Has the “Machinery of Death” Become a Clunker?

Stephen F. Smith *

In 1994, Justice Blackmun famously announced that he would no longer “tinker with the machinery of death.”[1] The timing of that announcement said as much about the state of America’s death penalty on the eve of the new millennium as it did about how he wished to be remembered when he retired from the Supreme Court of the United States later that same year.

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 *     Professor of Law, University of Notre Dame.

[1].    Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun, J., dissenting).


Death as a Bargaining Chip: Plea Bargaining and the Future of Virginia’s Death Penalty

John G. Douglass *

Virginia now averages less than a single death sentence each year,[1] a far cry from its not-too-distant history as the second most active death penalty state in the nation.[2] The numbers alone tempt us to forecast the death of Virginia’s death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.

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    Professor of Law, University of Richmond School of Law. My thanks to David Johnson and Maria Jankowski for helpful insights. Thanks also to D.J. Geiger, the principal author of the Virginia Indigent Defense Commission Report, see infra Part I.D, for her thoroughness in assembling and organizing data on capital indictments. And thanks to Laura Joseph for very capable assistance with research.

[1].    Since 2004, Virginia courts have sentenced nine people to death. Death Sentences in the United States from 1977 by State and by Year, Death Penalty Info. Ctr., http:// www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008 (last visited Feb. 27, 2015) [hereinafter Death Sentences by State/Year].

[2].    Virginia has executed 110 people in the post-1976 “modern” era of the death penalty. Number of Executions by State and Region Since 1976, Death Penalty Info. Ctr., http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited Feb. 27, 2015) [hereinafter Executions by State]. Prior to 2014, that placed Virginia second behind Texas’s 508 executions. Id. In 2014, Oklahoma executed three individuals and now occupies second position with 111 executions. Id.


Interrogation Policies

Brandon L. Garrett *

In Miranda v. Arizona, the Supreme Court discussed at length actual police policies, manuals, and training on interrogations to explain the need for the well-known warnings the Court required to precede custodial interrogations.[1] The Court noted: “A valuable source of information about present police practices . . . may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics.”[2] The Court cited to studies of police practices,[3] and focused on the Fred E. Inbau and John E. Reid manual on interrogations, first published in 1962, and still the authoritative treatise.[4] The Court described “tactics . . . designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty.”[5] Those tactics ranged from “Mutt and Jeff” routines to outright deception and trickery.[6]

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* © Brandon L. Garrett, 2014. Professor of Law, University of Virginia School of Law. Many thanks to Gregory DeClue, Richard Leo, Eve Brensike Primus, and James Trainum for their input, encouragement, and invaluable comments on earlier drafts. I particularly thank Christine Shu, Aurora Heller, and the students of the Virginia Innocence Project Student Group (VIPS), whose remarkable work and tireless efforts in obtaining policies from Virginia law enforcement made this research possible.

[1].    384 U.S. 436, 444, 448–49 (1966); see Richard A. Leo, The Impact of Miranda Revisited, 86 J. Crim. L. & Criminology 621, 672 (1996) (“[T]he Miranda rights have been so entrenched in American popular folklore as to become an indelible part of our collective heritage and consciousness.”).

[2].    Miranda, 384 U.S. at 448; see Seth W. Stoughton, Policing Facts, 88 Tul. L. Rev. 847, 855 (2014) (discussing the manuals, reports, and texts on police interrogation practices relied upon by the Supreme Court in Miranda).

[3].    Miranda, 384 U.S. at 448 & n.8 (citing various studies of police practices, including Wayne R. LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash. U. L.Q. 331, 335 (1962)).

[4].    Id. at 448–49 & n.9 (“The methods described in Inbau & Reid, Criminal Interrogation and Confessions . . . have had rather extensive use among law enforcement agencies. . . .”); Barry C. Feld, Behind Closed Doors: What Really Happens When Cops Question Kids, 23 Cornell J.L. & Pub. Pol’y 395, 412 (2013) (“The Reid Method remains the leading training program in the United States and underlies most contemporary interrogation practice. . . .”). See generally Fred E. Inbau et al., Criminal Interrogation and Confessions (5th ed. 2013) (describing methods of interrogation).

[5].    Miranda, 384 U.S. at 450.

[6].    Id. at 452–55. The Supreme Court reexamined police interrogation policies in Missouri v. Seibert, 542 U.S. 600, 609–11 & n.2 (2004) (addressing police strategies for pre- and post-Miranda warning statements).


The Future of the Death Penalty in the United States

Richard C. Dieter *

Making predictions about the future is always a risky venture. There are, however, concrete reasons to believe that the story of the death penalty in the United States may be approaching its final chapter. In this essay I will identify strong trends that support this prognosis. I will also underscore the inherent problems with the death penalty that have placed it on a collision course with some of our country’s most cherished ideals. These conflicts will likely hasten the demise of the death penalty.

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    Executive Director of the Death Penalty Information Center, Washington, D.C. Adjunct Professor, Columbus School of Law, Catholic University of America.


Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial

Mary Kelly Tate *

This symposium essay is a thought experiment—a “back to the future” re-imagining of the capital murder trial of Tommy David Strickler, an indigent man deemed borderline mentally retarded.[1] In 1990, Strickler was convicted and sentenced to death for the robbery, abduction, and murder of a young African American woman.[2] On July 21, 1999, Strickler became the sixty-eighth person executed in Virginia in the death penalty’s modern era.[3]

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*  Associate Clinical Professor of Law, Director of Institute for Actual Innocence. J.D., 1991, University of Virginia. I thank Professor Corinna Barrett Lain, my dear friend and colleague, for her generous spirit and invaluable assistance during the writing process. I also extend my appreciation to my research assistant Zachary MacDonald for his able research and editing support.

[1].    See Strickler v. Greene, 57 F. Supp. 2d 313, 318 (E.D. Va. 1999) (granting Strickler’s counsel’s application for lawyer’s fees in post-conviction clemency proceedings in recognition of Strickler’s indigent status); see also Ian Record, Strickler Gets Death Sentence, Breeze, Sept. 20, 1990, at 2 (“Strickler has an IQ of 74, Warren testified. People with IQs of 70 can be considered mentally retarded, she said.”).

[2].    See Strickler v. Greene, 527 U.S. 263, 266 (1999).

[3].    Searchable Execution Database, Death Penalty Info. Ctr., http://www.deathpe naltyinfo.org/views-executions?exec_name_1=&sex=All&state%5B%5D=VA&sex_1=All& federal=All&foreigner=All&juvenile=All&volunteer=All (last visited Feb. 27, 2015) (listing Strickler as the sixty-eighth person executed in Virginia since 1976). Furman v. Georgia is a 1972 Supreme Court decision holding, through a fractured plurality opinion, that arbitrariness in imposing the death penalty rendered it unconstitutional in violation of the Eighth and Fourteenth Amendments. 408 U.S. 238, 240 (1972) (Douglas, J., concurring); id. at 295 (Brennan, J., concurring). In 1976, the Supreme Court overturned its Furman decision with Gregg v. Georgia, holding that new statutory schemes adding procedures for courts and juries in applying the death penalty limited its arbitrariness, which made it permissible under the Eighth and Fourteenth Amendments. 428 U.S. 153, 169, 204–07 (1976). Accordingly, the “modern era” refers to cases decided after the Supreme Court’s decision in Gregg v. Georgia.


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.