................................ America without the Death Penalty .................................. America without the Death Penalty States Leading John F. Galliher the Way Larry W. Koch David Patrick Keys Teresa J. Guess Northeastern University Press Boston published by university press of new england hanover and london To Hugo Adam Bedau Northeastern University Press Published by University Press of New England One Court Street, Lebanon, NH 03766 www.upne.com ᭧ 2002 by John F. Galliher First Northeastern University Press/UPNE paperback edition 2005 Printed in the United States of America 54321 All rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical means, including storage and retrieval systems, without permission in writing from the publisher, except by a reviewer, who may quote brief passages in a review. Members of educational institutions and organizations wishing to photocopy any of the work for classroom use, or authors and publishers who would like to obtain permission for any of the material in the work, should contact Permissions, University Press of New England, One Court Street, Lebanon, NH 03766. ISBN for the paperback edition 1–55553–639–5 Library of Congress Cataloging-in-Publication Data America without the death penalty : states leading the way / John F. Galliher . [et al.]. p. cm. Includes bibliographical references and index. ISBN 1–55553–529–1 (cloth : alk. paper) Capital punishment—United States—States. I. Galliher, John F. HV8699.U5 G35 2002 364.66Ј0973—dc21 2002004923 .............. Contents Acknowledgments vi Preface to the Paperback Edition vii 1 Introduction 3 2 Michigan’s Continuing Abolition of the Death Penalty and the Conceptual Components of Symbolic Legislation 11 3 TheDeath Penalty and Social Policy in Wisconsin 31 4 ThePower of History: Death Penalty Abolition in Maine 53 5 Abolition and Attempted Reinstatement in Minnesota, 1911–1923 79 6 Un-American Activities in North Dakota: The Continuing Abolition of Capital Punishment 100 7 TheHistory of Death Penalty Abolition in Alaska 116 8 Colonialism and Capital Punishment: Race, Class, and Legal Symbolism in Hawaiian Executions, 1826–1990 147 9 Death Penalty Abolition, Reinstatement, and Abolition in Iowa 170 10 The Life and Death of the Death Penalty in West Virginia 190 11 Summary and Conclusions 206 Epilogue Abolition in the Courts 220 Appendix Data Collection Methods 226 Notes 231 Bibliography 263 Index 275 .............. Acknowledgments The authors are grateful for financial support from Amnesty In- ternational; the Episcopal Diocese of Missouri; the University of Missouri–Columbia, Peace Studies Program; and the University of Michigan–Flint for financial support for this research. Samuel Jordan compiled the materials for the discussion of Washington, D.C., in Chapter 11, Kate McGonigal wrote part of Chapter 9 on Iowa, and Krista Myer wrote some of Chapter 5 on Minnesota. We also acknowl- edge the advice and encouragement of Hugo Adam Bedau, Samuel Jordan, Michael Radelet, Patricia Morrow, Susanne Carter, Herbert Haines, Eugene Wanger, John Bessler, James McCartney, Greg Casey, Edwin Vaughan, Steven Weinberg, and the participants in the 1998 Missouri University Peace Studies Death Penalty Abolition Con- ference. .............. Preface to the Paperback Edition Since the publication of the hardcover edition of The Death Penalty in America: States Leading the Way there have been significant changes in the administration of death penalty legislation. The number of pris- oners executed in the United States in 2003 was the fewest since 1996, and the number of death sentences imposed in American courts was fewer than in any year since 1973. Thus, the number of prisoners on death row at year’s end 2003 decreased for the third consecutive year. There is clearly a growing suspicion of this form of punishment through- out the nation, even more than we imagined when we wrote the book. Some of the credit for this reconsideration of capital punishment should be given to former Illinois Governor George Ryan. A Republi- can and death penalty supporter, Governor Ryan declared a morato- rium on executions in his state in January 2000, and in January of 2003 he either pardoned or released from death row all those under capital conviction in Illinois. Ryan argued that the administration of this pun- ishment was so flawed that it could not be allowed to continue. During the first four months of 2003 moratorium bills were introduced into the state legislatures of eighteen states. Southern Comfort Even in the Deep South, where support for the death penalty has historically been strongest, reservations have become apparent. From 1950 to 1964 the south performed 60 percent of all executions, and between 1980 and 1999 that proportion was over 80 percent. Never- ..................... vii Preface to the Paperback Edition theless, in Tennessee, for example, the rate of execution has dropped sharply. There has been a common perception that federal district Judge John T. Nixon was responsible for the suspension of executions