Making Sure We Are Getting It Right: Repairing “The Machinery of Death” by Narrowing Capital Eligibility

Ann E. Reid *

Can we fix the American capital punishment system? Do we want to? Or should we simply abolish the death penalty altogether, as so many countries encourage us to do?[1] These were questions that many Americans asked themselves over the course of 2014 as botched execution followed botched execution, and as multiple innocent men were exonerated after sitting on death row for years.[2] Despite the best efforts of the members of the federal and state departments of justice, we continue to face serious constitutional questions when we look at death penalty-related issues, including the estimated rate of false convictions,[3] the disproportionately high exoneration rate for death penalty inmates,[4] racial, social, and geographical disparities in capital conviction rates,[5] and the complicated and messy process of execution itself.[6]

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*   J.D. Candidate 2016, University of Richmond School of Law. B.A., 2013, University of Virginia. I would like to thank Kristina Ferris for her thoughtful comments and suggestions throughout the writing process, and the rest of the University of Richmond Law Review staff and editorial board for providing me with this opportunity.

[1].    Cap. Punishment Project, ACLU, How the Death Penalty Weakens U.S. International Interests 6–7 (2004), available at https://www.aclu.org/files/FilesPDFs/ idp_report.pdf.

[2].    See, e.g., Michael Biesecker, Innocent NC Inmate Free After 30 Years, WFLA.com, http://www.wfla.com/story/26444799/nc-inmate-to-adjust-to-life-outside-after-30-years (last updated Sept. 18, 2014); Mark Gillispie, Judge Dismisses Two Men Charged in 1975 Slaying, Ohio.com (Nov. 21, 2014, 10:00 AM), http://www.ohio.com/news/break-news/jud ge-dismisses-two-men-charged-in-1975-slaying-1.543007; Michael L. Radelet, Examples of Post-Furman Botched Executions, Death Penalty Info. Ctr. (July 24, 2014), http://www. deathpenaltyinfo.org/some-examples-post-furman-botched-executions.

[3].    Samuel R. Gross et al., Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death, 111 Proc. Nat’l Acad. Sci. 7230, 7234–35 (2014).

[4].    Samuel R. Gross & Barbara O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical Legal Stud. 927, 942 (2008); Samuel R. Gross & Michael Shaffer, Nat’l Registry Exonerations, Exonerations in the United States, 1989–2012 19 (2012) (finding that between 1977 and 2004, fewer than 0.1% of prisoners had death sentences, yet 12% of all exonerations occurred in capital cases).

[5].    See Scott Phillips, Status Disparities in the Capital of Capital Punishment, 43 L. & Soc’y Rev. 807, 830–31 (2009) (racial and social disparities); see also Scattered Justice: Geographic Disparities of the Death Penalty, ACLU (Mar. 5, 2004), https://www.aclu.org/ capital-punishment/scattered-justice-geographic-disparities-death-penalty (geographical disparities); The Clustering of the Death Penalty, Death Penalty Info. Ctr., http://www. deathpenaltyinfo.org/clustering-death-penalty (last updated Jan. 1, 2013) (geographical disparities).

[6].    See Radelet, supra note 2.