COVER STORY / CRIMINAL JUSTICE
Death Knell for the Death Penalty?
With growing calls for a moratorium on capital punishment, some say its days are numbered. But death penalty supporters say no way.
Death and optimism rarely mix, but these are rather unusual times in the world of capital punishment.
Last year went down in the record books as the deadliest yet in terms of executions since the death penalty was reinstated in 1976. Ninety-eight people were put to death in 1999, a 44 percent increase over the year before.
With 27 executions already through the end of March, this year is shaping up to be another record-breaker. At this rate, barring some unforeseen development, the number of executions in 2000 could easily top 100 for the first time since 1951, when 105 people were put to death.
Yet death penalty opponents are feeling more hopeful now than ever because:
• The number of innocent people who have been freed from death row is also growing, by eight in 1999 and three more through the end of March, bringing the total number of death row inmates who have been released since reinstatement to 87.
• The moratorium movement, which appears to be picking up steam in several states, posted its first victory in January when Illinois Gov. George Ryan called a temporary halt to executions and asked for an investigation of the state’s death penalty system, which has produced more exonerations (13) than executions (12) in the past 13 years.
• The latest public opinion polls reflect a continuing decline in public support for the death penalty since its 1994 peak of 80 percent, falling to 66 percent in February, its lowest level in nearly 20 years, according to one nationwide poll.
• Religious leaders and human rights activists around the world have stepped up their calls for an end to capital punishment, which has now been abolished or is no longer being used by 105 other countries, including nearly all of the industrial world.
• A growing number of former judges, prosecutors and other public officials who once were staunch defenders of the death penalty have either come out against it or have joined in the call for a moratorium.
• Pending federal legislation to improve the quality of death penalty representation for indigents and make DNA testing available to death row inmates has drawn bipartisan support in both houses of Congress.
• The number of death sentences being handed out has leveled off at about 300 a year over the past few years, while the number of death sentences commuted last year rose to five, a six-year high.
• And popular culture has become filled with pointed references to the death penalty, from movies like The Hurricane and The Green Mile to books like Actual Innocence to ad campaigns like Italian fashion giant Benetton’s recent "We, On Death Row" magazine insert.The Wind of Change
In short, death penalty foes think that, at this point, pure inertia is responsible for record numbers of executions. The indications are that the ground is shifting, that attitudes are changing, that the long and unbridled enthusiasm for the death penalty may finally be on the wane, they say.
Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., says the atmosphere is far different today than it was only a few years ago, when anti-death-penalty activists were spending most of their time in mostly losing battles to hold on to what little ground they had left.
"People have been energized, invigorated" by the moratorium in Illinois and other recent developments, he says. "There’s a sense now that, for the first time in a long time, real progress is being made."
Actually, these are the best of times and the worst of times to be a capital defense lawyer, according to George Kendall, a staff attorney for the NAACP Legal Defense and Educational Fund in New York City.
"It’s the worst of times to be in court if you’re seeking relief for a client who’s running out of appeals," he says. "But it’s the best of times to be virtually anywhere else. The churches are getting active, the public is waking up, and some politicians are starting to question their blind allegiance to the death penalty."
Stephen B. Bright, director of the Southern Center for Human Rights in Atlanta, which provides lawyers for indigent death row inmates, says the public has clearly become increasingly uneasy about the way the death penalty really works and all of the mistakes that have been made. And the fact that Gov. Ryan’s announcement of a moratorium on executions in Illinois drew virtually no criticism from anybody, says Bright, shows just how much the political climate has changed in a short period of time.
"A few years ago, any governor who imposed a moratorium on the death penalty would have been toast," he says. "And now that Ryan has done it, he’s practically being hailed as a hero."
Jane Henderson, co-director of the Quixote Center in Hyattsville, Md., which is leading a grassroots campaign for a nationwide moratorium on executions, says she thinks the tide of public opinion is definitely turning against the death penalty.
That much is clear from the growth of the moratorium movement, which has exceeded all expectations, she says.
It’s also apparent, she says, from the fact that the movement is drawing support from both proponents and opponents of the death penalty, who share the same concerns about class and race bias, the high risk of executing the innocent, and the execution of juveniles and the mentally impaired.
