The Cautionary Instruction: The Constitution Project recommends death penalty changes

Friday, 09 May 2014 06:00 AM Written by  Matt Mangino

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Recently Oklahoma became the center of national attention because of the botched execution of Clayton Lockett. A minute-by-minute account of the lethal injection procedure released by the state's Department of Corrections suggested that Lockett was conscious for more than 30 minutes before state officials called off the execution. Lockett died of an apparent heart attack ten minutes later.

This week, a committee of the The Constitution Project (TCP), a Washington-based think tank, identified systemic flaws with the death penalty from arrest to execution and offered proposals to remedy them.

"From the moment of arrest to the moment of death, the criminal justice system faces vexing challenges in carrying out the ultimate punishment," said former Texas Governor Mark White, a co-chair of the committee.

White noted that the issuance of the new report could not be more timely. Just last week, President Barak Obama declared that America continues to have "significant problems" in the application of the death penalty. The president asked Attorney General Eric Holder to review how the death penalty is administered in this country, and report back to him.

Here are some of the recommendations made in the TCP report entitled Irreversible Error:

-- Lethal injection should consist of a deadly dose of a single anesthetic or barbiturate approved by the Food and Drug Administration, rather than a complex multi-drug cocktail.

-- Defendants should be entitled by statute to testing of forensic evidence if the results may be relevant to a claim of innocence or wrongful conviction.

-- Custodial interrogations of a suspect in a homicide case should be videotaped or digitally recorded whenever practical.

-- State and federal jurisdictions should adopt legislation to require that eyewitness identifications be conducted in accordance with best practices called for by prevailing scientific research.

-- There should be a rebuttable presumption that a person with an IQ below 75 is intellectually disabled and therefore ineligible for the death penalty.

-- A defendant who shows reckless indifference but does not personally kill, attempt to kill or intend that a killing take place should not be eligible for capital punishment.

-- Every jurisdiction that imposes capital punishment should create an independent authority to screen, appoint, train and supervise lawyers to represent defendants charged with a capital crime.

-- Judges should be prohibited from overriding a jury’s recommendation of a sentence of less than death.

-- All capital jurisdictions should establish charging review committees to review prosecutorial decisions in death-eligible cases.

The Committee’s members include both supporters and opponents of the death penalty. They are Democrats and Republicans, conservatives and liberals. They reflect the full range of criminal justice stakeholders, including those with experience as judges, prosecutors, defenders, law enforcement officers, policymakers, victim advocates and scholars.

The Committee has released two previous reports: Mandatory Justice: Eighteen Reforms to the Death Penalty, released in 2001 and an update, released in 2005, called Mandatory Justice: The Death Penalty Revisited.

(Top image: Robert Patton, director of the Oklahoma Department of Corrections, addresses a press conference about the attempted execution of Clayton Lockett, in Tulsa, Okla. on Tuesday, April 29.  John Clanton/Tulsa World via Associated Press)


Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.

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