The Death Penalty: Sober Second Thoughts about the Ultimate Weapon in the War on Crime

By Stephen B. Bright

Vol. 22, No. 3, 2000 pp. 8-10, 20

The United States is one of the few industrialized nations in the world that retains the death penalty. Today, four nations--China, Iran, the Congo, and the United States--account for 80 percent of the executions that occur in the world each year. Thirty-eight countries have abandoned the death penalty since 1985. Only four countries that did not have the death penalty in 1985 have adopted it since then and one of those, Nepal, has since abolished it.

Only one other NATO country, Turkey, has the death penalty. It has not carried out an execution since 1984 and is expected to soon abandon capital punishment in order to join the Council of Europe, which does not allow its members to have capital punishment.

The United States is one of a very few countries that executes people who were children-under age eighteen-at the time of commission of their crimes. The United States and Somalia are the only countries that have not ratified the United Nations Convention of the Rights of the Child, which prohibits the execution of children.

Thirty years ago it appeared that the United States would, like much of the rest of the world, also abandon capital punishment. The death penalty was seldom used in the 1960s, and the United States Supreme Court declared it unconstitutional in 1972 because it was arbitrarily imposed. However, after the Supreme Court's decision, a number of states passed new capital punishment statutes that were upheld by the Court in 1976.

Today, 38 states, the federal government, and the military have laws authorizing the death penalty. More than 3,600 men, women, and children are waiting to be injected, electrocuted, gassed, shot, or hung. The number of executions carried out has steadily increased during the 1990s. Hundreds of people have been killed by the states since the Supreme Court's decision in 1976 allowing the resumption of capital punishment. More than 90 percent of those executions have taken place in the nation's "death belt," the states of the old Confederacy.

Capital punishment is one of the tragic legacies of the slavery, racial oppression, and racial violence in American history. It has also been the ultimate weapon in the "war on crime," a war the United States has been fighting against its own citizens for more than thirty years. The proponents of this war have assured us that we are demonstrating our moral outrage, that we are showing that we are tough on crime, and that those we are killing are from another species; they are animals, predators--some children are even described as "superpredators." As in a war against another nation, the proponents describe the enemy as a faceless group so evil and so lacking in humanity, feelings, and worth that their elimination is justified.

But, as in all wars, the casualties of the war on crime are human. As in all wars, there are innocent victims. Eighty-seven people condemned to die have been released in the last twenty years after their innocence was clearly established. Others have had their death sentences commuted to life imprisonment without the possibility of parole because of doubts about their guilt, and some have been executed despite questions of innocence. U.S. Representative Bill McCollum of Florida has stated that the risk of executing the innocent must be accepted if we are to have capital punishment. Those responsible for America's system of justice have gone from the concept that it is better that the guilty go free than that an innocent person be convicted, to the notion that innocent people who may be executed are acceptable casualties in the war on crime.

The American Bar Association called for a moratorium on the death penalty in 1997 because of the poor quality of legal representation provided to the poor, racial discrimination in the infliction of the death penalty, and its imposition upon the mentally ill, the mentally retarded and against those who were children at the time of their crimes.

George Ryan, the Republican governor of Illinois, declared a moratorium on executions in his state after the


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exoneration of thirteen people who had been condemned to die, one more then the twelve who have been put to death since the death penalty was reinstated there in 1977. Three were freed by efforts of journalism classes at Northwestern University.

Legislation has been introduced in both the U.S. House and Senate providing for a moratorium on executions. A bipartisan group of Senators and Representatives have introduced the Innocent Protection Act in Congress to ensure DNA testing for the wrongfully convicted and better counsel for those facing death.

But the condemnation of innocent people to death is only the most egregious and pounced example of failure of courts to deliver on the promises of fairness, equality and justice. The courts are the institutions least affected by the Civil Rights Movement. People of color have been largely excluded as judges, jurors, prosecutors, and lawyers. The decisions made in the courts reflect the racial biases of the dominant group at every step of the process from police stops to imposition of sentence.