Also telling, Henderson says, is the fact that, for the first time in several years, there has been no legislation introduced yet this year to reinstate the death penalty in any nondeath-penalty state.
Moratorium legislation is now under consideration in six states, Henderson says, and is expected to be filed soon in at least four others. Baltimore’s city council recently became the 11th local jurisdiction nationwide to call for a moratorium on the death penalty. And more than 700 groups and 4,100 individuals have joined the movement, including 19 present and former members of Congress, two ex-governors, two former big-city mayors, several retired judges, and the relatives of more than 1,000 murder victims.
"We’re worlds ahead of where we were when we started" three years ago, she says, "and the momentum we have been building is not going to be turned back easily."
Aba President William G. Paul says the moratorium movement has made significant gains in the last few months alone, thanks in large part to Gov. Ryan’s action.
"What we see happening now shows the wisdom and foresight of what the ABA has done" in calling for a moratorium on the death pen-alty in 1997, he says.
Death penalty opponents are quick to acknowledge that the picture they paint isn’t perfect. Polls show that about a third of the population will consistently support the death penalty no matter what. Florida recently passed—and several other states are considering— legislation modeled after a 1995 Texas law that is intended to speed up executions by imposing strict filing deadlines on appeals and limiting the number of them a death row inmate can make.
In the High Court
And the U.S. Supreme Court was considering a case in early April that could have far-reaching ramifications for capital habeas corpus litigation.
In Williams v. Taylor, No. 98-8384, the Court was being asked to decide whether the federal courts may review state court decisions that can be considered reasonable even though they are clearly wrong. The 4th U.S. Circuit Court of Appeals based in Richmond, Va., had held in 1998 that such reviews are barred under a 1996 law unless the state decision is in "square conflict" with a Supreme Court precedent in an all but identical case.
The ABA, which filed an amicus brief on behalf of the petitioner, argues that because such a perfect match is unlikely ever to exist, the 4th Circuit’s holding, if adopted by the Court, would basically eviscerate federal habeas corpus.
"Oh, baloney," says Kent Schei-degger, legal director of the Criminal Justice Legal Foundation, a California-based victims’ rights group. Scheidegger was responding specifically to the ABA’s argument in Williams, but he might as well have been talking about the arguments of death penalty opponents in general.
He and other capital punishment supporters discount the significance of the Illinois moratorium, which they regard as a necessary response to a unique problem. They also dismiss the hopeful pronouncements of the opposition, which they attribute to wishful thinking.
Considering the number of death row inmates whose convictions have been overturned in Illinois, they say, Ryan was probably justified in the action he took, at least until the problems there can be identified and corrected.
But what happened in Illinois should have no bearing on the operation of the death penalty in any other state, where there has been no evidence to suggest that the process isn’t working, they say.
"The death penalty is very state-specific," says South Carolina Attorney General Charlie Condon, who says he thinks Illinois’ problems stem from a combination of overzealous prosecutors and bad luck. "To conclude that the process is somehow fundamentally flawed just because one state has had some problems with it would be a huge mistake."
"Everything is always subject to some improvement," says Scheidegger, "but I don’t think that there is anything fundamentally wrong with the way the death penalty operates, and certainly nothing so grievous as to warrant doing away with it."
Oklahoma City District Attorney Robert Macy says he’s not sure what went wrong in Illinois, but insists that it would be virtually impossible for anybody who is truly innocent to get through the entire appeals process in Oklahoma without being exonerated.
"The system has so many checks and balances," Macy claims, "it would almost have to come out somewhere along the way."
Death penalty supporters also take issue with the definition of innocence used by opponents when they talk about the number of innocent people who have been released from death row. They say the figure is misleading because it makes no distinction between legal and factual innocence.
"There’s a world of difference between not being proven guilty beyond a reasonable doubt and actual innocence," says Scheidegger. "It’s a rare case in which there is even a serious question regarding identification."
