Legal disparities in the capital of capital punishment

Journal of Criminal Law and Criminology

Volumn 99, Issue 3, 2009, Pages 717-756

  Phillips, Scott ^a  

^a UNIVERSITY OF DENVER   (United States)

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EID: 72249106306     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (106)

1. Furman v Georgia, 408 U.S. 238, 251-52 (1972).
2. Furman v Georgia, 408 U.S. 238 at 255-56.
3. HELEN PREJEAN, THE DEATH OF INNOCENTS: AN EYEWITNESS ACCOUNT OF WRONGFUL EXECUTIONS 190 (2005).
4. HELEN PREJEAN, THE DEATH OF INNOCENTS: AN EYEWITNESS ACCOUNT OF WRONGFUL EXECUTIONS 190 (2005).
5. See, e.g., ROBERT M. BOHM, DEATHQUEST III: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES (3d ed. 2007)
6. DAVID R. DOW, EXECUTED ON A TECHNICALITY: LETHAL INJUSTICE ON AMERICA'S DEATH ROW (2005)
7. RAYMOND PATERNOSTER ET AL., THE DEATH PENALTY: AMERICA'S EXPERIENCE WITH CAPITAL PUNISHMENT (2008)
8. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J. 1835 (1994) [hereinafter Counsel for the Poor]
9. Stephen B. Bright, The Politics of Capital Punishment: The Sacrifice of Fairness for Executions, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT 127 (James R. Acker et al. eds., 2003).
10. DAVID R. DOW, EXECUTED ON A TECHNICALITY: LETHAL INJUSTICE ON AMERICA'S DEATH ROW at 7.
11. DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 14-15 (1990).
12. Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 YALE L.J., at 1840.
13. WILLIAM J. BOWERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA 1864-1982 (1984).
14. Linda Foley, Florida After the Furman Decision: The Effect of Extralegal Factors on the Processing of Capital Offense Cases, 5 BEHAV. SCI. & L. 457 (1987).
15. DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS, at 157-58.
16. James C. Beck & Robert Shumsky, A Comparison of Retained and Appointed Counsel in Cases of Capital Murder, 21 LAW & HUM. BEHAV. 525 (1997).
17. CAROL J. DEFRANCES & MARIKA F.X. LITRAS, U.S. DEP'T OF JUSTICE, INDIGENT DEFENSE SERVICES IN LARGE COUNTIES, 1999 (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/idslc99.pdf.
18. See, e.g., AMNESTY INT'L, AI INDEX NO. AMR 51/125/2007, UNITED STATES OF AMERICA: ONE COUNTY, 100 EXECUTIONS (2007), available at http://www.amnesty.org/en/library/info/AMR51/125/2007.
19. Tex. Dep't of Criminal Justice, Death Row Home Page, http://www.tdcj.state.tx.us/stat/deathrow.htm (last visited May 15, 2009). The annual number of death sentences from Harris County was calculated from the Texas Department of Criminal Justice website, which lists the county of conviction for each offender and the date the offender was received on death row. Id.
20. Mark Ballard, Gideon's Broken Promise, TEX. LAW., Aug. 28, 1995, at 17, 19.
21. Bob Sablatura, Study Confirms Money Counts in County's Courts: Those Using Appointed Lawyers Are Twice as Likely to Serve Time, HOUS. CHRON., Oct. 17, 1999, at A1.
22. Mary Flood, What Price Justice? Gary Graham Case Fuels Debate Over Appointed Attorneys, HOUS. CHRON., July 1, 2000, at Al.
23. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS 48 (2000), available at http://www.texasappleseed.net/pdf/projects_fairDefense_fairref.pdf.
24. Death Penalty Info. Ctr., Number of Executions by State and Region Since 1976, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited May 15, 2009).
25. In non-capital cases, contract counsel is also used. Under the contract method, an attorney enters into a contract with a judge to represent all indigent defendants who appear before the court for a specified period of time.
26. TEX. APPLESEED FAIR DEF. PROJECT, supra note 19, at 48. The two counties that have a sizeable public defender office are Dallas County and El Paso County. Id.
