Does the near demise of the death penalty in the United States reveal a road map for comprehensive criminal justice reform?
Brandon Garrett, a highly influential scholar of criminal justice outcomes, evidence, and constitutional rights who joined the Duke Law faculty on July 1 as the inaugural L. Neil Williams, Jr. Professor of Law, thinks so.
Death sentences have dropped by more than two-thirds since 2000, Garrett observes in End of its Rope: How Killing the Death Penalty Can Revive Criminal Justice (Harvard University Press, 2017). Many have been reversed on post-conviction appeal after proof surfaced they were based on false confessions, faulty forensic science or eyewitness identification, poor legal representation, or coercive plea bargains. The death penalty is now banned in 19 states and a trend towards public funding of capital defense, allowing teams of skilled lawyers, investigators, and social workers to expose exculpatory evidence of innocence or mitigating factors, increasingly leads jurors to choose “mercy.”
In laying out the underlying systemic flaws that are causing the death penalty to wane (yet have long led to the execution of innocents and still factor into the imposition of harsh sentences, like that of life without parole), he urges the public and policymakers to seize a “special opportunity.” Garrett, who was previously the White Burkett Miller Professor of Law and Public Affairs and Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia, says it is time to rethink the morality and accuracy of the criminal justice system and do away with “blunt” mandatory punishments that lead to mass incarceration. His reform proposals extend to every aspect of the system: police investigations and interrogations, defense lawyering, prosecutorial power, the use and veracity of forensic evidence, the qualification of expert witnesses and other evidentiary matters, and policies relating to bail, parole, and prison diversion.
These are some of the issues central to his exceptionally ambitious research agenda that is now focused on forensic science, eyewitness identification, corporate crime, constitutional rights and habeas corpus, and criminal justice policy. A prolific writer whose articles are published in leading law journals, Garrett is also the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard University Press, 2011), Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation (Foundation Press, 2013) (with Lee Kovarsky), and Too Big to Jail: How Prosecutors Compromise with Corporations (Harvard University Press, 2014). His latest book, The Death Penalty: Concepts and Insights (West Academic, 2018) (with Lee Kovarsky), which is designed for classroom use, was published in July. Garrett’s work is frequently cited by U.S. and international judges; End of Its Rope and a forthcoming article were cited by U.S. Supreme Court Justice Stephen Breyer in his dissent to the denial of an elderly death-row inmate’s petition for certiorari on June 28.
Garrett often engages in original empirical research employing a variety of methodologies to expose root causes and patterns behind systemic legal problems and then advocates for solutions through policy and legislative change. He has been involved in law reform projects through the National Academy of Sciences and currently serves as Associate Reporter on an American Law Institute (ALI) project on policing, among other initiatives. He speaks on criminal justice issues frequently to legislative and policymaking bodies, attorneys, law enforcement officials, and media outlets. He also makes his original data-sets available to other scholars and researchers in law and other fields.
“Brandon is an extraordinarily productive scholar and a generous colleague,” said Lisa Kern Griffin, the Candace M. Carroll and Leonard B. Simon Professor of Law, a scholar of evidence theory, constitutional criminal procedure, and federal criminal justice policy. “It is hard to think of any academic who has had as much impact when it comes to on-the-ground criminal procedure.”
James Coleman, Jr., the John S. Bradway Professor of the Practice of Law, co-director of the Wrongful Convictions Clinic, and director of the Center for Criminal Justice and Professional Responsibility, calls Garrett an “A-list addition” to the Duke Law faculty: “His work provides the beef for those of us concerned about the criminal justice system and worried that the public is indifferent. It is hard to ignore his research. He forces anyone defending the system to address the facts — always a good place to start.”
Correcting flawed forensic and eyewitness errors
A longstanding interest in the root causes of wrongful convictions is foundational to Garrett’s wide-ranging studies that share, he says, “a common theme in examining sources of error and arbitrariness in systems.”
Garrett, who joined the University of Virginia law faculty in 2005, received his JD at Columbia Law School, where he was an articles editor of the Columbia Law Review and a Kent Scholar, and where he first wrote articles relating to the evolving law and practice surrounding racial profile litigation. He clerked for Judge Pierre N. Leval of the U.S. Court of Appeals before joining the civil rights law firm of Neufeld, Scheck & Brustin in New York. In addition to working on high-profile police-brutality lawsuits there and with another civil rights firm, Garrett litigated cases on behalf of individuals who received post-conviction exonerations based on DNA testing, and began developing related scholarship.
One of Garrett’s first empirical studies, launched shortly after he joined the legal academy, examined every aspect of the cases of the first 250 people exonerated by DNA testing, providing the data for a series of articles, recommendations to a groundbreaking 2009 National Academy of Science report aimed at improving forensic evidence, and his first book. Widely praised and cited, Convicting the Innocent exposed critical patterns of error Garrett described as “corrupted evidence, shoddy investigative practices, unsound science, and poor lawyering.” While focused on DNA exonerations, it also functions as a handbook for identifying wrongful convictions in cases that don’t involve biological evidence, like those handled in the Law School’s Wrongful Convictions Clinic.