Dudley Sharp, former vice president and political director of Justice For All, a Texas-based criminal justice reform organization, says he has reviewed the 87 cases the other side considers innocent and has found only 25 involving people who claimed to be innocent and who had evidence to support their claim.
"A lot of convictions are overturned on some technicality and the prosecutor decides for one reason or another not to retry the case," he says. "Does that make the person innocent?"
In a word, yes, according to death penalty opponents, who say they make no distinction between legal and factual innocence because there is no difference between the two under the law and because there is no objective way to make such a determination.
"They’re innocent in the eyes of the law," Dieter says. "That’s the only objective standard we have."
Death penalty proponents do concede that some polls have shown that support for the death penalty is down. But they cite other polls that show people still approve of the death penalty by margins of 3-1 or more.
Macy cites a University of Oklahoma poll conducted in March that found 75 percent of Oklahomans favored the death penalty for murder. Fifteen percent were opposed to capital punishment under any circumstances. The other 10 percent were undecided.
"I can assure you there’s been no loss of support for the death penalty in this state," he says.
Death penalty supporters also say the results of any such poll depend largely on how the questions are phrased. And they contend that asking respondents to choose a single penalty for every murder is certain to skew the results in favor of life imprisonment over the death penalty.
"If you asked people what punishment they believe is appropriate for the most heinous of murders, I think you’d find that the vast majority of them would choose the death penalty," Scheidegger says.
Condon says he doesn’t need a poll to know what South Carolin- ians think. "If you asked people in this state if their feelings about the death penalty have changed, the answer would be a resounding no," he says.
If public support for the death penalty has declined, he and other death penalty supporters say, it is only because the public doesn’t understand the difference between le-gal and factual innocence.
"I think it’ll turn around again once the facts become known," says Scheidegger.
Death penalty supporters also say that proposed federal legislation that is aimed at preventing the execution of the innocent, known as the Innocence Protection Act, would impose costly and totally unnecessary new requirements on the states.
"I think it’s a tempest in a teapot," says Condon.
Appeals Process Under Scrutiny
Condon says he’s much more concerned about the long and cumbersome appeals process, which he says can easily go on for 15 or 20 years and involve 20 or 30 appeals. Even when the system is operating at peak efficiency, he says, the average appeal now takes about eight years.
"We need a system that will cut the average length of time between adjudication and execution to about five years," he says.
The fact that religious leaders or human rights advocates may have intensified their calls for an end to capital punishment is irrelevant, he and other death penalty supporters say, because Americans tend to resent outside interference in their domestic affairs. And public policy is not based on what the pope—or any other religious leader —happens to think.
Death penalty opponents say there is no reason to think that Ill-inois has a bigger problem with wrongful convictions than any oth-er state—it simply has uncovered more cases than any other state. And Illinois hasn’t investigated every death row inmate’s case, they note—just the ones about which questions have been raised.
"Only 13 of the 87 cases we know about are from Illinois," Dieter says. "The great majority are from other states, which suggests to me that the problem is nationwide in scope."
Dieter says he has no doubt that if somebody were to investigate the cases of the nearly 500 death row inmates in Texas, he or she would find approximately the same ratio of innocent people to guilty people that Illinois has found.
In fact, the percentage of innocent people on death row in Texas may be even higher than it is in Illinois, he says. That is because until recently Texas provided no funds for post-conviction representation. It still has no statewide public defender system, has highly politicized courts, has strictly enforced restrictions on the introduction of new evidence, and the governor almost never grants clemency.
Nor should anybody assume that the system works just because 87 innocent people on death row have been exonerated since 1973 when the states began reinstituting the death penalty, Dieter says.
In many cases, it wasn’t the system that was responsible for winning the inmate’s freedom, but outsiders—a group of journalism students here, a filmmaker there, a volunteer lawyer from a big-city firm with unlimited resources elsewhere.
And too much is left to chance, Dieter adds, citing the case of Anthony Porter. He came within two days of being executed in Illinois before a group of journalism students from Northwestern University uncovered evidence that was used to prove his innocence.
Even DNA evidence, which has helped free several innocent death row inmates, is highly fortuitous, Dieter says. If DNA testing hadn’t come along when it did—and if the evidence containing the DNA hadn’t been available for testing—those people might be dead now.
