The case against the death penalty

The troubling case of Carlos DeLuna

In February of 1983, Carlos DeLuna and Carlos Hernandez went to a bar in Corpus Christi.  The two Carloses looked very similar.  Sometimes they were even mistaken for twins.  They were the same height and weight.  Although, there was a slight difference.  Hernandez had a moustache while DeLuna did not.  After the bar, Hernandez went to a gas station, the Shamrock to buy something.  After waiting a while, Hernandez had not returned.  DeLuna went to see what was taking so long and he saw Hernandez wrestling a woman behind the counter.  Scared because of his prior police record for sexual assault, DeLuna took off running.  When he heard sirens, he got even more scared and hid underneath a pickup truck.

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Image: Carlos DeLuna from the Corpus Christi Police Department; image from the Atlantic

Forty minutes later, he was found there by Corpus Christi Police.  He was arrested for the murder of Wanda Lopez.  Lopez had been stabbed to death.  Police photos showed blood splattered over three feet high.  DeLuna did not have any blood on him.  Police assumed that the rain washed away the blood.  Less than two hours after the murder, the owner of the Shamrock was allowed to wash down the store washing away crucial evidence that could potentially lead to the killer.  As far as the Corpus Christi police were concerned, they had caught their man.

DeLuna, for his part, claimed his innocence.  He took it one step further.  He named the killer.  Carlos Hernandez was the killer.  Corpus Christi police called Hernandez a “phantom.”  The prosecutors were given the name by DeLuna’s lawyers but they were unable to find any evidence that this person existed.  The chief prosecutor of the case called Hernandez a “figment of [DeLuna’s] imagination.”

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Image of Carlos Hernandez from the Corpus Christi Police Department.  Image appeared in the Atlantic.

DeLuna was executed for the murder of Lopez on December 8, 1989.  In October of 1989, Hernandez was arrested for the attempted murder of Dina Ybanez.  This information was not brought to the courts of Texas in order to help exonerate an innocent man.

We know all of the information mentioned above and even more information showing the innocence of DeLuna because of the research of Professor James S. Liebman and his colleagues in the book Los Tocayos Carlos: Anatomy of a Wrongful Execution.

Liebman et al. found even more disturbing information regarding this case.  They found that Hernandez bragged to members of the community that he was a knife murderer and that he was the one who killed Lopez.  Further Hernandez joked that his stupid namesake was the one taking the blame.  Oh yes, they found this information out in less than 24 hours after hiring a private detective.  Yet, Hernandez was so elusive that he was unknown to prosecutors.  These claims that he was the killer reached the police within weeks but was dismissed by the prosecutors.

Hernandez had been on parole for virtually his entire adult life.  As reported by Liebman, Hernandez had been arrested 39 times.  Several of these crimes had been due to wielding his knife.  Some of his arrests were for holding up local gas stations.  What’s worse is that he was arrested twice for a 1979 murder.  Once in 1979 and once after DeLuna was on death row.  This information was not disclosed to the courts.  Instead, Hernandez was a phantom.

Liebman and his team of researchers pored over the crime details and police reports for this crime.  They found a shoeprint in blood at the crime scene that was never investigated.  No usable fingerprints were taken at the scene of the crime.  A beer can, a cigarette butt, chewing gum, a button, and a comb were not forensically examined for saliva and/or blood.  When the researchers went to examine the DNA of the crime after DeLuna’s death, they were told that all of it had disappeared.

Carlos DeLuna was executed for the murder of Wanda Lopez.

Nebraska and the Death Penalty

Picture of Governor Pete Ricketts of Nebraska picture originally appeared on Huffington Post

In May of 2015, Nebraska legislators brought LB268 to be considered for a debate.  LB268 was introduced by Ernie Chambers who had been working to this end for four decades.  LB268 would repeal the death penalty in Nebraska and would instead have life in prison as the maximum sentence for first-degree murder.  Nebraska Attorney General Doug Peterson wrote a letter to the Nebraska legislature that “under current Nebraska law, a sentence to life imprisonment is effectively life imprisonment without (the possibility of{ parole.”

Governor Pete Ricketts said in a statement ahead of the vote, “no one has traveled the state more than I have in 18 months, and everywhere I go there is overwhelming support for keeping the death penalty in Nebraska.  Ahead of this morning’s vote, I am reminding senators that a vote for cloture on LB268 is a vote to repeal the death penalty and to give our state’s most heinous criminals more lenient sentences.  This isn’t rhetoric.  This is reality.”  The stakes were high.  Legislators knew that this bill would face the veto by Governor Ricketts.

Conservative legislators banded together with their progressive counterparts and passed the bill 32-15.  In order to override the veto, they would need 30 votes.  Governor Ricketts criticized the legislature for their votes when issuing a veto saying that “while the legislature has lost touch with the citizens of Nebraska, I will continue to stand with Nebraskans and law enforcement on this important issue.”  After intense lobbying by the Governor and his team, a vote to override the veto succeeded 30-13.

