Penalty System Likened to Professional Sports
Janet L. Conley
Fulton County Daily Report
October 13, 2000
United States' capital punishment system was compared to pro sports at
a conference Thursday calling for a national death penalty moratorium.
It wasn't a favorable comparison.
The death penalty has become entrenched "as a competition sport that pits prosecutors and police investigators against defense lawyers, and pits aspiring politicians against weepy, wimpy ivory-tower academics," says Anthony G. Amsterdam, director of clinical and advocacy programs at New York University. Amsterdam was addressing about 100 lawyers, legislators, journalists and others gathered at Atlanta's Carter Center for the American Bar Association's "Call to Action: A Moratorium on Executions."
Amsterdam called for the halt in executions to give the lawyers involved time for reflection outside of competitive conditions and to give states an opportunity to revamp flawed capital systems that have led to, among other things, prosecutorial misconduct, flouting of due process guarantees, racial discrimination and the execution of people who were juveniles when they committed the crime for which they were convicted.
Continuing executions under the present system, he said, would be a "perennial Olympiad in which states' lawyers and defense counsel strive to win their laurels and to take their places beside John Wayne and the Marlboro Man on the billboards of the American soul."
It was a lively beginning to a conference about saving lives, or at least some lives.
Convened by ABA President Martha W. Barnett, a partner in Holland & Knight's Tallahassee office, the program is a more aggressive vocalization of a stance that the ABA took in 1997, when it first called for the moratorium. Despite three years of ABA policy, at present only one U.S. state -- Illinois -- has adopted a death penalty moratorium.
PROBLEMS WITH ADMINISTRATION OF DEATH PENALTY
In many of the other states, Barnett said, there still are problems with the administration of the death penalty. She listed a lack of competent counsel, inadequate funding for counsel, racial and geographic discrimination, and a shift from "procedural guarantees to procedural niceties."
Lawyers are called to action, Amsterdam said, because "like it or not, the power and responsibility to administer decisions of life or death have been put into the hands of lawyers."
So far, according to speaker James S. Liebman, a law professor at Columbia Law School, lawyers and judges aren't doing the greatest job.
Citing a study of capital cases between 1973 and 1995, Liebman said data showed that 68 percent of all capital judgments were so flawed, they could not be carried out. In 26 states, the reversal rate for capital convictions was 52 percent or higher. The error rate in capital cases also was high, he said, ranging from a low of 18 percent in Virginia to a high of 91 percent in Mississippi. Georgia's error rate was 80 percent.
Of the documented errors in Georgia, 80 percent were significant, he said. For example:
• 39 percent involved ineffective assistance of counsel;
• 20 percent involved misinstruction of juries;
• 19 percent involved prosecutorial misconduct; and
• 4 percent involved biased judges or juries.
Imagine what would happen if jets or tires had this level of errors, defects or failures, Liebman said.
David I. Bruck, a Columbia, S.C., sole practitioner who works part-time for the Federal Death Penalty Resource Counsel, said the federal capital system is no better.
Despite better pay for federal defenders and a three-tier review of prosecutorial discretion, a U.S. Department of Justice census showed severe racial disparity in the system, said Bruck. Seventy-five percent of those indicted for crimes eligible for capital punishment are minorities, and 79 percent of those on federal death row are minorities, he said.
As of now, 19 people on death row were sentenced by federal courts. This autumn, the federal system is scheduled to conduct its first executions since certain capital crimes were federalized beginning in 1988. Is this what we want the face of United States' justice to look like? Bruck asked.
Justice hasn't looked good in some of the cases that the ABA speakers discussed.
WHILE LAWYER SLEPT
Amsterdam mentioned Texas defendant Calvin Burdine's case in which, on June 5, a deputy solicitor general argued to the 5th U.S. Circuit Court of Appeals that Burdine had received effective assistance of counsel even though his defense lawyer admittedly slept through substantial portions of his trial. The 5th Circuit has not yet decided the case.
Steven B. Bright, director of the Southern Center for Human Rights, a group that defends death row inmates and others, gave another specific example of the system's unfairness to capital defendants.
He mentioned Exzavious Gibson, a Georgia defendant whose IQ has tested at between 76 and 82. When Gibson asked for a lawyer at his first post-conviction hearing, he was told by a Butts County judge that he wasn't entitled to a state-paid attorney.
"Of course, the state was not represented by someone with an IQ of 82," Bright said. "As far as we know."
Speaker Michael McCann, the district attorney for Milwaukee County and the lawyer who prosecuted serial killer Jeffrey Dahmer, said a moratorium on executions is needed to give jurisdictions time to take a close look at their problems, particularly suppression of evidence.
USE HALT IN EXECUTIONS FOR 'AUTOPSY' OF CASES'
McCann suggested using moratorium time to perform what he called "an autopsy" of the capital cases that went wrong.
He also recommended considering criminal penalties for prosecutors who engage in misconduct or suppression of evidence, establishing a written policy in Das' offices about discovery and creating internal penalties for noncompliance; creating open discovery rules allowing defense attorneys access to prosecutors' materials; having judges or the bar impose sanctions on prosecutors who conceal evidence, and barring DAs who conceal evidence from ever trying another capital case. There are arguments against a moratorium on executions.
As Bruck pointed out, one of those sentenced to die under the federal system is Timothy J. McVeigh, convicted of the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City. The bombing killed 168 people and injured 850.
Although any delay in carrying out that sentence would be very unpopular, a moratorium still is warranted because "You look at whether the rate of error, the rate of fairness, is acceptable," he said.
Another speaker, Lawrence C. Marshall, a Northwestern University law school professor and director of the Center for Wrongful Convictions, described the moratorium this way: "This isn't about whether you support the death penalty. It's about whether you support the death penalty for the guilty."