Capital Punishment: To kill or not to kill
By Ronnie Wright

Capital punishment has been around for most of our nation’s history. By the mid-1960s, however, public opposition to the death penalty had reached an all time high, and the practice was banned by the Supreme Court in the 1972 Furman v. Georgia decision. The Court said that state death penalty statutes were devoid of any standards, and that they therefore gave too much discretion to individual judges and juries to use the death penalty.

Soon after the Furman v. Georgia decision, states began passing new laws that provided sentencing guidelines for juries. The Supreme Court again addressed the issue of capital punishment in 1976, in Gregg v. Georgia, and it ruled that “the punishment of death does not invariably violate the Constitution.” Since this ruling, capital punishment rates have grown in the United States.

In 1994, the Federal Death Penalty Act authorized capital punishment for more than 60 offenses, including some crimes that do not involve murder. Furthermore, the 1996 Anti-Terrorism and Effective Death Penalty Act created new barriers to effective federal review of constitutional claims in capital cases. Congress and many states have also slashed funding for most of the legal representation death row inmates formerly received from death penalty resource centers.

Opponents feel that Capital punishment is unfair, costly, flawed and irreversible. They don’t believe that it is a deterrent to crime and think that it may have resulted in the deaths of many innocent people.

Regardless of one’s viewpoint about the morality or constitutionality of the death penalty, most people would agree that if we are going to continue executing people in the U.S., we should be doing it fairly and rationally. However, several factors, unrelated to the crime itself, greatly influence who gets executed and who does not: poverty and race.

The American Bar Association and many scholars have found that what most often determines whether or not a death sentence is handed down is not the facts of the crime, but the quality of the legal representation. The over whelming majority of death row inmates receive substandard legal representation. Almost all capital crime defendants are poor, and are generally represented by court appointed lawyers, who are inexperienced and underpaid.

In a two-part report written by Steve Mills, Ken Armstrong and Douglas Holt, about executions under Governor George Bush in Texas, the Chicago Tribune reported that:

The roster of attorneys who have defended the 131 men and women executed under Bush includes convicted felons, disbarred and suspended lawyers, and attorneys who were inexperienced or whose work was inept, according to the Tribune’s investigation.

At least 43 of those 131 defendants were represented at trial or on their initial appeal by a lawyer who had been or was later publicly sanctioned for misconduct by the State Bar of Texas. Trial and the initial, or direct, appeal are the two stages of a criminal proceeding where district court judges are called upon to appoint counsel for indigent defendants.

In 34 of those 43 cases, the sanctioned attorney was disbarred, suspended or given what is called a “probated suspension.” A probated suspension allows the lawyer to continue practicing if certain requirements are met, for example, seeking drug treatment or paying restitution to victimized clients. In the other nine cases the attorney was reprimanded. (Mills, Armstrong, and Holt, June 11, 2000)

By far, the majority of those facing the death penalty are not only poor but also minorities.

Studies which examine the relationship between race and the death penalty have now been conducted in every active death penalty state. In 96% of these reviews, there was a pattern of possible discrimination.

Approximately 35% of those executed since 1976 have been black, even though blacks constitute only 12% of the population. The odds of receiving a death sentence are nearly four times higher if the defendant is black than if he or she is white.

After the Justice Department issued a report, a few years ago, which showed racial and geographic disparity in federal death sentences, Attorney General Janet Reno was quoted in the New York Times as saying that she was “sorely troubled” by the stark racial disparities. The article went on to say that:

Since 1995, when a formal review process was put in place, 80 percent of the 682 defendants who faced capital charges were members of minorities. United States attorneys recommended the death penalty for 183 defendants, 74 percent of whom were members of minorities. (Lacy, Marc, and Bonner, 2000)

Janet Reno was later quoted by the Associated Press as saying “The wide variations by race and location found in the report . . . were not the product of bias in her department” (Sniffen, 2000).