State senator and loyal Ricketts ally Beau McCoy announced that he would do everything he could to stop this bill from being enacted.  McCoy launched a new organization called Nebraskans for Justice to help put the measure on the ballot for the November general election ballot.  McCoy said,”I am standing with Nebraskans who are thoroughly disappointed with Nebraska legislators who voted to end Nebraska’s death penalty.”

McCoy was not the only one disappointed.  State Senator Bill Kintner of Papillion filed an amendment on LB268 to replace the method of execution from lethal injection to the firing squad.  Kintner was disappointed and bitterly complained, “this body is intent on moving the progressive-left agenda ahead.”  Senator McCoy was successful in getting this measure on the ballot in time for the November 2016 election.  If voters in Nebraska vote in favor of the amendment there will effectively be a repeal of the repeal of the death penalty.  Rejecting the measure will keep the death penalty repeal.  I urge all Nebraska voters to reject this measure.  It is time to show Governor Ricketts that he is wrong.  We need to show Senator Kintner that he is wrong.  This is not a partisan issue.  The death penalty as it stands is arbitrary, unconstitutional, and economically infeasible.

Economic costs of the death penalty

The American Law Institute (ALI) is made up of 4,000 judges, lawyers, and law professors.  They helped create the penal system that we currently have and helped create the death penalty, as we know it.  In 2009, they voted to remove the death penalty from their model penal code.  They argued that the death penalty is “so arbitrarily fraught with racial and economic disparities and unable to serve quality legal representation for indigent capital defendants, that it can never be administered fairly.”  As we will see later with regards to the arbitrariness of the death penalty, poorer defendants are more likely to have their crime considered a capital offense.  The American Civil Liberties Union (ACLU) has found that 90% of those on death row could not afford to hire a lawyer at the time of their trial.

In Gideon v. Wainwright, the Supreme Court found that the 6th Amendment’s guarantee of counsel is a fundamental right essential to a fair trial.  Writing for the majority, Justice Hugo Black wrote a fair trial “cannot be realized if the poor men charged with crime has to face his accusers without a lawyer to assist him.”  Even looking at this case, we see that Florida and other states would only allow lawyers appointed for the indigent in capital cases.  This certainly adds to the cost of death penalty cases.

As we see in state, after state, after state, the death penalty is significantly more expensive than other options.  The Nevada Legislative Auditor issued a report studying the cost of the death penalty in Nevada.  They found “the death penalty, from arrest through the end of incarceration, costs about $532,000 more than other murder cases where the death penalty is not sought.”  Where the death penalty was sought, sentenced, but the offender was not executed the cost was $1.3 million and the cost was only slightly lower where the death penalty was sought but not sentenced at $1.2 million.  Where the death penalty was not sought, the costs were $775,000.

Kansas issued a study on the cost of the death penalty and the Kansas legislature approved the linked report.  The total cost for the 9 trial cases where the death penalty was sought costs on average $395,762 compared to $98,963 on average for the 6 trial cases where the death penalty was not sought.  Some of that has to do with the the fact that when the prosecution sought the death penalty, there was an average of 40 days in court compared to 17 days for cases where the death penalty was not sought.

Seattle University commissioned a study on the death penalty in Washington.  The found that the total costs of the death penalty cases were about $3.07 million compared to $2.01 million for non-death penalty cases.  The biggest differences in the costs were found with the defense costs, prosecution costs, and the petition/appeals for death penalty cases.  The defense costs were about 2.8 to 3.5 times more expensive than non-death penalty cases.  Prosecution costs were about 2.3-4.2 times more expensive and the appeals were 5.7-6.3 times more expensive.

Seeking the death penalty is consistently found to be more expensive than non-death penalty cases.  The only question really is how much more expensive it is.  The rebuttal to this is that while seeking the death penalty in trial is more expensive, the costs even out after a criminal is executed compared to the cost of incarcerating a criminal for the remainder of their life.  Intuitively, this argument holds some appeal.  Unfortunately, it does not match reality.  This is because of two main reasons.  The first one is that in 2014, the executions occurred on average about 18 years after the conviction of the defendant.  Because of the lengthy time in prison, it is hard to find easy cost-savings.  The other reason for a lack of cost-saving is that keeping and maintaining death row is fairly expensive.   In fact, death row inmate management costs more on average than the management of non-death row inmates.  There are a couple of factors for this which include greater security, inmates having their own cells, and that there is a disparity in the inmate-to-staff ratios.