Dieter says he hopes the current public debate over the death penalty leads to some modest reforms that would make the process a little fairer and a little more deliberative.
But other death penalty opponents have set their sights much higher than that.
Jeff Garis, executive director of Pennsylvania Abolitionists United Against the Death Penalty, which is leading the drive for a moratorium in that state, says, "As an organization, we are not going to give up un-til the death penalty goes the way of the medieval torture chamber."
If Garis thinks that will ever happen, death penalty supporters say, he’s dreaming.
Scheidegger says he wouldn’t be so rash as to suggest that no other state would follow Illinois’ lead and temporarily suspend the use of the death penalty. But he says he is confident there will never be a nationwide moratorium on the death penalty in this country.
Texas reformer Sharp says he is not sure where the moratorium movement will lead. "But if reason prevails," Sharp says, "it will surely fail." n
Lining Up Help Online
For the lawyer representing a defendant charged with a federal capital crime or a death row inmate in his or her federal appeals, help is a click away.
The Capital Defense Network, a Web site operated by the Administrative Office of U.S. Courts, contains virtually everything a lawyer needs to know to handle a death penalty case.
Federal Resources Available
The site, www.capdefnet.org, is divided into two parts. The Federal Death Penalty Resource Counsel provides consultation and litigation support to federal defenders and court-appointed defense lawyers in federal death penalty cases. The Habeas Assistance and Training Counsel provides the same services to federal defenders and court-appointed lawyers in capital federal habeas corpus proceedings.
The FDPRC Web page offers, among other things, a brief overview of the federal death penalty process, a series of online litigation guides, a status report on every federal death penalty case, the text of all federal capital offense statutes, and cites to other relevant Web pages.
The HATC page’s offerings include an introduction to Eighth Amendment law, information about recent habeas filings in the U.S. Supreme Court, legal arguments on issues of interest to habeas litigators, compilations of successful claims on constitutional issues, and a list of experts available to answer questions or provide advice.
The site also features a password-protected private page where lawyers who are working on a specific case can discuss strategy and tactics with one of the project’s six staff lawyers, all experts in capital trial and appellate work.
Capdefnet isn’t the only online resource available to capital defense lawyers. A number of law schools operate their own Web sites. And the ABA’s Death Penalty Representation Project hosts its own site for volunteer lawyers who represent death row inmates (www. probono.net).
But capdefnet is the first and most comprehensive site of its kind, according to Houston lawyer Sam Guiberson, who is co-chair of the committee on science and technology for the ABA’s Criminal Justice Section and whose firm helped develop the site.
Guiberson says the site, which went online late last summer, is being even more widely used than anticipated. In its first four months of operation, he says, the site had more than 2,800 regular users and had registered more than 50,000 hits.
Elisabeth Semel, director of the ABA’s Death Penalty Representation Project, says law students are among the site’s regular users.
"It’s a great way to keep abreast of what’s happening in the federal courts," she says. "It’s very useful and very user-friendly."
Guiberson says the site’s creators are now seeking private funding to develop a second phase of the project, an interactive multimedia training and education program that he likens to an "online death-penalty habeas university."
Conversion Under Fire
As Virginia’s chief deputy attorney general for three years in the early 1980s, William G. Broaddus never gave much thought to the death penalty.
Not even when he presided over four executions as a member of the state’s death watch, a team of lawyers whose job it was to ensure that executions took place on schedule.
"I don’t want to give the impression that I did a lot of soul searching before coming out in support of the death penalty," says Broaddus, who also spent six months as Virginia’s attorney general before going into private practice. "I just accepted it as part of the law and the culture of Virginia."
It wasn’t until more than a decade later that Broaddus, then a partner in the Richmond firm of McGuire Woods Battle & Boothe, started thinking seriously about the merits of the death penalty. And that was only because one of his partners had been appointed to represent a death row inmate in his federal appeals and had asked Broaddus to serve as his co-counsel.
Their client was a 32-year-old Paraguayan national, Angel Francisco Breard, who had been convicted and sentenced to die in 1993 for the attempted rape and murder of a neighbor in her Arlington apartment the year before.