27. The following information comes from personal correspondence with Judge Burnett: the description of indigent defense prior to 1991; the development of the capital certification program; and the relationship of the capital certification program to the subsequent Fair Defense Act. E-mail from Jay W. Burnett, J., Harris County, to Scott Phillips, Professor, Univ. of Denver (Aug. 20, 2007, 11:00 AM) (on file with author).
28. Texas has nine Judicial Regions. Tex. Courts Online, Administrative Judicial Regions, http://www.courts.state.tx.us/courts/ajr.asp (last visited May 15, 2009).
29. EQUAL JUSTICE CTR. & TEX. DEFENDER SERV., TEXAS DEATH PENALTY PRACTICES: QUALITY OF REGIONAL STANDARDS AND COUNTY PLANS GOVERNING INDIGENT DEFENSE IN CAPITAL CASES 25, available at http://www.equaljusticecenter.org/Report%20on%20Texas%20Capital%20Defense%20Procedures%20-%202d%20ed.pdf.
30. EQUAL JUSTICE CTR. & TEX. DEFENDER SERV., TEXAS DEATH PENALTY PRACTICES: QUALITY OF REGIONAL STANDARDS AND COUNTY PLANS GOVERNING INDIGENT DEFENSE IN CAPITAL CASES at 40.
31. EQUAL JUSTICE CTR. & TEX. DEFENDER SERV., TEXAS DEATH PENALTY PRACTICES: QUALITY OF REGIONAL STANDARDS AND COUNTY PLANS GOVERNING INDIGENT DEFENSE IN CAPITAL CASES at 46.
32. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS 5 (2000), available at http://www.uta.edu/pols/moore/indigent/last.pdf.
33. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS, at 6, 11.
34. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS at 99-101.
35. AM. BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING DEFENSE SERVICES 5-2.4 cmt. (3d ed. 1992) ("Since a primary objective of the payment system should be to encourage vigorous defense representation, flat payment rates should be discouraged. The possible effect of such rates is to discourage lawyers from doing more than what is minimally necessary to qualify for the flat payment." (footnote omitted)).
36. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS, at 17.
37. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS at 18.
38. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS, at 119.
39. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS at 120-21.
40. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS, at 18.
41. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS, at 18.
42. Bob Sablatura, Study Confirms Money Counts in County's Courts: Those Using Appointed Lawyers Are Twice as Likely to Serve Time, HOUS. CHRON, at A1.
43. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS, at 20-21.
44. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS at 13.
45. Mark Ballard, Gideon's Broken Promise, TEX. LAW., at 21.
46. Although researchers have not examined the effect of legal counsel on capital unishment in Harris County, researchers have examined the relationship between legal counsel and punishment for other crimes. Examining all criminal cases in Harris County from June 1992 to December 1994, for example, the Texas Lawyer reports that 25% of defendants with court-appointed counsel were sentenced to jail or prison for an average of 7.6 years, compared to 8% of defendants with hired counsel for an average of 2 years. Ballard, supra note 16, at 19. Other studies have considered specific crimes. Focusing on defendants charged with first-offense possession of less than one gram of cocaine in 1996, the Houston Chronicle reports that 57% of defendants with court-appointed counsel were sentenced to jail or prison, compared to 25% of defendants with hired counsel. Sablatura, supra note 17. Having the resources to hire counsel also matters in DWI cases. An examination of DWI cases disposed between January and August of 1999 reveals that 98% of defendants with appointed counsel were convicted, and, among those, 95% were sentenced to jail; but just 86% of defendants with hired counsel were convicted, and, among those, 32% were sentenced to jail. Tana McCoy, Indigent Defense: An Application of Conflict Theory in the Analysis of Driving While Intoxicated Cases 158 tbl.24, 177 tbl.37 (Aug. 2002) (unpublished Ph.D. dissertation, Sam Houston State University) (on file with ProQuest).
47. E-mail from Scott Durfee, Chief Counsel to the District Attorney, Harris County, to Scott Phillips, Professor, Univ. of Denver (Aug. 11, 2006, 5:40 PM) (on file with author).
