Abolishing
the Death Penalty:
Not If But When
By Steven W. Hawkins
In five days in June, the U.S. Supreme Court handed down two rulings that, combined, should result in the largest number of Death Row reprieves since 1972, when the court temporarily struck down the country’s death penalty laws in Furman v. Georgia.
 |
|
The seven death penalty opponents arrested last January for unfurling their banner on the Surpeme Court steps. Courtesy NCADP. |
The two decisions—Atkins v. Virginia, which prohibits the execution of mentally retarded inmates, and Ring v. Arizona, which mandates that juries, not judges, decide on death sentences—were not entirely unexpected. Yet they sent journalists, pundits and both proponents and opponents of the death penalty into overdrive, trying to figure out what it all means. Did this one week in June represent a major step toward abolition? Has our Supreme Court suddenly discovered that it indeed has a moral compass? Or is this, to paraphrase former Justice Harry Blackmun, simply more “tinkering with the machinery of death?”
It is too early to be able to predict with confidence the effects of the two decisions. The 20 states that currently allow for the execution of mentally retarded people will have to devise a way to evaluate inmates on Death Row who submit mental retardation claims. Ultimately, the means that the states develop for conducting those evaluations will be challenged in court and challenged again. Similarly, it is not yet clear whether the Ring decision barring judges from imposing the death penalty will ultimately affect only a few dozen Death Row inmates, or some 150, or closer to 800.
State by
State
But what we do know is this: This Supreme Court will never abolish the
death penalty. We cannot rely on our nation’s judiciary to abolish it.
The only way the death penalty will be abolished is by an aggressive,
concerted, broad-based grassroots effort that demands death penalty repeal
state by state, legislature by legislature.
What should that effort look like? It must be multi-faceted.
- Death penalty opponents must be in the streets, in the state capitals, in city council chambers—even on the steps of the U.S. Supreme Court, where seven activists were arrested this past January. (They dared to unfurl a banner reading “Stop Executions.” Such First Amendment expression is never allowed on the steps of the nation’s highest court!)
- We must continue our execution vigils. In Texas, for instance, every time a human being is put to death, protesters gather in Austin, in Dallas, in Houston, in San Antonio and even in the relatively small town of College Station to mark their disapproval.
- We must continue to build a vibrant and strong moratorium movement. So far, 73 elected bodies in the United States already have passed resolutions in favor of a moratorium. The largest of these bodies is the New York City Council. But you don’t have to live in a large city to get a moratorium resolution passed; activists in Macon, GA, just succeeded in securing passage of such a resolution. And the state that has seen most moratorium resolutions passed is North Carolina, where moratorium towns include Fayetteville and Asheville.
- We must continue our marches. Successful marches and demonstrations have been held in a number of states this year, including Texas, Florida, California and Illinois. Another march is planned October 25 in Chicago, which will be host to the annual conference of the National Coalition to Abolish the Death Penalty.
We are not so very far away from achieving success—not a moratorium, which after all is hardly better than a temporary fix—but outright abolition. It can happen within our lifetime. It will happen within our lifetime.
The fact is that people are beginning to respond to concerns about the system. Two state governors, Republican George Ryan in Illinois and Democrat Parris Glendening in Maryland, have each declared a moratorium. Some 14 states have debated moratorium legislation; in New Hampshire, the legislature passed a bill abolishing the death penalty, only to see it vetoed by the governor. In Nevada and Maryland, bills imposing a moratorium passed one chamber, only to be defeated in the other. In New Mexico, a bill to abolish the death penalty failed in the Senate by one vote. Next year, as legislatures across the nation convene for their 2003 session, we can expect many more moratorium bills—and bills calling for outright abolition—to be debated.
Realities
The first step in any successful lobbying campaign is public education.
The public responds when we talk about the realities of capital punishment:
the fact that it is reserved for racial minorities, for people who are
mentally retarded or mentally ill and for people who cannot afford to
hire a good attorney. It is also all too often visited on people who are
factually innocent of the crime for which they were convicted and sentenced.
As to race and the death penalty: 55 percent of the inmates who make up America’s Death Row population are people of color (43 percent of Death Row inmates are Black.) Two of every three juvenile offenders on Death Row are people of color, as are a majority of mentally retarded inmates. Furthermore, the race of the victim plays a role in who ends up on Death Row. Nationwide, just half of murder victims are white, yet four out of every five people executed in the United States have died for killing white people.
Of course, the numbers do not paint a complete picture. Members of racial minorities have also been the victims of particularly cruel and vindictive wrongful prosecutions, particularly in the South. Consider the case of Clarence Brandley, who spent 10 years on Death Row in Texas for a crime he did not commit. Brandley was the head janitor at a high school where a young white female student was found strangled. When police arrived at the crime scene and saw Brandley, a Black man, and another janitor, who was white, one officer reportedly declared, “One of you is gonna hang for this. Since you’re the nigger, you’re elected.” Brandley was freed from prison when all charges against him were dropped after a Department of Justice and FBI investigation uncovered trial misconduct.