Against his trial lawyer’s advice, Breard had refused a plea bargain offered by prosecutors and had taken the witness stand in his own defense, where he described the crime in gruesome detail and claimed to have been acting under a satanic curse placed on him by his former father-in-law.
Broaddus and his co-counsel based their appeal on the fact that Breard had not been informed of his right to confer with Paraguayan officials at the time of his arrest in violation of the Vienna Convention on Consular Rights, to which the United States has long been a party.
The case led to an international flap. Paraguay attempted to intervene in the appeals process on Breard’s behalf and even filed suit in the International Court of Justice to prevent the execution from taking place.
Although the international tribunal issued a temporary stay, the U.S. Supreme Court refused to delay the execution on the ground that Breard had not raised his claim in a timely manner, a procedural bar which the Court said applied to the international court, as well. Breard was executed in 1998.
Broaddus says he knows that Breard was guilty. But he also says he is sure that Breard would still be alive today if he had been afforded the rights to which he was entitled under the Vienna Convention.
That’s why Broaddus is now four-square against the death penalty. "Despite the requirements of the law and the best efforts of the courts, the death penalty is handed out very arbitrarily."
Broaddus says he also has come to realize that the death penalty serves no useful purpose.
"The only reason we have it is to enable society to exact some revenge, which is a totally inappropriate motive for the state to rely on to justify the taking of a human life."
Holdouts in the Global Village
The United States is in strange company when it comes to capital punishment.
While most of the world has either abolished or stopped using the death penalty, this country is among a handful that still use it routinely.
As of mid-April, 70 countries have done away with capital punishment completely, including all of Western Europe and most of the former Soviet bloc, including Russia, Poland and the Ukraine. Another 13 countries have abolished it for traditional crimes, such as murder and rape. And 23 other countries still have it, but haven’t used it in a decade or more.
Besides the United States, 89 countries, mainly in Africa, Asia, the Middle East and the Caribbean, still have the death penalty and use it for traditional crimes. But four countries—China, the Congo, the United States and Iran—accounted for 80 percent of the 1,625 documented executions that took place in 1998, the last year for which those figures are available, according to Amnesty International.
In fact, the United States, with 68 executions in 1998, finished third among countries in the number of people executed that year, Amnesty International says, behind China, with 1,067 executions, and Congo (100), and one step ahead of Iran, which had 66.
Most of the countries that have and still use the death penalty have adopted some voluntary limits on its use. Even China, which has long been the world’s leading executioner, has begun to exhibit some self-restraint. In 1998, it signed the International Covenant on Civil and Political Rights, a 1966 treaty that specifically prohibits the execution of juvenile offenders.
But not the United States. While it has signed the same treaty that China and 142 other countries have signed, it is the only one to have reserved the right to execute juvenile offenders. It is also one of only two countries—the other being Somalia—that have not ratified the 1989 U.N. Convention on the Rights of the Child, which includes the same prohibition against the execution of juvenile offenders but does not allow signatories to attach any conditions to their acceptance that are incompatible with its terms.
No wonder. Twenty-three of the 38 states that have the death penalty permit the execution of juvenile offenders. Since 1973, more than 180 juvenile offenders have been sentenced to death. And 13 juvenile offenders in this country have been executed since 1985, more than one-third of the total number of juvenile offenders known to have been executed worldwide in the past 15 years.
Meanwhile, international pressure to end the death penalty continues to build. Last year, the U.N. Commission on Human Rights called for a worldwide moratorium on capital punishment. The United States joined such notorious human rights violators as China, Rwanda and Sudan in voting against it.
Two human rights groups are leading campaigns for an international moratorium on the death penalty. Last October, the Inter-American Court on Human Rights held, in an advisory opinion, that the United States’ failure to inform detained foreigners of their right to consular assistance under the Vienna Convention on Consular Rights violates their due process rights.
And, in December, the U.N. General Assembly endorsed the court’s findings by a vote of 121-1, which the United States was alone in opposing.