48. The Harris County intake division prosecutor must determine whether a homicide can be charged under the Texas capital murder statute. Id. Despite repeated attempts, collecting the data needed to examine the impact of legal counsel-whether the defendant had counsel and, if so, the form of counsel-on the charging decision proved impossible. But the charging decision does not appear to exhibit much variation. To begin, the Texas capital murder statute delineates narrow categories of murder that are death-eligible. TEX. PENAL CODE ANN. § 19.03 (Vernon 2003 & Supp. 2008). The precision of the statute simplifies the charging decision, as opposed to states that define heinous murders as death-eligible. For a listing of such states and examples of the heinous language used to define death-eligible crimes, see Death Penalty Info. Ctr., Aggravating Factors for Capital Punishment by State, http://www.deathpenaltyinfo.org/aggravating-factors-capital-punishment-state (last visited May 15, 2009). Moreover, the Houston Chronicle reports in a February 2001 special series that the intake prosecutor has "standing orders" to file capital murder charges in all possible cases. Mike Tolson, A Deadly Distinction: Harris County Is a Pipeline to Death Row, HOUS. CHRON., Feb. 5, 2001, at A1. Nonetheless, the inability to examine the charging decision remains a potential weakness of the current research. The grand jury must return a "Bill of Indictment" for capital murder in order for the DA to seek death. E-mail from Scott Durfee, supra note 51. This step borders on a formality, as data from the Harris County district clerk indicate that grand juries returned a "No Bill" in just seven capital cases from 1992-1999.
49. Defendants were excluded if the case was dismissed, the case was disposed but expunged, the defendant was never arrested, the victim's remains could not be identified, or the case had not been disposed at the time the list of cases was requested from the Harris County District Clerk in December 2001. The two Native American defendants were also excluded.
50. See Roper v. Simmons, 543 U.S. 551, 579 app. A.I (2005) (listing Texas as one of the states that permitted the death penalty for juveniles).
51. The inmates sentenced to life imprisonment are eligible for parole because Texas did not pass a life without parole (LWOP) statute until 2005. Defendants in the data who were convicted in 1992 must serve thirty-five years before becoming eligible for parole; defendants in the data who were convicted between 1993 and the passage of LWOP must serve forty years before becoming eligible for parole.
52. 543 U.S. 551 (holding that the Eighth and Fourteenth Amendments barred the imposition of the death penalty upon juvenile defendants).
53. E-mail from Scott Durfee, Chief Counsel to the District Attorney, Harris County, to Scott Phillips, Professor, Univ. of Denver.
54. DAVID C. BALDUS ET AL., EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS, at 526-35.
55. The DA denied access to the capital murder memorandum as a confidential work product; police reports contained limited information or had substantial amounts of information redacted; and case files and transcripts were not an option because of the number of cases disposed through plea bargains.
56. The Research Assistant also coded heinousness based on a visceral reaction to the facts of the crime, just as a DA or juror would do. Each case was assigned to Level 1 (relative minimal), Level 2 (intermediate), or Level 3 (extreme). The Baldus measure of heinousness-based on aggravating and mitigating circumstances-and the visceral measure of heinousness produce the same substantive results in the multivariate models. See BALDUS ET AL., supra note 7.
57. The JIMS file included separate indicators for race (White, Black, Asian) and ethnic origin (Hispanic), but important clues suggested that JIMS did not distinguish between Hispanic defendants and non-Hispanic defendants in a consistent manner. An informal examination of defendants' names suggested a problem of under-inclusion: defendants coded as Hispanic tended to have Spanish surnames, but some defendants with Spanish surnames were coded as non-Hispanic. Moreover, the same defendants who appeared to be miscoded often murdered Hispanic victims, a pattern that supports the presumption of coding errors in JIMS considering the intra-racial nature of most murder. The problem was addressed with a two-pronged approach: if a defendant was coded as Hispanic in JIMS, then the original code remained the same; if a defendant was coded as non-Hispanic in JIMS, then the defendant's name was compared to the U.S. Census Bureau's 1990 Spanish Surname List. David L. Word & R. Colby Perkins, Building a Spanish Surname List for the 1990s-A New Approach to an Old Problem (U.S. Bureau of the Census, Technical Working Paper No. 13, 1996), available at http://www.census.gov/population/documentation/twpno13.pdf. The list classifies 12,215 surnames as "Heavily Hispanic," meaning more than 75% of Census respondents with the surname reported being Hispanic. Id. Using a conservative standard, capital murder defendants were recoded as Hispanic if at least 80% of Census respondents with the same surname reported being Hispanic. A total of fifty-seven defendants were recoded as Hispanic. The substantive results remain the same regardless of whether the original or revised race codes are used.
