small fraction of total felonies. For example, during the period of the study, nationwide there were 6,000 death sentences, but a staggering number of homicides - about 500,000. Abolition thus would not come close to freeing up sufficient funds to ensure fair procedures system-wide.

Abolition of the death penalty will not solve our criminal justice system's problems. Only substantial increases in compensation for assigned criminal defense work can begin to do that. Thus, even if abolition occurs, while innocent defendants will no longer pay for our system's failures with their lives, many will still pay with their liberty.


Michael C. Dorf is vice dean and professor of law at Columbia University, where he teaches civil procedure and constitutional law. He is the co-author, with Laurence H. Tribe, of the book "On Reading the Constitution."

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