Death penalty aff



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Death Penalty Affirmative
the gutters, 2nc Lansing Rnd5, 1AC Practice 10-20, Speech 1ac Ag runoff 8-31 12AM, Speech 1AC CAFOs personal, send cards, 2nr , Con Side, Movements DA, Marijuana Neg, Federalism DA, Court Packing DA, Death Penalty Negative, Aff AT Movements DA

AT: Death Penalty Good

The death penalty is bad—data and 5 warrants.


  • There’s a substantial risk of executing the innocent

  • There’s a clear race bias

  • Arbitrariness

  • Incompetent lawyers

  • LWOP, delay in implementation

Williams 16 [Williams, Kenneth (South Texas College of Law Houston Professor of Law, federal habeas attorney for several Texas death row inmates), Why and How the Supreme Court Should End the Death Penalty, February 18, 2016, Accessible at: https://ssrn.com/abstract=2734250] KL 6-24-20
IN A RECENT OPINION dissenting from the Court’s holding that a certain drug used in Oklahoma and other states to carry out lethal injections was constitutional, Justice Breyer called for full briefing on the issue of the constitutionality of the death penalty itself.1 The decades-long litigation over the constitutionality of execution methods obscured many of the important issues associated with the death penalty. Now that the Supreme Court has brought an end to this litigation, this is an appropriate time to have an honest conversation about whether the United States should continue to employ the death penalty. The time is now ripe to have this conversation because of the declining public support for the death penalty and the difficulty the courts have had in administering it. The purpose of this article is to contribute to the conversation about the constitutionality of the death penalty. This article will begin with a discussion of the declining public support for the death penalty and some of the reasons behind the decline in Part I. Part II pertains to how the legislature and the Supreme Court have attempted to rectify the problems that have plagued the death penalty and why these attempts have largely failed. Given the difficulties the Supreme Court has encountered in trying to fix the death penalty, Part II also assesses the available options moving forward: either continue the attempt to reform and regulate the death penalty or abolish it. The article concludes that abolition is the best option moving forward. Part II, lastly, lays out the doctrinal framework that the Supreme Court has created that would enable the Court to abolish the death penalty. Finally, Part III lists some of the anticipated objections to the Court abolishing the death penalty, the Court’s previous failed attempt to do so, and why abolition is likely to achieve greater public acceptance this time. I. Declining Public Support Public support for the death penalty has drastically declined during the last twenty years. According to a Gallup survey, in 1994, 80% of Americans supported the death penalty.2 In 2014, support for the death penalty was at 60%.3 There are other strong indicia of the public’s declining support for the ultimate punishment. First, the number of individuals sentenced to death by juries and judges has also declined significantly during the past twenty years. In 1994, 311 death sentences were meted out by juries and judges.4 In 2014, only seventy-three death sentences were imposed.5 In 2015, forty-nine individuals received death sentences, a 33% decline from the previous year and the fewest since 1973.6 Even in Texas, the leader among the states in carrying out the death penalty since 1976, far fewer death sentences are being imposed.7 Juries sentenced forty-eight individuals to death in 1999, but only eleven individuals in 2014 and an astoundingly low total of two individuals in 2015.8 Second, there has been a steady, nationwide decline in executions in the last twenty years. Executions have fallen from a high of ninety-eight executions in 1999, to thirty-five in 2014, and twenty-eight in 2015, the lowest number of executions since 1991.9 Third, during the last twenty years, Connecticut, Illinois, Maryland, New Jersey, New Mexico, and New York have abolished the death penalty and the Governors of four other states have imposed moratoriums.10 Finally, fewer Americans believe the death penalty to be morally acceptable. Gallup began to measure public sentiment regarding the morality of the death penalty in 2001. The number of Americans who believe the death penalty to be morally acceptable during this time period has gone from a high of 71% in 2006 down to 60% in 2014.11 Most surprisingly, this decline in public support for the death penalty has occurred despite the public’s rising anxiety over terrorism.12 As discussed below, there are many reasons for the decline in the public’s confidence in the death penalty A. Innocence No issue has had a bigger impact on the public’s attitude towards the death penalty than the possibility of an innocent person being executed. Since 1973, there have been approximately 156 actual exonerations of death row inmates.13 There are currently approximately 3,000 individuals on death rows throughout the United States.14 Researchers estimate that about 4% of those sentenced to death are actually innocent,15 which would mean that there are currently about 120 individuals on death row who may be executed for crimes that they did not