MOST DESERVING OF DEATH? AN ANALYSIS OF THE SUPREME COURT’S DEATH PENALTY JURISPRUDENCE
by Kenneth Williams. Burlington, VT: Ashgate, 2012. 216pp. Cloth $99.95. ISBN; 978-0-7546-7885-4.
Reviewed by Mary Welek Atwell, Department of Criminal Justice, Radford University. matwell [at] radford.edu
In 1972, in Furman v. Georgia, the Supreme Court found that the death penalty, as applied, was unconstitutional on the grounds that the punishment’s use was “arbitrary and capricious.” Kenneth Williams‘s book, Most Deserving of Death? An Analysis of the Supreme Court’s Death Penalty Jurisprudence, demonstrates that even after efforts over the last forty years to reduce the randomness of capital punishment, its application remains arbitrary. While the Court has narrowed the crimes for which death is eligible, limited the classes of individuals who might be executed, and required certain procedures for carrying out capital cases, the system remains dysfunctional. Few would argue that capital punishment serves as a deterrent; most who have studied the policy would concede that it is more expensive than long prison terms. Aside from retribution, state-inflicted death would seem to serve little purpose, yet it has persisted and there are those on the Supreme Court who warmly defend its existence. Although Williams claims his book makes a case neither for nor against the death penalty, he makes clear that, to paraphrase Justice Blackmun, tinkering with the machinery of death has been unsuccessful.
Williams divides the fairly short book into nine chapters, discussing the issues usually considered relevant to analyzing the death penalty. As a Texas attorney who has represented a number of death row clients, he intersperses the text with stories of those whose cases provide sometimes startling examples of injustices in the system. The issues are familiar, but the accumulation of problems reminds even those familiar with the scholarship of capital punishment that many wrongs occur and that the remedies are often few and inadequate. Discussing inadequate legal representation, for example, Williams notes both the pervasiveness of the problem and the high bar the Court has set for defendants to find relief after they have been denied appropriate assistance of counsel. In Wiggins v. Smith, the Court seemed to establish the duty of defense lawyers to investigate their clients’ background for its use as mitigation in the sentencing phase of a capital case. However, in the decades since Wiggins was decided few claims of ineffective assistance of counsel in the most active death penalty circuits have been upheld. In fact, in the 5th Circuit (which includes Texas) and in the 11th Circuit, fewer such appeals were successful after Wiggins than before. It seems possible that the Court’s jurisprudence, at least in the case of appeals based on ineffective representation, has had little practical effect on the outcome of actual capital trials. At the end of each chapter, Williams offers suggestions that – short of abolition – might improve the administration of the death penalty. In the case of inadequate counsel, he [*285] suggests that relieving the burden of proving that his case was prejudiced by an attorney’s failures might be better for defendants, but then he concludes that as long as appellate courts can decide that there was sufficient evidence to convict, regardless of the attorney’s actions, the problem will not be solved.
There is ample evidence of racial disparity in capital punishment – the race of the victim is strongly correlated with the death penalty. In McCleskey v. Kemp the majority of the Court refused to act on the data showing systemic racial bias in the administration of capital punishment. As a result, the only way a defendant can pursue such a claim is if he can demonstrate that racial prejudice infected his or her individual case, an almost impossible standard. Here again, few remedies seem to be feasible. In federal capital cases, juries are told not to consider race in their deliberations and required to certify after reaching their verdict that race was not an aggravating factor. But such a procedure does not address the possibility that prosecutors would be more likely to seek the death penalty with a minority defendant. Nor do Batson challenges, intended to limit the racially biased use of peremptory challenges or Racial Justice Acts requiring the prosecution to prove the lack of bias in bringing capital charges protect against a prosecutor who offers spurious, non-racial reasons for his decisions.
The state of Texas executed Cameron Todd Willingham in 2004 for allegedly killing his two young daughters in an arson fire at their home. Subsequent expert investigations made a strong case that there was no arson – no crime – but that the fire had started accidentally. If true, that report would have established that an innocent person had been executed. Rather than following the facts to their conclusion, Governor Rick Perry fired the arson experts and avoided confronting the truth about the Willingham case. There are a number of examples of the execution of people who were likely innocent of the crime for which they were wrongfully convicted. In Herrera v. Collins several justices wrote that the execution of an innocent person would be “perilously close to simple murder.” Yet, the hurdles for a defendant to raise a claim of innocence are extremely high and the opportunity to bring such a matter into federal court is thwarted by the procedural requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA). Many would argue that the possibility of executing an innocent person is largely responsible for the decline in support for capital punishment as manifested in public opinion, in abolition by several state legislatures in recent years, and in fewer death sentences and executions nationwide. However, short of abolition, there does not seem to be any way to ensure that only the truly guilty will suffer the penalty of death. Williams details the obstacles to raising issues of innocence on appeal, implying that, despite the arguments of death penalty supporters that exonerations prove that the system works, it is by no means certain that only the guilty (or those most deserving of death) face execution.
Issues of mental competency and mental illness also raise questions of whether those who face the death penalty are the most blameworthy or the more vulnerable. Williams explains that although the Supreme Court has [*286] established limitations on the execution of the mentally retarded and the insane, the procedures and the guidelines for determining mental retardation and mental illness are left to the states. Thus it was possible that Darryl Atkins, who gave his name to the Supreme Court case that outlawed capital punishment for the mentally retarded, could be again sentenced to death in Virginia when a jury determined that he was not, after all, mentally retarded. Other issues involving whether a state may medicate an inmate to make him sane enough to be executed and how to deal with “volunteers,” those who forego their appeals and ask for execution, present thorny issues that have not yet been decided by the Court.
In a very useful chapter on international law and the death penalty, Williams traces the diplomatic embarrassment caused by the American attachment to capital punishment in the face of rights-based opposition by most of the world’s democracies. He also considers the matter of the execution of foreign nationals in the United States, the rulings of the International Court of Justice calling the US to task for those punishments, and the contradictions between the provisions of human rights treaties to which the US is a party and the refusal of the Supreme Court to give effect to those treaties.
One other chapter of particular interest offers an implicit dialogue between Williams and Justice Scalia. In his usual provocative way, the Justice has stated that any judge who opposes capital punishment should retire from the bench. Williams constructs a number of elegant arguments in response to this position. And, it seems, makes the better case.
Although there is little that is new or totally original in Most Deserving of Death and at $100 per copy it is likely that most purchasers will be libraries, Williams brings together a strong brief to support the assertion that long after Furman v. Georgia, the application of capital punishment does not single out only those “most deserving of death,” but remains arbitrary and capricious.
Batson v. Kentucky, 476 U.S. 79 (1986).
Furman v. Georgia, 408 U.S. 238 (1972).
Herrera v. Collins, 506 U.S. 390 (1993).
McCleskey v. Kemp, 481 U.S. 279 (1987).
Wiggins v. Smith, 539 U.S. 510 (2003).
Copyright 2013 by the author, Mary Welek Atwell.