In a landmark study of capital cases from 1973 through 1995, 7 out of every 10 cases (68%) that were fully reviewed by the courts had serious, reversible error.[i]  Although state courts threw out 47% of the capital convictions due to such errors, 40% of the remaining death sentences were found also to have serious error upon federal review.[ii]  The most common errors prompting reversal of death sentences were “egregiously incompetent defense lawyers” and suppression of exculpatory evidence by prosecutors or the police.[iii]  At the same time, death sentences are disproportionately imposed on people of color, with African Americans comprising more than 40% of today’s death-row inmates while constituting only 12% of the national population.[iv]  The utter failure to provide capital defendants with adequate legal representation and a fair trial, as well as the alarming racial disparities pervading death sentences, leads to an incontrovertible truth: the death penalty is a “broken system.”[v]

            Despite these grave concerns about the reliability of capital convictions, federal legislation, most prominently the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), and U.S. Supreme Court decisions interpreting AEDPA have significantly limited access to federal review of state court convictions.  As a result, defendants who have suffered serious constitutional violations, such as inadequate defense counsel, racially discriminatory jury selection, and suppression of exculpatory evidence, are left with no recourse.  The constraints on the federal courts to serve as a final check on state capital convictions are particularly damning for prisoners asserting claims of actual innocence when we know with certainty that defendants have been, and will be, wrongfully convicted of capital crimes.  In fact, as of August of this year, 130 death-row inmates from 26 states have been officially exonerated upon proof of innocence and released from custody after serving years (often decades) on death row.[vi]  The conviction and execution of innocent defendants is not only a moral travesty, but also a disservice to the community’s need for justice and public safety.

            The death penalty is one aspect of the criminal justice system that society cannot afford to have broken.  There is simply no remedy for the execution of defendants who were not afforded all of their constitutional rights or, even worse, are innocent of the crimes charged.  Just this past year, Justice Kennedy opined that “[w]hen the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”[vii]  Because “death is different,” there is an even greater urgency for the federal government to implement the following reform proposals in order to protect the constitutional rights of each individual at risk of execution.  The guiding principle behind these recommendations is the need to administer the death penalty in a fair and equitable manner with assurances of adequate and fully-funded legal representation and checks within the system to remedy constitutional violations and serious, reversible errors.  While all of these recommended proposals are essential for a fair and equitable death penalty system, there are three in particular that should be a priority for Congress and the new administration in the immediate future: 

• Stay all federal executions and place a moratorium on federal capital charges pending a thorough data collection and analysis of racial disparities, the adequacy of legal representation, and other inequities in the death penalty system;
• Create and increase funding for defender organizations that provide post-conviction representation and are independent of the judiciary; and
• Amend the habeas-related provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the USA PATRIOT Improvement and Reauthorization Act of 2005 (PIRA), so that federal courts are more accessible to prisoners asserting claims of constitutional violations with less deference to prior decisions.