commit. Unfortunately, not every death row inmate with strong innocence claims has been exonerated. There have been credible reports indicating that there is a strong possibility that innocent individuals have been executed.16 One such individual is Cameron Todd Willingham, who was convicted and sentenced to death as a result of a fire that killed his three young daughters.17 The state’s case against Willingham consisted primarily of an expert’s conclusion that the fire was deliberately set and that because he was the only adult in the home at the time of the fire, Willingham deliberately started the fire.18 Shortly before Willingham’s scheduled execution, a report by an acclaimed scientist and fire investigator indicated that the fire that killed Willingham’s three daughters was not deliberately set, but was accidental.19 This information failed to convince either the Texas governor or the Board of Pardons and Parole to grant clemency—or even delay Willingham’s execution—and he was put to death.20 Since Willingham’s execution, additional fire investigators have reviewed the case and have determined that the methods used by the state’s trial expert were flawed and that the fire was not the result of arson.21 Nothing can be done to rectify what appears to have been the wrongful execution of Willingham and others. Cases like Willingham’s, combined with the irrevocability of the death penalty and the other problems that plague the death penalty that are discussed later in this article, have played a large role in shaking public confidence in the system. In Herrera v. Collins,22 a majority of the justices of the Unites States Supreme Court agreed that “the execution of a legally and factually innocent person would be a constitutionally intolerable event.”23 The Court, however, has done little to ensure that this is prevented. It has failed to recognize the right of death row inmates to make a stand-alone, actual innocence claim.24 The Court has also held that inmates have no constitutional right to post-conviction DNA testing.25 The Court has also refused to police the states’ clemency process.26 B. Race Another reason for the declining support is the concern over the continued racial disparities in the administration of the death penalty. Racism in the implementation of the death penalty does not appear to be a relic of the past.27 African-Americans continue to be sentenced to death and executed disproportionately. African-Americans constitute roughly 13% of the U.S. population,28 yet they account for about 42% of the death row population29 and approximately 35% of all executions in the U.S. since 1976.30 It is also troubling that the vast majority of those who have been executed killed white victims,31 despite the fact that approximately 44% of murder victims in the United States are African-American.32 Since 1976, 76% of people who have been executed killed white victims.33 Thus, because African-Americans are almost one half of all homicide victims, this means that their killers are, for the most part, not being sentenced to death and executed. Numerous studies have concluded that these disparities are the result of racial discrimination in the administration of the death penalty.34 The most prominent study to reach such a conclusion was the Baldus study, which purports to show a disparity in the imposition of the death penalty in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant.35 The Baldus study took into account 230 variables “that could have explained the [racial] disparities” in capital sentencing “on non-racial grounds.”36 Even after taking account of these variables, the Baldus study found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks and others.37 The study also found that black defendants were 1.1 times as likely to receive a death sentence as other defendants.38 The study concluded that black defendants who kill white victims have a greater likelihood of receiving the death penalty than any other defendant-victim combination.39 The Supreme Court had largely ignored the issue of racial disparities in capital sentencing, but the strength of the Baldus findings forced it to finally confront the issue in 1987. In McCleskey v. Kemp, although the Court accepted the legitimacy of the Baldus study,40 it did not allow the inmate to use the statistics as proof of racial discrimination.41 Rather, the Court held that in order to prevail on a claim of racial discrimination in capital sentencing, a death row inmate would have to prove that the decisionmakers in his specific case acted with discriminatory purpose or that a capital sentencing statute was enacted by the legislature with a discriminatory purpose.42 Not surprisingly, given this onerous standard, no death row inmate has been able to prove racial discrimination in capital sentencing.43 A major reason racial disparities in capital sentencing persist is because those who decide whether the defendant lives or dies are overwhelmingly white: [T]he criminal justice system is the part of American society that has been least affected by the Civil Rights Movement. Many courthouses throughout the country look about the same today as they did in the 1940s and 1950s. The judges are white, the prosecutors are white, and the court-appointed lawyers are white. Even in communities with fairly substantial African American populations, all of the jurors at a trial may be