The death penalty and mental competence: Since executions were allowed to resume in 1976, we’ve executed 44 mentally retarded inmates. (That is a conservative figure. Many inmates are not evaluated for mental retardation before they are executed.) Those 44 include Morris Mason of Virginia who, on his way to the death chamber, turned to a prison worker and said, “You tell Roger [another Death Row inmate] when I get back, I’m going to show him I can play basketball as good as he can.” That number also includes Ricky Rector of Arkansas, who separated his pecan pie from his last meal and left it on the windowsill of his prison cell because he wanted to eat it after the execution.
The death penalty’s discrimination against those who cannot afford a good attorney: Consider the case of Ronald Keith Williamson, who was convicted in Oklahoma in 1988 and sentenced to death for a 1984 murder and rape. Williamson’s conviction was tossed out because of ineffectiveness of counsel—a federal appellate court wryly noted that Williamson’s attorney failed to investigate and present to the jury the fact that another man had confessed to the rape and murder. In this case, you get what you pay for—the attorney received only $3,200 for Williamson’s defense. Later, DNA evidence would completely exonerate Williamson.
Of course, that case is just the tip of the iceberg. Capital murder suspects have been represented by drunken lawyers, sleeping lawyers, biased lawyers, inexperienced lawyers, lawyers who were later disbarred and lawyers who were later institutionalized due to mental illness. Aden Harrison Jr., a Black man, had as his court-appointed counsel 83-year-old James Venable, who had been an imperial wizard of the Ku Klux Klan for more than 15 years. Judy Haney’s court-appointed lawyer was so drunk during the trial in 1989 that he was held in contempt and sent to jail. The next day, both client and attorney came out of the cellblock and the trial resumed. George McFarland’s attorney slept through much of McFarland’s trial. He objected to hardly anything the prosecution did, and every time he opened his eyes, a different witness was on the stand.
As Supreme Court Justice Ruth Ginsburg put it, “People who are well represented at trial do not get the death penalty. I have yet to see a death penalty case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”
One in Nine
Finally, as to the fact that the death penalty ensnares innocent Americans
in its complicated legal web: Since 1976, more than 100 people have been
freed from Death Row due to actual innocence, while close to 800 people
have been executed. That means that for every eight people we are executing,
one person is completely exonerated. What if a prescription drug cured
eight of every nine people who took it, but killed the ninth? What if
an airline carrier successfully completed eight of every nine flights
it launched, but the ninth resulted in mechanical failure? What if you
were able to reboot your computer successfully eight out of nine tries,
but every ninth time it crashed and destroyed your work? As a society
that depends upon a functioning criminal justice system, can we have confidence
when that same justice system sends innocent people to Death Row?
As Supreme Court Justice Sandra Day O’Connor put it, “If statistics are any indication, the system may well be allowing some innocent defendants to be executed. More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.”
Kirk Bloodsworth of Maryland and Clyde Charles of Louisiana should know. Bloodsworth spent nine years in prison—two on Death Row—before DNA testing of old evidence proved him innocent of the only crime for which he had ever been arrested, the brutal rape and murder of a nine-year-old girl. While he was in prison, his mother died, and Bloodsworth was forced to view her body while wearing shackles. The real child predator and killer remains unidentified.
Charles spent 19 years at Angola, one of the country’s most notorious prisons. He fought for nine years to get DNA testing done. The results proved he could not have committed the crime, and he was released. While in prison, he caught tuberculosis and developed diabetes, his children grew into adults, and both of his parents died. The same DNA test that exonerated Charles identified the real criminal, who had since been arrested for other crimes, crimes committed against innocent victims while the wrong guy was in jail.
Some death penalty proponents quibble over the number of people who have been found to have been factually innocent. The exact number isn’t really what’s important. What’s important is that no one—not death penalty opponents or proponents—would conclude that executing even one innocent person constitutes acceptable criminal justice policy in the United States.
Let’s face it. The death penalty experiment in America has been tried and found wanting. It is time for the lethal injection gurney to go the way of the stake, the guillotine and the gallows. It is time to relegate this gruesome practice to the dustbin of history. Our common decency demands no less.
—Steven W. Hawkins is executive director of the
National Coalition to Abolish the Death Penalty.
* * *
NCADP was founded in 1976 and is the only fully-staffed national organization devoted specifically to abolishing the death penalty. NCADP comprises of more than 100 local, state, national and international affiliates, of which the War Resisters League is one. For more information, please visit www.ncadp.org.