The failure to provide adequate counsel to capital defendants and people sentenced to death is a defining feature of the American death penalty. Whether a defendant will be sentenced to death typically depends on the quality of his legal team more than any other factor.

Some lawyers provide outstanding representation to capital defendants. But few defendants facing capital charges can afford to hire an attorney, so they are appointed lawyers who are frequently overworked, underpaid, and inexperienced in trying death penalty cases. 

Capital cases are especially complex, time-intensive, and financially draining. Lawyers representing indigent capital defendants often face enormous caseloads, caps on fees, and a critical lack of resources for investigation and expert assistance. Too often they fail to adequately investigate cases, call witnesses, and challenge forensic evidence.^{7 Stephen B. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer“, 103 Yale Law Journal 1835, 1835, 1843 (1994).} Capital defense lawyers have slept through parts of trial, shown up in court intoxicated, or done no work to prepare for sentencing.^{8 R. Rosie Gorn, “Adequate Representation: The Difference Between Life and Death,” American Criminal Law Review (2018).}

Few states provide enough funding for capital defense counsel, and most death penalty states don’t require lawyers to meet the minimum training and experience guidelines set by the American Bar Association.^{9 American Bar Association, “Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases” (2003).}

Inadequate defense lawyers contribute to wrongful convictions and death sentences, and by failing to object at trial, they make it harder to correct errors on appeal. After that first appeal, there’s no right to counsel. That leaves people sentenced to death with little hope for relief in postconviction proceedings, where they have to present new evidence and navigate complicated procedural rules.^{10 ACLU, “Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America” (Dec. 2010).}

The death penalty in America is a “direct descendant of lynching.” Racial terror lynchings gave way to executions in response to criticism that torturing and killing black people for cheering audiences was undermining America’s image and moral authority on the world stage.^{11 Stephen B. Bright, “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty“, 35 Santa Clara Law Review 433, 439 (1995).}

By 1915, court-ordered executions outpaced lynchings for the first time. Two-thirds of people executed in the 1930s were black, and the trend continued. African Americans’ share of the South’s population fell to just 22% by 1950, but 75% of people executed in the South were black.^{12 James W. Clarke, “ Without Fear or Shame: Lynching, Capital Punishment and the Subculture of Violence in the American South,” 28 British Journal of Political Science 269, 287 (Apr. 1998).}

In 1972, the Supreme Court struck down the death penalty because it looked too much like “self-help, vigilante justice, and lynch law.”^{13 Furman v. Georgia, 408 U.S. 238, 308 (Stewart, J., concurring).} “If any basis can be discerned for the selection of these few to be sentenced to die,” the Court wrote in Furman v. Georgia, “it is the constitutionally impermissible basis of race.”

Southern lawmakers accused the Court of “destroying our system of government” and quickly passed new death penalty laws. “There should be more hangings. Put more nooses on the gallows,” proponents of Georgia’s new law insisted. “It wouldn’t be too bad to hang some on the court house square, and let those who would plunder and destroy see.”^{14 David Garland, Peculiar Institution: America’s Death Penalty in an Age of Abolition 232, 247-48 (2010).} The Supreme Court upheld Georgia’s new death penalty statute in 1976,^{15 Gregg v. Georgia, 428 U.S. 153, 184 (1976).} and racial bias in the death penalty persisted.

A decade later, the Court considered statistical evidence presented in McCleskey v. Kemp showing that Georgia defendants were more than four times as likely to be sentenced to death if the murder victim was white than if the victim was black. The Court accepted the data was accurate, but it refused to reverse the death sentence because it concluded that racial bias in sentencing is “an inevitable part of our criminal justice system.”^{16 McCleskey v. Kemp, 481 U.S. 279, 312 (1987).}

Race still influences who is sentenced to death and executed in America today. The data in Georgia has actually gotten worse: people convicted of killing white victims are 17 times more likely to be executed than those convicted of killing black victims.^{21 Death Penalty Information Center, “Study Finds Staggering Race-of-Victim Disparities in Georgia Executions and that the Death-Penalty Appeals Process Makes Them Worse“ (Sept. 18, 2019).}

In capital trials, the accused is often the only person of color in the courtroom. Illegal racial discrimination in jury selection is widespread, especially in the South and in capital cases—thousands of black people called for jury service have been illegally excluded from juries. 

Southern lawmakers today invoke “states’ rights” to defeat anti-discrimination bills just like they did to block federal anti-lynching laws. And regional data demonstrates that the modern death penalty in America mirrors the racial violence of the past.^{22 Stephen B. Bright, “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” 35 Santa Clara Law Review 433, 439 (1995).}

In 1976, the Supreme Court reinstated capital punishment so long as it is imposed only on people who “deserve” it. The Court has since barred the death penalty for certain groups of people who are not culpable enough to “deserve” execution.

Intellectual Disability

In 2002, the Court in Atkins v. Virginia barred the execution of people with intellectual disability because they “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct” and because “their disabilities in areas of reasoning, judgment, and control of their impulses [can] jeopardize the reliability and fairness of capital proceedings.”^{26 Atkins v. Virginia, 536 U.S. 304 (2002).}

But because the Court “le[ft] to the State[s] the task of developing appropriate ways to enforce the constitutional restriction,” some states created narrow definitions that permit the execution of people who meet the clinical criteria for intellectual disability.^{27 Death Penalty Information Center, “Continuing Issues: Determining Intellectual Disability After Atkins.”}

Children

Three years after Atkins, the Court applied the same reasoning in Roper v. Simmons to bar the execution of children because “juvenile offenders cannot with reliability be classified among the worst offenders.”^{28 Roper v. Simmons, 543 U.S. 551 (2005).}

“Their own vulnerability and comparative lack of control over their immediate surroundings mean juveniles have a greater claim than adults to be forgiven for failing to escape negative influences in their whole environment.”