Some critics of the death penalty also claim that someone who kills a white person is less likely to be sentenced to death than those who kill a black person. “According to a 1991 study, the odds of a Florida death sentence for those who kill white people are about 3.4 times higher than for those who kill African-Americans” (Becker, 2000). Becker goes on to say “There is insufficient evidence to conclude that race matters in determining who gets sentenced to death, a task force set up by Gov. Jeb Bush has concluded.”

In addition to the problems of poverty and race we are also faced with a system prone to error. A ground breaking study, which examined every capital conviction and appeal between 1973 and 1995 (nearly 5,500 judicial decisions), conducted by Professor James S. Liebman of the Columbia Law School, revealed a death penalty system collapsing under the weight of its own mistakes. This study found that:

Nationally, during the 23-year study period, the overall rate of prejudicial error in the American capital punishment system was 68%. In other words, courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.

Capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving grave doubt whether we do catch them all. After state courts threw out 47% of death sentences due to serious flaws, a later federal review found “serious error”, error undermining the reliability of the outcome, in 40% of the remaining sentences. (Liebman, Fagan, West, 2000, p. i)

In an article published in the New York Times, Caitlin Lovinger gives many examples of convicted murders exonerated and released:

Clarence Brandley, convicted 1981, released 1990 for the crime of rape and murder of a 16-year-old girl in a Texas high school. Hair left at the crime scene implicated a white man, not Mr. Brandleyk, the only black custodian at the school. One of the two chief witnesses recanted his statements in a 1986 appeal hearing, saying the prosecution and the police had pressured him into implicating Mr. Brandley; the other witness confessed to the crime. (Lovinger, 1999)

In early 2000, “Republican Gov. George Ryan of Illinois imposed a moratorium on capital punishment in his state after 13 death row inmates were exonerated” (Study: Most Death Sentences Flawed, 2000).

DNA has also played a major role in exonerating death row inmates. In approximately the last 10 or 12 years, since DNA evidence has come to the forfront, we have seen approximately 75 persons sitting on death row throughout the country being released because the DNA evidence showed that they were actually innocent of the crime for which they had been convicted and sentenced to death. You have to ask yourself, how many persons did we execute prior to the arrival of DNA evidence who would have been released, had we had that tool working for us 25, 30, or even 50 years ago? I would think that the numbers would have been about the same as they are now.

Rolando Cruz and Alejandro Hernandez were several of those who were exonerated by DNA evidence. Lovingers article has this to say about this case:

Rolando Cruz and Alejandro Hernandez were convicted for the 1983 rape and murder of 10-year-old Jeanine Nicarico in Illinois. The men, who knew one another, were jointly tried, convicted and sentenced to death. They won a new trial after the State Supreme Court ruled that they should have been tried separately. After the second trial they were convicted again, with Mr. Hernandez getting 80 years. DNA tests in 1994 implicated a convicted sex offender, Brian Dugan, who, during a plea bargain, confessed to six murders, including Jeanine Nicarico’s. (Lovinger, 1999)

Another example given involves a man named Dinnis Williams who was convicted in 1979 and released in 1999:

The 1978 abduction, torture and murder of a couple in a suburb of Chicago. The case against them and two others relied heavily on eyewitness testimony by one witness, Paula Gray, who changed her testimony several times, at one point admitting that she had implicated all four men in exchange for leniency in a different case against her. DNA samples failed to match the four men but implicated another man who later confessed to the crime. (Lovinger, 1999)

Since 1976, 77 persons have been released from death row because they were not guilty of the crime that they had been convicted for. Most of these resulted from the efforts of students, journalists or pro bono lawyers, often only hours before a scheduled execution, and usually after the condemned had been on death row for over ten years.

Although it is commonly thought that the death penalty is reserved for those who commit the worst crimes, in reality only a small percentage of death sentenced inmates were convicted of unusually vicious crimes. The majority of individuals facing execution were convicted of crimes that are no worse than the crimes committed by others who are serving prison sentences, crimes such as murder committed in the course of an armed robbery.

