Since 1976, when it reinstated capital punishment, the [United States Supreme] Court has tried to improve the odds that states will carry it out fairly and justly by
establishing a series of rules, or constitutional regulations, intended to limit the use of the death sentence to instances where the punishment fits both the crime and the criminal.
Since 2002, offenders with intellectual disabilities (mental retardation) cannot be put to death, because of, among other things, their “diminished capacities to understand and process information.” Since 2005, juvenile offenders cannot be executed because of their “underdeveloped sense of responsibility.” Since 2008, murder is the only crime for which a convicted offender can be put to death, and not just any murder. To warrant a death sentence, an offender must have displayed what the Court called “extreme culpability” with “a consciousness materially more depraved” than that of a typical murderer—for example, by brutally killing more than one victim.
But some of the rules have not solved the problems they were meant to. They increase the
arbitrariness and unfairness of who gets sentenced to death. In addressing the widespread problem of ineffective counsel for people charged with murder who might get a death sentence, for example, the Court set the bar so low that it has allowed courts to tolerate what one federal judge called “abysmal lawyering” in capital cases. In many instances, lawyers were drunk or fell asleep during trials in which their clients were convicted and sentenced to death.
The discredit is profound when someone sentenced to death is later
exonerated, as has happened a hundred and fifty-two times in the past forty-two years. But it is indelible when a state
executes someone who should never have been sentenced to death under the current rules. As Robert J. Smith, Sophie Cull, and Zoë Robinson documented in a
report published last year, eighty-seven of the hundred people executed in the United States between the middle of 2011 and the middle of 2013 had one or more traits that a court is supposed to regard as reducing blameworthiness. Fifty-four had been diagnosed with or showed symptoms of an acute mental illness that disrupted their thinking and diminished their ability to cope. Fifty had suffered a serious childhood trauma, like chronic homelessness or sexual molestation. Thirty-two had intellectual impairments, like a traumatic brain injury or a significant cognitive deficit. The authors of the report speculated that failures on the part of the defense lawyers kept juries from learning about mitigating traits and taking account of them, as the law required them to.
That is what happened, basically, in the case of Jeffrey Landrigan. The Arizona judge who presided over the trial—and, under the state’s rules at the time, decided on his punishment—later
submitted an affidavit on his behalf to the Arizona Board of Executive Clemency. She said that, if she had known about mitigating factors that his lawyers never presented, like his organic brain damage and the impact of fetal alcohol syndrome on his behavior, she would not have sentenced him to death.
Source: The New Yorker, Lincoln Caplan, April 15, 2015. Mr. Caplan, a former New Yorker staff writer, is a senior research scholar at Yale Law School and the author of five books about the law.
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