58. JIMS criminal record data are limited to Harris County, but the DA has access to national criminal record data. To address the problem, JIMS data were supplemented with information from the website PublicData.com, Homepage, www.publicdata.com (last visited May 15, 2009). The public data website uses the Freedom of Information Act and Sunshine Laws to purchase public records from states. Users are charged a fee to access criminal record data compiled from forty-three states, including Texas. The accuracy of the website is a function of the accuracy of state records. To test the reliability of the website, I drew a random sample of forty defendants from my data. I then examined whether the defendants' criminal records within Harris County would be coded the same based on the two different data sources-JIMS and the public data website. The codes matched for thirty-nine of the forty defendants. Because the public data website appeared to be reliable, I used the website to conduct searches on all 504 defendants in an attempt to capture convictions outside of Harris County. Among the defendants who had a clean record in JIMS, thirteen had a prior violent conviction and thirty-two had a prior non-violent conviction on the public data website. Data from JIMS and the public data website were merged to measure prior violent and non-violent conviction.
59. If data were missing in the VSMF, then HCME records were used to code the age, sex, and race of the victim.
60. Searches were conducted on the public data website for all victims. See supra note 62 for more information on the website. The data do not include enough Asian defendants or Asian victims to produce robust parameters. To preserve the population of cases, Asian defendants and Asian victims are included in the multivariate models. But the parameters for Asian defendant and Asian victim are reported in table footnotes and should not be interpreted.
61. Clustering occurs because multiple defendants are often indicted for the same crime. To adjust for the clustering of defendants within cases, robust standard errors were calculated using the sandwich estimator in Stata. Adjusting for clustering produced no substantive changes in the parameter estimates or p values for legal counsel. William Rogers, Regression Standard Errors in Clustered Samples, 13 STATA TECHNICAL BULL. 19 (1993)
62. Jeroen Weesie, Seemingly Unrelated Estimation and the Cluster-Adjusted Sandwich Estimator, 52 STATA TECHNICAL BULL. 34 (1999).
63. See, e.g., Richard A. Berk et al., Reply to Bollen, Firebaugh, and Rubin, 25 SOC. METHODOLOGY 481 (1995) [hereinafter Reply to Bollen]
64. Richard A. Berk et al., Statistical Inference for Apparent Populations, 25 SOC. METHODOLOGY 421 (1995) [hereinafter Statistical Inference]
65. Kenneth A. Bollen, Apparent and Nonapparent Significance Tests, 25 SOC. METHODOLOGY 459 (1995)
66. Charles D. Cowger, Reply to Allen Rubin's Significance Testing with Population Data, 59 SOC. SERV. REV. 521 (1985)
67. Charles D. Cowger, Statistical Significance Tests: Scientific Ritualism or Scientific Method?, 58 SOC. SERV. REV. 358 (1984)
68. Glenn Firebaugh, Will Bayesian Inference Help? A Skeptical View, 25 SOC. METHODOLOGY 469 (1995)
69. Donald B. Rubin, Bayes, Neyman, and Calibration, 25 SOC. METHODOLOGY 473 (1995).
70. Richard A. Berk et al., Statistical Inference for Apparent Populations, 25 SOC. METHODOLOGY, at 426.
71. Richard A. Berk et al., Statistical Inference for Apparent Populations, 25 SOC. METHODOLOGY at 426-28.
72. Kenneth A. Bollen, Apparent and Nonapparent Significance Tests, 25 SOC. METHODOLOGY, at 464, 468.
73. As indicated, the purpose of this Article is to describe population parameters, not draw inferences. Nonetheless, I argue that the disparities which existed in Harris County in the 1990s probably also existed across the rest of the state, and the disparities which existed in Harris County in the 1990s probably persist in Houston today. Such claims are logical suppositions rather than data driven inferences.