Poor people accused of crimes often receive only perfunctory representation by court-appointed lawyers who are denied the resources required to conduct necessary investigations and present a defense. In Texas courts do not even require that defense counsels remain awake during trial. The lawyer representing George McFarland, who is now on death row, repeatedly fell asleep and snored during his trial in Houston.

Texas' highest criminal court--made up of judges chosen in partisan elections, some of who ran on platforms supporting the death penalty--upheld the death sentences in Mr. McFarland's trial and tow others in which defense attorneys fell asleep. One of those defendants, Carl Johnson, was executed in 1995.

Some have suggested that the release of innocent


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people proves that the system is working. But a court system which destroys innocent people by sending them to death row for years for crimes they did not commit is not working. A system whose most grievous mistakes are revealed not by prosecutors, police, judges, or lawyers, but by undergraduate journalism students is not working.

In truth, the criminal justice system is not working at any level. But death is unique in its enormity, severity, degradation, finality, and violence. Because death is different, a moratorium is required before more dispatched to execution chambers in assembly-line fashion in Texas and, increasingly, in other states as well.

The use of capital punishment speaks volumes about the kind of society we are and want to be. The Constitutional Court of South Africa found no place for capital punishment in the vision of a society which, in the words of one member of the Court, was moving from hate to "an appreciation of the need for understanding" and from vengeance to reconciliation. It is an example that the United States, with its long history of racial violence and oppression, may want to follow.

Stephen B. Bright is the director of the Southern Center for Human Rights in Atlanta and teaches courses on capital punishment at the law schools at Yale, Harvard, and Emory universities.

Sidebar: Harris County, Texas: Welcome to "The Silver Needle Society"

Texas leads the way among the states--to the executioner's table. With 231 people executed since 1982-146 (63 percent) of those under the five years that Governor George W. Bush has been in office Texas far and away leads the way. The annual number of executions in Texas continues to increase with thirty-three people executed to date this year (as of September 30, 2000). Virginia ranks a distant second, having executed seventy-six people since the reinstatement of the death penalty in 1976.

With Governor George Bush's presidential campaign well underway, Texas and its penchant for the death penalty have received much press. Little notice, however, has been given to the Texas county that has been so significant in helping Texas earn its dubious reputation.

Harris County, which includes Houston, has prosecuted 143 (31 percent) of the 460 inmates currently on death row. Dallas County comes in a distant second, having prosecuted forty-two (9.1 percent) of Texas' death row inmates. During the twenty-one years of "leadership" by District Attorney John "Johnny" B. Holmes, Jr., Harris County has executed more people than any other state (sixty-three), excluding Texas and Virginia. In celebration of that "accomplishment," Holmes hangs a sign in his office's death penalty unit that reads, 'The Silver Needle Society" and includes a list of all people killed by lethal injection by the county.

A close inspection of the death row inmates from Harris County reveals the racial and economic disparities in the county's capital punishment system. In a county where African Americans make up 20 percent of the population, seventy-nine of the 146 (54 percent) death row inmates from Harris County are African American. An additional twenty-six inmates (17.8 percent) are Hispanic. More than one-half (seventy-four) did not complete high school or its equivalency. Only four of the 146 were employed in white collar jobs at the time of their arrest. Sixty of the 146 listed "laborer" as their occupation prior to arrest.

There is a small possibility for change in Harris County this fall; District Attorney Holmes will be retiring to be replaced by either Democrat Jim Dougherty or Republican Chuck Rosenthal. Both support the death penalty, but Dougherty, a Houston defense lawyer, supports changing state law to allow life without parole as an alternative and to prohibit the execution of the mentally ill or disabled. Rosenthal, a career prosecutor, is a staunch defender of the current system and has sent fourteen people to death row. Rice University political scientist and pollster Bob Stein, quoted in the Houston Chronicle, does not see the death penalty as being a significant factor in the race though. "This is a Republican county in a death penalty state," he said.