The Seattle University studied linked to earlier found that the cost for incarcerating non-death penalty inmates was 0.7-0.8 times the cost of death row inmates.  As they note in their report, though, they used the “same average daily cost post-2013 for both the [Death penalty] and [non-death penalty] groups.  This resulted in an underestimation of DPS/DPI DOC costs.”  The report of the Kansas legislature noted that it cost $49.3 thousand per inmate per year for a death penalty inmate compared to $24.69 thousand per inmate per year for non-death penalty inmates.  The report from the Nevada legislative auditor found that for incarceration costs, the death penalty is the most expensive sentence for those convicted of first degree murder.  Noting “incarceration costs are higher for the death penalty subgroup, since they are typically housed at a higher cost facility.”

All of this is before we even get to the cost of obtaining the drugs needed to execute an inmate with lethal injection.  With a number of pharmaceutical companies no longer offering the drug cocktail, the prices have skyrocketed.  I do understand that we cannot just reduce moral questions of actions such as the death penalty with an economic rebuttal.  It’s not enough to show that a policy is economically unsound to show that the described action is immoral or should otherwise not continue.  With all policies, I believe that we should do a calculus of cost-benefits to see what we should do going forward.  The death penalty as it currently stands is not viable only on economic grounds but is on shaky constitutional grounds, as well.


I should note that before we continue that a lot of the information for this section is based on the brilliant dissent from Justice Stephen Breyer in Glossip v. Gross.

The 8th Amendment of the United States Constitution plainly states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  In Weems v. United States, the Supreme Court found “that it is a precept of justice that punishment for crime should be graduated and proportioned to the offense.”  Justice John Paul Stevens wrote in the opinion for Atkins v. Virginia “a claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloddy Assizes’ or when the Bill of Rights was adopted but rather by those that currently prevail.”  It is on this precedent where Justice Breyer calls into question the constitutionality of the death penalty.

Justice Breyer writes that the death penalty fails the constitutional question because of “serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose.”  As we’ve seen, there have been innocent people executed for crimes that they commit.  Beyond that, there has been a number of cases where people have been sentenced to death but were exonerated.  There have been 115 exonerations in capital cases.  In his dissent, Justice Breyer notes that courts are 130 times more likely to exonerate a defendant when a death sentence is at issue.  Comparing to other murders, they are nine times more likely to exonerate a defendant with a capital murder compared to noncapital murder. Why does this happen?

The simplest explanation is that there is tremendous bias with the jurors.   In an article titled The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, Susan D. Rozelle explores the bias found in jurors.  The term used to describe potential jurors who will not convict someone of death even if they are convinced of a defendant’s guilt beyond a reasonable doubt is nullifiers.   She cites a Supreme Court Case Lockhart v. McCree  that allowed nullifers to be excluded from the guilt phase section of a capital case.  Further, the Supreme Court found that each juror should be “willing to consider all of the penalties provided by state law.”  Early social science studies found that once prosecutors were able to eliminate nullifiers from juries, those who remained were more likely to hold beliefs that would help the prosecution.  An example of this belief was “if the police have arrested an individula and the district attorney has brought him to trial, there is good reason tto believe that the man on trial is guilty.”

Moreover, eliminating nullifiers from jury pools made the juries more homogeneous.  This may not sound like a problem.  But similar people see evidence the same way.  When you have more people who are different who have different worldviews and different backgrounds, the same piece of evidence is seen in a different way.  As Professor Cass Sunstein wrote “normative bias is well supported by evidence of confirmation bias, by which people tend to seek out, and to believe, evidence that supports their won antecedent views.”  Or more simply, there is a tendency to see what we expect to see.  When you have the same worldviews or same backgrounds people will have the same expectations for what they should see so it will match up.

The Capital Jury Project (CJP) undertook a large study interviewing 1200 jurors who served on 350 capital trials in fourteen states to help study the behavior of capital case jurors.  Their conclusion was that “capital jurors hold disproportionately punitive orientations toward crime and criminal justice, are more likely to be conviction-prone, are more likely to hold racial stereotypes, and are more likely to be pro-prosecution.”  Over 70% of jurors interviewed felt that death was the only acceptable punishment for a murder committed by a defendant with a prior murder conviction.  Almost 60% agreed that death was the only acceptable punishment for planned or premeditated murder.  There were a few other categories including where the victim as a police officer or prison guard, murders involving multiple victims, and murders committed by a drug dealer.  About half of those interviewed felt that death was the only acceptable punishment in each of those situations.  About 30% of those interviewed stated that death was the only acceptable punishment for all of the above crimes.  About 24% of the jurors stated death was the only acceptable punishment for felony murder where the killing that occurs during another crime.  More troubling, some of the capital jurors offered some situations where they would not vote for the death penalty which included war time, children playing with a gun, hunting accident, or if the guy was not guilty.  Comparatively, only 2-3% of jurors who were interviewed stated that the death penalty is unacceptable in those situations mentioned.