white.44 According to a recent study, 95% of elected state and local prosecutors are white.45 These overwhelmingly white prosecutors make the decision whether to seek death in a particular case. They also have a big influence over who sits on the jury in a capital case. Prosecutors are obviously aware of the fact that many African-Americans perceive the criminal justice system to be biased. As a result, a jury composed of African-Americans is significantly less likely to return a death verdict.46 Therefore, prosecutors have an incentive to remove as many African-Americans from a capital jury as they possibly can, and they often do so through the use of peremptory challenges.47 Several studies have documented the continuing use of peremptory challenges to strike African-Americans from the jury in capital cases.48 In Batson v. Kentucky,49 the Supreme Court outlawed the use of race in the exercise of peremptory challenges. Despite Batson, courts have tended to uphold the prosecutors’ use of peremptory challenges against African-American members of the jury pool because “[r]acebased peremptory strikes are almost always invisible, or at least, as Batson has shown, hard to prove.”50 As long as the prosecutor can articulate a race neutral reason for the strike, the courts will usually reject the defense’s Batson challenge.51 This is so even when the prosecutor offers an absurd reason for striking black jurors, such as the fact that a juror agrees with the verdict in the O.J. Simpson case,52 or that the potential juror has facial hair.53 Despite the continued use of peremptory challenges to remove black jurors from capital cases, the Supreme Court has refused to strengthen Batson. C. Arbitrariness In 1972, the Court struck down the death penalty—despite no prior attempts to regulate it54—primarily because of the arbitrary manner in which the death penalty was imposed at the time.55 The Court began to regulate the death penalty in 1976 with its decision in Gregg v. Georgia. 56 Its foremost goal in doing so was to minimize the arbitrary application of the death penalty. The Justices were troubled by the fact that, in their view, the death penalty “smacks of little more than a lottery system.”57 However, in Gregg, a substantial majority of the Court believed that the death penalty could be imposed less arbitrarily.58 In particular, the Court approved of three safeguards that it believed would minimize arbitrariness: (1) require the jury to consider the circumstances of the crime and the defendant’s background at a separate sentencing hearing;59 (2) limit the sentencer’s discretion by providing guidance as to which aggravating circumstances could warrant the death penalty;60 and (3) an automatic appeals process as a check on arbitrary decision making.61 The decision in Gregg began the modern era of capital punishment in the United States. During this modern era, the Court would closely regulate the death penalty by restricting its use to certain categories of defendants62 and certain crimes and by mandating that the defendant be allowed to present mitigating evidence.63 Despite this effort, the Court’s attempt to restrict the death penalty to those most deserving of death has failed. The death penalty today is as arbitrary as it was when the Court decided Furman. Several Justices who have had to administer the death penalty over the years have acknowledged that the Court’s attempt to regulate the death penalty has been a failure.64 Why does the death penalty continue to be imposed arbitrarily despite almost forty years of regulation by the Supreme Court? There are several reasons. First, as pointed out earlier,65 the racial disparities in every jurisdiction that administers the death penalty66 strongly suggest that it is being imposed in a racially discriminatory manner. Second, only a small fraction of murderers are actually sentenced to death.67 The murders they commit are often less egregious than many defendants who did not receive death sentences.68 Third, gender plays a role in that women are rarely sentenced to death.69 Fourth, geography plays a huge role: Where a defendant killed his victim is extremely important.70 A killer in Indiana is much less likely to be sentenced to death than a similar killer in Texas.71 Even within an active death penalty state, the imposition of the death penalty is heavily dependent on where the killing occurred within a state.72 For instance, a killer in Houston is much more likely to be sentenced to death than a similar killer in Austin.73 Finally, the availability of resources are a crucial factor in whether the death penalty is imposed,74 as some jurisdictions provide more resources for indigent defense than others.75 This is important because defendants who are represented by competent trial counsel are significantly less likely to receive a death sentence.76 In determining who is sentenced to death, the egregiousness of the crime is a much less important factor than the race of the victim and defendant, the gender of the defendant, where the crime occurred, and the quality of defense counsel. D. Incompetent Lawyers The public has learned that it is usually not the heinousness of the crime that causes a defendant to end up on death row. Rather, it is often the quality of the legal representation received that is dispositive.77 Defendants have ended up on death row because their lawyers