A More Humane Death in Georgia
An odd thing happened earlier this year when Georgia’s House Judiciary Committee met to consider a bill that would replace the electric chair with lethal injection as the state’s preferred method of execution.
Committee chairman Jim Martin cautioned at the outset that the issue was not the appropriateness of the death penalty but only the way in which it should be administered.
Still, Dr. Joseph Lowrey, the former president of the Southern Christian Leadership Conference, made an eloquent and emotional appeal for an end to the death penalty.
From that point on, according to Stephen B. Bright, director of the Southern Center for Human Rights, who attended the hearing, nobody talked any more about mechanics. They talked instead about innocent people who have been freed from death row; about racial disparities in capital sentencing; about the quality of court-appointed defense counsel; about whether Georgia, of all places, should even have the death penalty.
Then, Bright says, a committee member moved to strike the bill’s provisions on method of execution and another moved to adopt a moratorium on the death penalty.
The motion ultimately failed by a vote of 9-6. But the fact that it was taken so seriously shows how much the political climate has changed, Bright says. "The idea that anybody in Georgia would be talking about abolishing the death penalty would’ve been unheard of only a few years ago —it would’ve been political suicide."
Georgia lawmakers eventually passed legislation to replace the electric chair with lethal injection.
ABA Moratorium for Fairness
The death penalty and the American Bar Association’s Section of Individual Rights and Responsibilities go back a long way together.
In fact, the two have been virtually inseparable since 1976, when the section sponsored a resolution, later withdrawn, to abolish the death penalty.
In the years since, the section has either sponsored or co-sponsored every death penalty initiative to come before the ABA, up to and including the 1997 call for a moratorium, which it spearheaded.
The section also founded the ABA’s Postconviction Death Penalty Representation Project, now known simply as the Death Penalty Representation Project, and has drafted amicus briefs on behalf of the association in virtually every important death penalty case to come before the U.S. Supreme Court in the past two decades.
The ABA has taken no position on the death penalty per se, but has called for a nationwide moratorium until steps are taken to ensure that it is administered fairly and to minimize the risk that innocent people may be executed.
The ABA is also opposed to the execution of juvenile offenders and the mentally retarded; supports efforts to eliminate racial discrimination in capital sentencing; and is in favor of policies designed to ensure the competency of court-appointed defense counsel in capital cases and to preserve the independence of the judiciary in state and federal habeas corpus proceedings.
If anything, the section has come to play an even bigger role with respect to the ABA’s death penalty policies since the adoption of the moratorium resolution.
It has published two compre-hensive reports on the status of the moratorium movement, the first in September 1998 and the most recent in January.
The section has brought proponents of a moratorium together to discuss how to sustain the momentum created by the ABA’s passage of the moratorium resolution.
It continues to monitor legislative and policy developments with respect to the moratorium and serves as both a resource and a clearinghouse for information about the movement.
It is developing a model protocol for states to follow if and when they decide to conduct a study of their own death penalty laws and procedures.
It is also drafting a comprehensive plan for providing direct assistance to state and local bar associations that wish to join the moratorium movement.
James Coleman Jr., the Duke University law professor who chairs the section, makes no bones about his own opposition to the death penalty.
Coleman says he was somewhat ambivalent about capital punishment until he came to represent two Florida death row inmates in their post-conviction appeals in the early 1980s and saw firsthand how the system operates. One of the two inmates was Ted Bundy, who was executed in 1989 for the murders of two Florida State University students and a 12-year-old girl.
"What I saw offended me deeply," Coleman says. "And it led me to conclude that there was just no way the death penalty can be carried out fairly under the system we have now."
But the fact that the ABA itself has no position on the death penalty gives its call for a moratorium more credibility, he says.
"It refocuses the debate from whether or not there ought to be a death penalty to how it’s being carried out and what can be done to make it fairer and more just," he says.
Coleman says he’s proud of the ABA’s call for a moratorium. "It was the right thing to do," Coleman says. "It shows the kind of leadership that we as an organization should be exercising on important public policy issues of the day."
Mark Hansen is a legal affairs writer for
the ABA Journal. His e-mail address is email@example.com.