74. The example assumes, for the purposes of argument, that the death sentence rate for defendants with mixed counsel and appointed counsel remains the same over time.
75. PAUL D. ALLISON, LOGISTIC REGRESSION USING THE SAS SYSTEM: THEORY AND APPLICATION 41-48 (1999).
76. Mary Flood, What Price Justice? Gary Graham Case Fuels Debate Over Appointed Attorneys, HOUS. CHRON. July 1, 2000, at Al
77. The Chief Counsel was careful to note that his perception is based on anecdotal evidence. E-mail from Scott Durfee, supra note 51.
78. The 129 cases in which the DA sought death cannot be modeled separately because the group is not large enough to support the number of independent variables. But the conditional probabilities reported in Table 8 provide insights regarding the effect of legal counsel on the decision to impose death among cases in which death was sought.
79. Linear interpolation was used to estimate median household income in Harris County in 1995. The Census Bureau reports that median household income increased from $30,970 in 1989 to $42,598 in 1999. U.S. Census Bureau, Harris County: Texas Quicklinks, http://quickfacts.census.gov/qfd/states/48/48201lk.html (last visited May 15, 2009). The year 1995 was chosen because it is the mid-point of the range of years considered in the current research.
80. The only truly wealthy defendant appears to be Robert Angleton. Robert Angleton was accused of hiring his brother, Roger Angleton, to kill his wife Doris to prevent her from acquiring his considerable fortune in a pending divorce. Doris was killed in her River Oaks home, unquestionably the most affluent neighborhood in Houston (Robert's census block group had the highest median household income of any defendant by a large margin). Robert was a business owner with real estate holdings, though he also worked as a bookmaker and had millions of dollars stored in safety deposit boxes at different banks (Robert was also a confidential informant for the Houston Police Department vice division). The evidence against Robert was strong. Roger was found with a tape that the prosecution claimed contained a conversation between the brothers regarding how to kill Doris, though the defense had experts who disputed whether the voice on the tape was truly Robert. The State's case became more difficult after Roger committed suicide in jail and left a note claiming that Robert was innocent. Roger maintained that he killed Doris without prompting in order to blackmail Robert into paying him money that was owed. Robert, who had hired counsel, is the only defendant in the data who was acquitted in a case in which the DA sought the death penalty. For a summary of the Angleton case, see Steve Brewer et al., Jury Hands an Acquittal to Angleton: Wealthy Ex-Bookie Cleared of Role in Wife's'97 Slaying, HOUS. CHRON., Aug. 13, 1998, at A1.
81. The substantive findings remain the same if the mean is used to calculate the average. The means of median household income for defendants with appointed, mixed, and hired counsel are: $27,780, $31,147, and $36,800. The mean of hired drops from $36,800 to $30,490 if the most extreme outlier, Robert Angleton, is removed from the calculation. See supra note 77 for further discussion of Angleton.
82. Edward Green & Russell P. Wakefield, Patterns of Middle and Upper Class Homicide, 70 J. CRIM. L. & CRIMINOLOGY 172, 175 (1979). Some might argue that the real issue surrounding socioeconomic status and capital punishment is the definition of capital murder-the forms of murder that the poor tend to commit in the context of predatory crime are defined as capital murder, but the forms of murder that the rich tend to commit in the context of corporate crime are not.
83. ROBERT M. BOHM, DEATHQUEST III: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES, at 305-06. This argument raises a host of fascinating questions regarding the social construction of crime, the role of discretion in punishing the powerful and the powerless, and the meaning of intent. But such questions are beyond the scope of the current research.
84. Mark Cooney, The Decline of Elite Homicide, 35 CRIMINOLOGY 381, 388-92 (1997).
85. Death Penalty Info. Ctr., Innocence: List of Those Freed from Death Row, http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row (last visited May 15, 2009). Defendants on the list fall into one of the following categories: the conviction was overturned and the defendant was acquitted at retrial; the conviction was overturned and all charges were dropped; or the defendant was given a pardon based on evidence of innocence.