in that state during the latter part of the twentieth century; but in fact, many of those suspensions were unrelated to Judge Nixon, who did not become a federal judge until 1980. Even more dramatic is the example of North Carolina, which car- ried out numerous executions in the recent past but seldom applies the death penalty today. Robust debates over the appropriateness of capital punishment have slowed the pace of executions in that state. Between January 1973 and December 31, 1999, twenty-three persons were exe- cuted in North Carolina. On the other hand, two hundred and fifty- four of North Carolina’s death row inmates have had their death pen- alty sentences or convictions overturned between 1973 and 2002. Court interventions, scrutiny by the media, and criticism by numerous death penalty abolitionists in and outside of government have chal- lenged the legitimacy of capital punishment in North Carolina. Oppo- sition was galvanized by the disclosure that a number of murder con- victions and consequent death sentences were facilitated through the withholding of exculpatory evidence by prosecutors and police. As a result, the North Carolina Senate in April 2003 passed a death penalty moratorium bill. The senate had support from the local press and the North Carolina Bar Association, but the house was deeply divided on the issue and blocked the initiative. Still, the issue was engaged. Many states that have death penalty legislation on the books never- theless in fact have small death row populations and predictably exe- cute few prisoners. States fitting this profile are found in nearly all regions of the country and include Colorado, New Mexico, Oregon, Washington, Nebraska, Kentucky, Connecticut, and New Hampshire. More interesting are those states that have large death row populations but have executed very few prisoners in recent years; this is true of California, Ohio, Pennsylvania, and Tennessee. Nationwide there is a growing resistance to actual execution. The number of American pris- oners awaiting execution in 1953 was 131; in 2000, there were over 3500 such prisoners, but only 85 were actually executed. Texas plays a central role in this emerging typology. In January 1995, Texas had a death row population of nearly 400, as did Califor- ..................... viii Preface to the Paperback Edition nia; over the next six years, however, Texas executed 154 compared to only 6 in California. Texas has executed nearly half of all prisoners since 1977, with the percentage steadily increasing as other death pen- alty states slow this practice. But even in Texasmost of the state’s major newspapers have supported a moratorium on executions while the death penalty system is studied. This shows that the death of the death penalty may be near, even in Texas. While public debate over capital punishment has come to the Deep South in more recent years, this development was presaged by aboli- tion efforts outside the South over nearly two centuries. This book will show how twelve American states and the District of Columbia have arrived at the situation where execution of their citizens is not used as a means of social control. Our hope is that the histories found in diverse cultural contexts will provide a path to abolition in other states. ..................... ix ................................ America without the Death Penalty .............. CHAPTER Introduction 1 In recent years, two of America’s most prominent politicians learned the peril of actively opposing the death penalty. During the 1988 presi- dential election, Massachusetts Governor Michael Dukakis stumbled in the polls after stating that he would oppose executing first-degree murderers, even, in the hypothetical case, where an offender was con- victed of killing Dukakis’s wife.1 New York Governor Mario Cuomo’s 1994 reelection loss to a political newcomer was at least partially due to his annual vetoes of death penalty bills passed by the New York State legislature.2 The current strength of the nationwide death pen- alty movement is more clearly demonstrated by the dramatic increase in the number of federal provisions that allow capital punishment, the perception of overwhelming support for capital punishment voiced by respondents to public opinion polls, and an upsurge in the number of executions that took place during the 1990s. The Anti–Drug Abuse Act of 19883 allows the execution of drug kingpins, persons who operate “continuing criminal enterprises” that kill, or recruit others to kill, in furtherance of their illegal enterprise. The federal Violent Crime Control and Law Enforcement Act of 19944 expanded the punishment of death to cover sixty offenses, three of which do not involve murder: espionage, treason, and large-scale drug trafficking. United States Supreme Court rulings since Furman v. Georgia5 have forbidden executions for non-homicidal crimes.6 Never- theless, with President George W. Bush’s nomination in 2001 of for- mer Missouri Senator John Ashcroft, a longtime death penalty advo- cate, to the post of U.S.