Mark L. Earley, Sr. *
If you believe that the government always “gets it right,” never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty. I no longer have such faith in the government and, therefore, cannot and do not support the death penalty.
I supported the death penalty for all of my public life spanning from 1987 to 2001—as a Virginia State Senator, Attorney General, and Republican candidate for governor. Today, I can still make a conceptual argument as to why it should be a tool in the arsenal of a prosecutor—but it is just an argument. And, to me, the argument is tired, strained, and no longer defensible.
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* Criminal Defense and Trial Attorney, Earley Legal Group, LLC, Leesburg, Virginia. J.D., 1982, College of William and Mary, Marshall Wythe School of Law; B.A., 1976, College of William and Mary. Former Senator of Virginia (1988–1998); Attorney General of Virginia (1998–2001); Republican Candidate for Governor of Virginia, 2001; President and CEO, Prison Fellowship USA, 2001–2011.
Corinna Barrett Lain *
For decades now, America’s death penalty has been beset by serious problems in its administration, but what has finally gotten the public’s attention is a spate of botched executions in the first half of 2014. “2014 is Already the Worst Year in the History of Lethal Injection” one headline blared after a fourth execution went awry in July.[1] With fallout from botched executions named one of the “Top 10 Stories of 2014,” there can be little doubt: the death penalty is once again in the spotlight, and botched executions are what put it there.[2]
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* Professor of Law and Associate Dean of Faculty Development, University of Richmond School of Law. Thanks to Jim Gibson for comments on an early draft, Cate Gray and Zack MacDonald for excellent research assistance, and to the University of Richmond Law Review for a fabulous symposium issue.
[1]. Ben Crair, 2014 Is Already the Worst Year in the History of Lethal Injection, New Rep. (July 24, 2014), http://www.newrepublic.com/article/118833/2014-botched-execu tions-worst-year-lethal-injection-history.
[2]. Michelle Charles, Top 10 Stories of 2014—No. 4: Fallout from Botched Execution Brings Death Penalty Challenges, Stillwater News Press (Dec. 27, 2014, 6:00 AM), http: //www.stwnewspress.com/news/top-stories-of—no-fallout-from-botched-execution/article _b4606b8e-8d7d-11e4-ade6-b71e24a226fc.html.
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).
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.
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).
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.