86. For more on wrongful conviction and wrongful execution, HELEN PREJEAN, THE DEATH OF INNOCENTS: AN EYEWITNESS ACCOUNT OF WRONGFUL EXECUTIONS 190 (2005)
87. MICHAEL L. RADELET ET AL., IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES (1992)
88. BARRY SCHECK ET AL., ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT (2003)
89. Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523 (2005)
90. Michael L. Radelet & Hugo Adam Bedau, Miscarriages of Justice in Potentially Capital Cases, 40 STAN. L. REV. 21 (1987)
91. Michael L. Radelet & Hugo Adam Bedau, The Execution of the Innocent, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT, at 325.
92. Ernest Van Den Haag, Justice, Deterrence and the Death Penalty, in AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT, at 233.
93. JENNIFER M. SAUBERMANN & ROBERT L. SPANGENBERG, THE SPANGENGBERG GROUP, STATE AND COUNTY EXPENDITURES FOR INDIGENT DEFENSE SERVICES IN FISCAL YEAR 2005 (2006), available at http://www.abanet.org/legalservices/sclaid/defender/downloads/FINAL_REPORT_FY_2005_Expenditure_Report.pdf; Task Force on Indigent Def., Financial Report, http://tfid.tamu.edu/public/default.asp (follow "Expense Report Results" hyperlink; then select "2005" reporting period) (last visited May 15, 2009). Per capita spending on indigent defense (PCSID) is calculated as follows: total expenditures divided by population (total expenditures are listed id. at 35-38; state populations are listed in the brief discussion regarding indigent defense in each state, id.). Harris County, with a population of 3,673,089, spent a total of $19,361,692 on indigent defense (the expenditure figure is the sum of appointed counsel fees, investigation expenses, expert witnesses, and other litigation expenses). To be clear, neither data source disaggregates indigent defense and indigent capital defense. But, it seems reasonable to assume a strong correlation between per capita spending on indigent defense and per capita spending on indigent capital defense.
94. CAROL J. DEFRANCES & MARIKA F.X. LITRAS, U.S. DEP'T OF JUSTICE, INDIGENT DEFENSE SERVICES IN LARGE COUNTIES, 1999.(2000)
95. ROBERT M. BOHM, DEATHQUEST III: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES (3d ed. 2007)
96. RAYMOND PATERNOSTER ET AL., THE DEATH PENALTY: AMERICA'S EXPERIENCE WITH CAPITAL PUNISHMENT (2008).
97. Stephanie Hindson et al., Race, Gender, Region and Death Sentencing in Colorado, 1980-1999, 77 U. COLO. L. REV. 549, 573 (2006).
98. ROBERT M. BOHM, DEATHQUEST III: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES, at 270.
99. RAYMOND PATERNOSTER ET AL., THE DEATH PENALTY: AMERICA'S EXPERIENCE WITH CAPITAL PUNISHMENT.(2008)
100. David R. Dow, Teague and Death: The Impact of Current Retroactivity Doctrine on Capital Defendants, 19 HASTINGS CONST. L.Q. 23, 72 (1991).
101. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS 5 (2000)
102. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS, at 37.
103. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS, at 35.
104. TEX. APPLESEED FAIR DEF. PROJECT, THE FAIR DEFENSE REPORT: ANALYSIS OF INDIGENT DEFENSE PRACTICES IN TEXAS at 21-22.
105. ALLAN K. BUTCHER & MICHAEL K. MOORE, COMM. ON LEGAL SERV. TO THE POOR IN CRIMINAL MATTERS, MUTING GIDEON'S TRUMPET: THE CRISIS IN INDIGENT CRIMINAL DEFENSE IN TEXAS 5 (2000).
106. For more on Public Defender Offices, see Rebecca Copeland, Getting It Right from the Beginning: A Critical Examination of Current Criminal Defense in Texas and Proposal for a Statewide Public Defender System, 32 ST. MARY'S L.J. 493 (2001).