“When Convicting the Innocent was published we immediately adopted it as the cornerstone of the clinic’s seminar component,” said Theresa Newman ’88, the Charles S. Rhyne Clinical Professor of Law and Wrongful Convictions Clinic co-director. “It’s a remarkable text.” Several of Garrett’s ongoing inquiries aim to rectify flaws in the collection, perception, and evidentiary use of forensic science. A series of articles and a forthcoming book will explore misunderstandings about the accuracy of identification evidence presented by experts in court, such as bite mark, fingerprint, firearm, tool-mark, and DNA analyses. One goal of the project is to counter the general belief that forensics are infallible, as a first step to raising the standards for (and skepticism of) science used in court.
“Too often, there is an assumption that once a ‘match’ is declared in the opinion of an expert, the suspect must be guilty,” he said. “It is very hard to alter those entrenched attitudes, but my research shows that educating people about the sources of error, such as the fact that few crime scene fingerprints are pristine and that a lot of subjective judgment is involved in comparing imperfect crime scene prints to pristine prints, can have a real impact.”
One article in progress with UVA Law colleague Gregory Mitchell and University of California, Irvine social scientist Nicholas Scurich, “Comparing Categorical and Probabilistic Fingerprint Evidence,” details a novel examination of how laypeople evaluate new techniques that use algorithms to draw quantitative conclusions in comparing latent fingerprints. Another reports on an original study of jurors’ reactions to information on how well forensic experts fare on tests designed to assess their individual proficiency in their disciplines.
In another collaboration with Mitchell, “The Proficiency of Experts” (166 University of Pennsylvania Law Review, forthcoming 2018), Garrett calls on judges to qualify as expert only those forensic investigators who demonstrate true proficiency in their disciplines. The project entailed a review of two decades of proficiency testing of latent fingerprint examiners that revealed “surprisingly high rates of false positive identifications.” It underscored, said Garrett, both the fallibility of the science and the need for judges to go beyond credentials and experience in qualifying experts in civil and criminal trials (their responsibility under the federal rules of evidence and as originally defined in 1993 by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals).
“We’re now 25 years into the Daubert era, and nevertheless, the courts haven’t really been effective gatekeepers, so the responsibility has fallen to scientists and laboratories themselves to try to create standards,” said Garrett, who is engaged in a multi-year collaboration with the Houston Forensic Science Center relating to forensic analysis and innovation.
Garrett’s separate body of inquiry on the accuracy of eyewitness identification evidence includes a comprehensive review of eyewitness memory literature and a large-scale interdisciplinary study of jury-eligible adults to determine how expert evidence and jury instructions, as well as factors such as the confidence of eyewitnesses, influence jurors. In late August, Duke Law will host the study’s advisory board — judges, scientists, attorneys, law enforcement officials, and scholars — to discuss how the reliability of eyewitness evidence can be improved both during investigations and in court. And Garrett will offer two courses related to forensic evidence in the coming academic year: a short experiential course in the fall semester, Forensics Litigation, and a spring seminar titled Current Issues in Forensic Science, which he will teach with Professor of Law and Philosophy Nita Farahany ’04.
A broader focus on corporate crime, constitutional theory, and habeas corpus
Garrett is also a leading authority on the criminal prosecution of corporations: His book, Too Big to Jail, presented data collected from more than a decade of federal cases, analyzing the terms of settlements prosecutors negotiate with companies and finding that they often fall short in exacting punishment. Prosecutors, he argued, don’t really know how to hold complex organizations accountable, so they often use deferred prosecution agreements or structural settlements aimed at rehabilitating corporate offenders and bringing them into compliance. His “Corporate Prosecutions Registry,” created in the course of researching the book, is an authoritative resource for researchers, now with records and coded data on 3,000 corporate prosecutions since 2001 and details of deferred and non-prosecution agreements going back to 1990.
His current projects include an empirical analysis of CEO turnover and pay during and after a federal criminal prosecution and an investigation of the sorts of compliance changes companies adopt following prosecutions. Garrett is also engaged with a research consortium of compliance officers to establish standards in their field and how compliance tools can be improved.
“I’m trying to look carefully at these corporate prosecutions and figure out how we can prevent, not just punish, corporate crime,” he said. “The whole point is to prevent terribly costly crimes.”
Garrett has also tackled a range of constitutional questions throughout his career. He has written a series of articles relating to habeas corpus and the regulation of detention in various legal contexts, such as pre- and post-conviction criminal detention and immigration detention, and is working with co-author Lee Kovarsky on the second edition of their groundbreaking 2013 casebook, Federal Habeas Corpus: Executive Detention and Post-Conviction Litigation.
Changing criminal justice outcomes
With a research agenda dedicated to exposing error and injustice, Garrett is equally focused on practical reform. An ongoing empirical study of state-level death sentencing patterns, an outgrowth of his research for End of Its Rope, bolsters his argument that structural resources for defense lawyers have “an enormous impact” on sentencing outcomes. He plans further statistical analysis of the race disparities in death sentencing that he observed in his earlier research and has an ongoing empirical study of prosecutor election outcomes in all death penalty states since 1990. Garrett also anticipates a study of the geographic imposition of life-without-parole sentences also to emerge from his End of Its Rope research.
He will offer the Criminal Justice Policy Lab at Duke Law in the fall semester and will lead an interdisciplinary team in North Carolina-based policy investigations on such matters as re-entry and employment outcomes for released felons, driver’s license revocation practices, and mental health and substance-abuse treatment options as alternatives to incarceration.
“Brandon’s interests are rich, his expertise is deep, and having him at Duke means unique new opportunities for students and fruitful collaborations for the law faculty,” said Griffin. “It’s an exciting development, and we are delighted to welcome him to Duke.”