What could be more troubling than that?  Perhaps the fact nearly half of those interviewed admitted that they decided the proper punishment before “they had heard a single piece of evidence on the issue of punishment.”  Or that about 10% of jurors stated that the death qualification question (being asked if they would consider the death penalty) “made them think the defendant must be or probably was guilty and that death must be or probably was the appropriate punishment.”

But before we get to the trial, there is tremendous pressure on the community including police officers and prosecutors to find the person who committed this crime.  Capital cases tend to be horrendous crimes.  There the police face pressure to quickly find the person who committed the crime.  In cases where the defendant was exonerated, the police investigation was shorter than those where the defendants were not exonerated according to the article “Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases.”  Because of this pressure, there is a greater likelihood of of the hallmarks of wrongful convictions as noted in Convicting the Innocent: Where Criminal Prosecutions Go Wrong including false confessions, mistaken eyewitness testimony, and untruthful jailhouse informants.  Because of all of these factors, researchers estimate that about 4% of those sentenced to death are actually innocent.

Justice Breyer notes in his dissent that when the death penalty was reinstated in Gregg v. Georgia that the death penalty would be unconstitutional if “inflicted in an arbitrary and capricious manner.”  A lot of studies found that individuals who were accused of murdering white victims as opposed to minority victims were more likely to receive the death penalty.  The Government Accountability Office (GAO) found in 1990 that 82% of the 28 studies found that “race of victim influences capital murder charge or death sentence.” A similar finding was found in the article Furman, McCleskey, and a Single County Case Study published in 2013.  The geographic location of the defendant and victim make a difference, as well.  29 counties nationwide account for half of all death sentences imposed nationwide.  In 2012, 59 counties accounted for all death sentences nationwide.  The reasons for this are that only some states permit the death penalty, the counties may have weaker public defense programs, or it could be that the federal district that the jurors will be filled are a big racial difference than the county where the crime occurred.

Beyond that arbitrariness, there is an arbitrariness involved with what crimes are going to be charged as capital crimes.  Justice Breyer lists a number of crimes that were prosecuted as capital crimes compared to other murders.  Most of them include a single murder from a defendant who previous felony convictions compared to a murderer with multiple victims or other offenses in the context of the crime that make it seemingly more heinous.  I won’t repeat them all here.  But the crimes he chooses are supposed to show that capital charges are arbitrarily chosen and I believe him.

As we look at Gregg v. Georgia, we know that every safeguard has to be observed when a defendant’s life is at stake.  These requirements take a long time to implement.   As Justice Breyer writes, “unless we abandon the procedural requirements that assure fairness and reliability, we are forced to confront the problem of increasingly lengthy delays in capital cases.”

There were 35 executions in 2014.  These executions occurred on average about 18 years after the initial sentencing.  Some states have even longer waits.  For instance, in Florida, the last 10 prisoners executed spent nearly 25 years on death row before execution.  The delays have only increased in recent years.  The average delay in 1960 was two years.  In 2004, it was 11 years.  According to the Bureau of Justice Statistics, nearly half of the 3,000 inmates on death row now have been there more than 15 years.

The ACLU found that inmates on death row are kept in isolation for 22 or more hours per day.  Solitary confinement can lead to anxiety, paranoia, hallucinations, rage, and panic.  Beyond that as Justice John Paul Stevens wrote in Gomez v. Fierro lengthy delays subject “death row inmates to decades of especially severe, dehumanizing conditions of confinement.”  Or in the denial of cert for Lackey v. Texas, Stevens wrote that “excessive delays from sentencing to execution can themselves constitute cruel and unusual punishment prohibited by the Eighth Amendment.”

The delays are necessary because they provide additional safeguards to make sure that the inmate is guilty but they are damaging in their current form.  These delays undermine the claim that the death penalty is a retributive punishment that effectively deters crime.  This claim is undermined by social science research.  The National Research Council reviewed the empirical evidence saying “despite 30 years of empirical research in the area, there remains no reliable statistical evidence that capital punishment in fact deters potential offenders.”

If we take it all into consideration: the unreliability, the arbitrariness, and the delays, I find myself agreeing with Justice Breyer that we need a wholesale review of the constitutionality of the death penalty.


If ridding ourselves of the death penalty were as straightforward and easy as simply agreeing with Justice Breyer, we wouldn’t have these debates that we’ve been having for over 40 years.  Instead of focusing on concrete issues and what has happened in the past, we are often faced with abstract questions or hypotheticals over would we support the death penalty in what situations.  While it’s impossible to predict how I would respond given a particular situation, based on the evidence that is out there, the death penalty should be repealed.  In Nebraska, it was successfully repealed.  I urge all of you to vote AGAINST the Nebraska Death Penalty Repeal Referendum on November 8.