There are many people who argue that it is cheaper to execute than to keep these prisoners in jail for life. However, every cost study undertaken has found that it is far more expensive, because of added legal safeguards, to carry out a death sentence than it is to jail a killer for life. An example of one can be found in Information Plus:

In a lecture at Case Western Reserve Law School (1995), Alex Kozinaki, a judge on the United States Court of Appeals for the Ninth Circuit, estimated that death penalty cases cost taxpayers about one million dollars more than non-capital cases. He claimed that California spent $90 million annually on capital-punishment cases. (Jacobs, Landes, Siegel, 1996, p. 79)

In the 1980s, the N.Y. State Defenders Association conducted a study to estimate the cost of implementing the death penalty in New York (Dieter, 1992). According to Dieter “the estimates were that each case would cost the state $1.8 million, just for the trial and the first stages of appeal.”

Opponents also claim that it is a misconception that capital punishment deters crime and that social science research has discredited this claim. The majority of murders are committed in the heat of passion, and/or under the influence of alcohol or drugs, when there is little thought given to the possible consequences of the act. Hit men and other murders who plan their crimes beforehand don’t think they will get caught anyway.

Severity of punishment is not very important for most crimes. Harsh punishments are generally no more effective than milder ones if the punishment is administered years after the crime was committed.

The argument has been made, by those who favor capital punishment that we could speed up the process in order to cut the expenses. However, considering the number of prisoners exonerated and released years after conviction, allowing less time for appeals would only increase the chance of executing an innocent man.

We must be very careful with capital trails. You know, it’s one thing to convict somebody of a crime they didn’t commit, put them in prison, and lock the jail cell. If you later find that you’ve made a mistake you can let them out and they can take legal action to recover their losses. However, it doesn’t work that way with capital cases. You can’t dig up the coffin and tell the accused that you’ve made a mistake. Executions are irreversible.

There are suitable alternatives to the death penalty. Those who favor the abolition of the death penalty do not advocate releasing convicted murderers into society. The choice is not between the death penalty and unconditional release, but between the death penalty and meaningful long term sentences.

Life with no parole meets the necessary requirements of society. Granted, some innocent people will still be wrongfully sentenced to life imprisonment but since they remain alive, there is the hope of someday proving their innocence. Once a person is executed, the opportunity for him to prove his innocence dies with him (Ross, 1996).

Until we can find a way to ensure that not one single innocent person is executed we should institute a national moratorium on all executions.

Works Cited

Becker, J.. (2000, April 8). Task Force: Death Penalty Bias Unclear. St. PetersburgTimes. World Wide Web http://sptimes.com/News/040800/State/Task_force_Death_pen.shtml

Dieter, R. C., (1992, Rev. 1994). Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty. Death Penalty Information Center. World Wide Web http://www.essential.org/dpic/dpic.r08.html.

Jacobs, N. R., Landes, A., and Siegel M. A.. (1996) Capital Punishment: Cruel and Unusual?.Wylie: Information Plus.

Lacey, Marc and Bonner, R.. (2000, September 12). Reno Troubled by Death Penalty Statistics. New York Times. World Wide Web www.nytimes.com/2000/09/13/national/13DEAT.html

Liebman, J., Fagan, J., and West, V.. (2000, June 12). Broken System: Error Rates in Capital Cases, 1973 – 1995. Columbia University School of Law. World Wide Web http://justice.policy.net/proactive/newsroom/release.vtml?id=18200

Lovinger, C. (1999, August 22). Life After Death Row. New York Times, p. 4

Mills, S., Armstrong, K., and Holt, D.. (2000, June 11). Flawed trials lead to death chamber: bush confident in system rife with problems. Chicago Tribune. World Wide Web http://www.chicagotribune.com/news/nationworld/ws/0,1246,45186,00.html

Ross, M.. (Summer 1996). How Many Innocent Men Will Be Killed? Human Rights. (Vol. 23, No. 3).

Sniffen, M. (2000, Sept. 13). Disparity in Death Penalties Found. Associated Press. World Wide Web http://dailynews.yahoo.com/htx/ap/20000913/pl/death_penalty_7.html

Study: Most Death Sentences Flawed. (2000, June 12). St. Petersburg Times. World Wide Web http://www.sptimes.com/News