Sidebar: The Death Penalty in Virginia

Virginia is second only to Texas in the number of persons executed since the reinstatement of the death penalty in 1976. In fact, Virginia's execution rate, expressed as a proportion of the state's population, exceeds that of Texas. Disturbed by those stark statistics, the American Civil liberties Union (ACLU) of Virginia conducted an indepth study of the circumstances of Virginia's startling death penalty record. The study, entitled "Unequal, Unfair and Irreversible: The Death Penalty in Virginia," and published in April 2000, examined four key aspects of the administration of capital punishment in Virginia--prosecutorial discretion in the charging of capital crimes, quality of legal representation for the accused at trial, appellate review of trials resulting in the death penalty, and race. A copy of the full report is available at www.members.aol/acluva/death.doc. Some of the startling facts they uncovered are listed below.

  • Ninety-seven percent of those sentenced to death in Virginia have been too poor to afford their own lawyers and have been represented by court-appointed lawyers.
  • The Virginia State Supreme Court has reversed fewer death sentences than any other state supreme court in the country and has never granted an evidentiary hearing or appointed an expert or an investigator to adeath penalty case. Between 1973 and1995,Virginia's supreme court found error in 8 percent of capital cases as compared to the national average of 40 percent. Texas reverses 28 percent of its cases.
  • The U.S. Court of Appeals for the Fourth Circuit, which serves Virginia, grants new hearmgs to death row inmates in 9 percent of cases in its jurisdiction and only 4 percent of cases in Virginia. This compares to a nationwide average of 39 percent among federal appeals courts.
  • Since 1978, Virginia has meted out 131 death sentences. Of those sentences, the Supreme Court has reversed exactly eleven, almost all on direct appeal.
  • In 1998 and 1999, Virginia executed eight prisoners within five years of their sentencing dates. This is the time that is used primarily by higher courts to review death sentences for fairness. The nationaXaverage time between sentencing and execution in nine years.
  • Eight of Virginia's 134 jurisdictions have exacted the death penalty for more than 10 percent of total capital murders committed in that jurisdiction between 1978 and 1997. Three jurisdictions have exacted the death penalty for more than 30 percent of total capital murders committed in the jurisdiction. They are Prince William County (64 percent), the county that shut down its public schools for six years in the 1960s in order to avoid desegregation, Danville City (39 percent), the last capital of the Confederacy, and Bedford County (33 percent), in Southcentral Virginia.
  • Black offenders who rape and murder white victims in Virginia are more than four times' more likely to be sentenced to death than those who rape and murder black victims--70 percent compared to 15 percent.
  • Trial lawyers who represented the men on Virginia's death row are six times more likely to be the subject of bar disciplinary proceedings than are other lawyers. In one of every ten trials resulting in a death sentence, the defendant was represented by a lawyer who would later lose his/her license.
  • Virginia has no mechanism through which the state's courts can consider evidence of innocence that surfaces more than twenty-one days after a defendant's final sentencing in Circuit Court. In recent years, condemned prisoners have gone to their deaths despite inconsistent DNA evidence, witness recantations, and evidence that the crime for which they were condemned was committed by another person entirely.
  • The Virginia Supreme Court has never upheld an ineffective assistance claim--a claim that the defendant did not receive fair representation--in a death case. Only once has the Fourth Circuit Court upheld an ineffective assistance claim in a Virginia capital case.
  • Because of the Doctrine of Procedural Default, any violation or error a defendant's lawyer does not identify in the first step of the appeals process is barred from consideration by any court. This undermines the idea that post-conviction review ensures that death sentences are the result of fair trials of appropriate quality.
  • According to the FBI's Supplemetal Homicide Reports, between 1978 and 1997, 41 percent of victims of apparently capital crimes were black. Yet of the 131 crimes for which a death sentence was imposed during the same period, only 20 percent of the victims were black.