Capital punishment: advocates' deadly combination of inadequacy and misconduct.

"I cannot support a system, which, in its administration, has proven to be so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." (1)

I. INTRODUCTION

The nexus between the Eighth Amendment's ban on governmental imposition of "cruel and unusual punishments" (2) and the death penalty continues to be a controversial topic among judges, scholars, students, and others who have given it a moment's reflection. In an attempt to reconcile this relationship, the Supreme Court held that imposition of the death penalty must be analyzed under "evolving standards of decency that mark the progress of a maturing society." (3) Recently, the Court's application of this standard resulted in the categorical exclusion of two classes of defendants from death penalty eligibility. (4) The first exclusion came in 2002 when the Court ruled that executing those who are mentally "retarded" is a "purposeless and needless imposition of pain and suffering." (5) Three years later, the Court held that executing defendants who were juveniles at the time they committed the crime is unconstitutional. (6) Notwithstanding the indecency of executing the innocent, the lack of recognition for such incidents continues to inhibit the maturation of our society.

This essay argues that the current administration of the death penalty is a violation of the Constitution's prohibition of "cruel and unusual punishments." Section II briefly summarizes the history of the death penalty in this country, beginning with its temporary moratorium and concluding with the resultant legislative refinement. Sections HI and IV analyze the problems of ineffective assistance of counsel, prosecutorial misconduct, and the significance of each in the realm of capital punishment. In addition, the latter two sections illustrate the standards for evaluating each advocate's conduct and suggest some remedial measures for alleviating these administrative shortcomings.

II. POST-FURMAN HISTORY OF THE DEATH PENALTY

In 1972, for the first time in our history, the Supreme Court in Furman v. Georgia (7) held that the states' method for administering the death penalty was cruel and unusual punishment in violation of the Eighth Amendment. (8) The majority opinion, delivered by Justice Potter Stewart, acknowledged that the arbitrary and capricious manner in which the states implemented the death penalty was unconstitutional. (9) Justices Brennan and Marshall, concurring with the result but not the reasoning, concluded that the death penalty, in and of itself, was "per se" unconstitutional. (10)

The Furman Court based its holding on the administration of capital punishment in two southern states: Georgia and Texas. The Georgia statute provided that punishment for a convicted murderer was death, however, under two exceptions the punishment could be life in prison: if the conviction was based exclusively on circumstantial testimony or the jury returned a recommendation of mercy. (11) The Texas statute gave the jury the discretion to sentence the convicted murderer to either death or a prison sentence greater than two years. (12) Due to a lack of standards to limit sentencing discretion, the administration of such death penalty statutes was unconstitutional. (13)