slept during the trial,78 were drunk and disoriented at trial,79 failed to present important evidence,80 failed to understand the law,81 and because their lawyers simply failed to vigorously defend their clients.82 It is difficult for the public to have any confidence in a system that determines who should live or die when one of the key players in that system, the defense counsel, is incompetent. There are several terrible consequences for capital defendants who receive substandard legal representation. The most serious consequence is that they may be wrongly convicted. Another consequence of bad lawyering in capital cases is the possibility that the defendant will be sentenced to death even though he should not be. There have been numerous defendants who have been sentenced to death because their lawyers failed to present important mitigating evidence to the jury.83 Incompetent trial lawyers also make it difficult for defendants to receive appellate relief because they may fail to make timely objections at trial, thereby relinquishing the ability to preserve error for appeal.84 The Supreme Court attempted to address the problem of incompetent counsel in its decision in Strickland v. Washington.85 In Strickland, the Court held that in order to prevail on a claim that counsel provided ineffective representation, the defendant must prove (1) the counsel’s performance was deficient, and (2) that the defendant was prejudiced as a result of counsel’s deficient performance.86 It is very difficult for a defendant to prevail on a claim of ineffective assistance of counsel. Even if the defendant can prove that counsel’s performance was deficient—which is no easy task—courts often reject claims of ineffective assistance of counsel on grounds that the defendant did not suffer prejudice.87 E. Other Factors Several other factors have contributed to the loss of public confidence in the administration of the death penalty. i. Delay in Implementation The few who are sentenced to death are not likely to be executed. They are more likely to have their sentences overturned or die from natural causes than to be executed.88 “In a word, executions are rare.”89 For the unlucky few who are executed, it takes on average of approximately eighteen years to carry out.90 This delay is attributable to a lengthy appellate process,91 which seeks to ensure reliability and fairness before the ultimate punishment is meted out.92 However, the lengthy delay in carrying out the death penalty undermines the penological justifications for the death penalty, specifically the deterrence rationale.93 The question whether the death penalty actually deters is uncertain.94 There are studies that both support and undermine the deterrence rationale of the death penalty.95 Most would agree that, to be an effective deterrent, executions have to be carried out swiftly.96 Public support has diminished as a result of the lengthy delays. There is also no solution to the problem of lengthy delays as long as we are committed to reliability and fairness. As Justice Breyer explained, “[i]n this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both.”97 ii. Life Without Parole In the past, jurors often voted for death in order to ensure that dangerous defendants remained in jail and were never released on parole.98 Now that most states provide jurors with the option of sentencing the defendant to life without parole (“LWOP”), this concern is eliminated. As a result, jurors are meting out fewer death sentences99 and the public seems to agree with those decisions. In a recent poll, 52% of the public preferred LWOP, whereas 42% preferred the death penalty.100 Even among those who support the death penalty, 29% preferred LWOP. The public is increasingly unwilling to accept the risk of executing an innocent person now that they are assured that the perpetrator will never be released from prison. iii. Religion There was a time when practically every organized religious denomination supported capital punishment.101 That is no longer the case. In fact, most major Christian denominations have announced their opposition to capital punishment.102 Many non-Christian denominations, such as reform Jews and Unitarian Universalists, have also announced their opposition to capital punishment.103 The religious denomination that opposes the death penalty most aggressively has been the Catholic Church. The Catholic Church’s opposition is based on its belief in the sanctity of human life.104 Pope John Paul II has stated that all human life deserves respect, “even [the lives] of criminals and unjust aggressors.”105 According to the Pope, since human life “from the beginning . . . involved the ‘creative action of God’ and remains forever in a special relationship with the Creator, only God is the master of life.”106 Therefore, the government ought not go to the extreme of executing the offender except in cases of absolute necessity; in other words, when it would not be possible otherwise to defend society. Today, however, as a result of steady improvements in the organization of the penal system, such cases are very rare, if not practically non-existent.107 These religious objections, especially the Catholic Church’s work against the death penalty, have likely had an impact on the declining support for the death penalty in the United States.108
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