When Roper was decided, 71 people were on death row for juvenile crimes. Two-thirds were people of color, and more than two-thirds of the victims were white.^{29 Victor L. Streib, “The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973-February 28, 2005” (Oct. 7, 2005).}

Mental Illness

Executing people with mental illness presents the same concerns about culpability and reliability that led the Court to bar the death penalty for children and people with intellectual disability. People who have a mental illness or disability that significantly impairs their cognitive or volitional functioning at the time of the offense should be exempted from capital punishment because they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.

People with mental illness are more vulnerable to police pressure, are less able to give meaningful assistance to their counsel, and are typically poor witnesses. People who have a mental illness that causes delusions are more likely to insist on representing themselves at trial; they are prone to outbursts in front of their juries and some are so heavily medicated that they appear to have no remorse.^{30 American Civil Liberties Union, “Slamming the Courthouse Doors: Denial of Access to Justice and Remedy in America” (Dec. 2010).}

There’s a greater risk that people with mental illness will be executed without review of their convictions or sentences even though the law forbids executing people who are mentally incompetent. Nearly 10% of the people executed since 1976 have been so-called “volunteers” who gave up their appeals,^{31 Death Penalty Information Center, “Execution Volunteers“ (April 23, 2019).} and over 75% of those who waive their appeals suffer from documented mental illness.^{32 John H. Blume, “Killing the Willing: “Volunteers,” Suicide and Competency,” 103 Michigan Law Review 939, 962 (2005).}

Mental health experts estimate at least 20% of people on death row today have a serious mental illness.^{33 Mental Health America, “Position Statement 54: Death Penalty And People With Mental Illnesses” (June 14, 2016).} At least 10% of the people currently sentenced to death nationwide are military veterans, many of whom suffer from documented trauma disorders.^{34 Richard C. Dieter, “Battle Scars: Military Veterans and the Death Penalty,” Death Penalty Information Center (Nov. 2015).}

EJI believes that executing people with mental illness is cruel and misguided. Rather than executing people who are themselves victims of trauma, violent injury, or disease as a symbol of society’s moral outrage about violent crime, we should dedicate our resources to providing mental health care and support that would actually reduce violent crime in our communities.

Deterrence

After more than three decades of research examining whether the threat of a death sentence deters people from committing aggravated murders, there is no reliable evidence that the death penalty deters murder or that it protects police. The National Research Council of the National Academies concluded that studies claiming the death penalty has a deterrent effect are fundamentally flawed.^{35 National Research Council of the National Academies, Deterrence and the Death Penalty 2 (Daniel S. Nagin & John V. Pepper eds., 2012).} Studies have shown that murder rates, including murders of police officers, are consistently higher in states that have the death penalty, while states that abolished the death penalty have the lowest rates of police officers killed in the line of duty.^{36 Death Penalty Information Center, Capital Punishment and Police Safety (2017).}

Geographical Arbitrariness

The likelihood of a death sentence or execution depends more on the county where the crime happened than the severity of the offense. Only 2% of the counties in the U.S. have been responsible for the majority of cases leading to executions since 1976. And only 2% of the counties are responsible for the majority of today’s death row population and recent death sentences. But all state taxpayers have to bear the substantial financial costs of death penalty cases in the handful of counties that cling to this outdated and ineffective policy.^{37 Death Penalty Information Center, “The 2% Death Penalty: How a Minority of Counties Produce Most Death Cases At Enormous Costs to All“ (Oct. 2013).}

Cost

The death penalty is far more expensive than a system in which life imprisonment without parole is the maximum sentence. Sophisticated studies at the state level show that the death penalty costs taxpayers more than life without parole.^{38 Death Penalty Information Center, State Studies on Monetary Costs (2017).} Republicans leading a movement for abolition in some of the most conservative states in the country have condemned the death penalty as an expensive government program that is ineffective in deterring crime.^{39 Reid Wilson, “Red States Move to End Death Penalty,” The Hill (Feb. 4, 2019).}

Distraction

The death penalty draws attention away from effective public safety policies and distorts elections of judges and prosecutors by privileging “tough on crime” rhetoric and candidates. A nationwide survey of police chiefs put the death penalty last among their priorities for reducing violent crime—below increasing the number of police officers, reducing drug abuse, and creating a better economy. Surveyed law enforcement officials said they did not believe the death penalty is a deterrent to murder, and they rated it as one of most inefficient uses of taxpayer dollars in fighting crime.^{40 Death Penalty Information Center, “Smart on Crime: Reconsidering the Death Penalty in a Time of Economic Crisis“ (Oct. 2009).}

Decline

Use of the death penalty and public support for it are declining. New death sentences have remained near record lows since 2015 after peaking at more than 300 per year in the mid-90s. Executions have declined significantly over the past two decades.^{41 Death Penalty Information Center, “The Death Penalty in 2018: Year End Report“ (July 2019).}

Public support for the death penalty has been waning steadily—a record low 49% of Americans said they supported the death penalty in 2016.^{42 Death Penalty Information Center, “Public Support for the Death Penalty Drops Below 50% for First Time in 45 Years“ (Sept. 30, 2016).} 

And the near-universal opposition to capital punishment among 2020 Democratic presidential candidates signifies a major shift from 1992, when Bill Clinton left the campaign trail to oversee an execution in Arkansas. “Smart on crime” policy solutions, including alternatives to the death penalty, are edging out the rhetoric of “tough on crime” even in very conservative states.^{43 Gideon Resnick & Sam Stein, “The 2020 Democratic Field, Minus Joe Biden, Embraces a Death Penalty Moratorium,” The Daily Beast (March 14, 2019).}