DEATH PENALTY FOCUS A non-profit group dedicated to the abolition of the death penalty

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Death Penalty Focus of 510-452-9505 MYTHS AND FACTS California's Death Penalty

MYTH: EXECUTION IS FACT; It costs more to execute a person than to keep him or her in prison for CHEAPER THAN life. In March of 1988, The Sacramento Bee reported that it costs at least $ 1 IMPRISONMENT. million to prosecute a capital case at the trial and appellate levels. The Bee concluded that California could save $90 million a year if the death penalty were abolished. The costly process of appeals is necessary to prevent the execution of innocent people. Even with our system of Judicial review in capital cases, 23 innocent people have been executed this century and over 300 innocent people have been convicted of capital crimes.

MYTH: THE DEATH FACT: Killing is not a Just punishment for killing. We do not burn the homes PENALTY IS JUST of arsonists or sexually abuse those who rape; it does not make sense to kill PUNISHMENT FOR someone who has killed. There is no question that a murderer should be punished - but not by executing him or her.

MYTH: THE DEATH FACTt Scientific studies have repeatedly shown that the death penalty does PENALTY DETERS NOT deter crime any more than other punishments. U. S. Supreme Court Justice CRIME. Thurgood Marshall has said, "The death penalty is no more effective a deterrent than life imprisonment."

MYTH: TO BE SAFE, FACT: Since 1978, California has provided for life sentences without the WE MUST EXECUTE possibility of parole. That means that the public can be assured that those who MURDERERS. commit atrocious and receive Life Without Parole will never be free again. In the meantime, executions have a brutalizing effect on society and divert our attention from addressing the root causes of crime.

MYTH: THE DEATH FACT: Local politics, money, race, and where the crime is committed can play PENALTY IS FAIR a more decisive part in sending a defendant to the death chamber than the circumstances of the crime itself. Additionally, innocent people have been executed and this injustice can NEVER be rectified.

MYTH: RACE HAS FACT: Racism is an important factor in determining who is sentenced to die. NOTHING TO DO WITH In 1987, the U.S. Supreme Court case of McCleskevv. Kemp established that in CAPITAL PUNISHMENT. Georgia, someone who kills a white person is more than four times more likely to be sentenced to death than someone who kills a black person. The race of the defendant as well as the race of his or her victim plays a decisive role in who gets the death penalty. More than half of the individuals on California's death row are people of color.

MYTH: THE DEATH FACT: Families of murder victims undergo severe trauma and loss which no PENALTY OFFERS one should minimize. But executions do not help family members heal their JUSTICE TO VICTIMS* wounds. The extended process prior to executions prolongs the agony of the FAMILIES. family. It would be far more beneficial to the families of murder victims if the funds now being used for the costly process of executions were diverted to provide them with counseling and other assistance.

MYTH: OTHER FACT: The vast majority of countries in Western Europe and North and South COUNTRIES USE THE America have abandoned capital punishment. The United States is now in the DEATH PENALTY — company of countries like Iran, Iraq, and China who have longstanding records "LIKE US". of human rights violations. MYTH: THE BIBLE FACT: Although isolated passages of the Bible have been invoked in support SUPPORTS THE DEATH of the death penalty, most religious groups in the United States regard executions PENALTY as immoral. Literal interpretations of selected passages from the Bible used to defend capital punishment corrupt the compassionate spirit of Judaism and Christianity - a spirit which urges humane and effective ways of dealing with crime and violence. Death Penalty Focus of California Is an organization dedicated to the abolition of Death capital punishment. We believe the death penalty Is an Ineffective approach to the serious problem of violent crime. Moreover, by diverting our attention and financial [Penalty resources away from preventative measures that would Increase our personal safety, the death penalty actually causes more societal violence. By capitalizing on our !Focus compassion for victims of violent crimes and the fear politicians cling to the death penalty as an expedient symbol of their tough-on-crime stances. Death Penalty Focus of believes that when the public Is Informed about the racism. Injustice and costs associated with the death penalty, they will join citizens of every other Western California Industrialized democracy In choosing responses to violent crime. Death Penalty Focus is governed by a Board of Directors comprised of 30 renowned political, religious and civic leaders, as well as legal scholars and attorneys who are involved in death penalty litigation and penal reform. In addition, the organization has an Advisory Board composed of community leaders and entertainers who support Death Penalty Focus' work to abolish the death penalty. Death Penalty Focus sponsors ongoing public educational campaigns, research and demonstrations against the death penalty. The organization also serves as a liaison among anti-death penalty groups In California and nationwide. Among the activities Death Penalty Focus undertakes on a regular basis are the following: * Distributes thousands of pieces of educational materials such as "Myths and Facts About California's Death Penalty." * Co-sponsored a poll conducted by Field Research Institute, that exposed many misconceptions about the death penalty. Most notably, it revealed that when given a choice, a substantial majority (67%) of Califomians prefer the penalty of life in prison without parole and restitution to the victim's family over executions. •* Enlists volunteers for the Death Penalty Focus Speakers Bureau to present these issues to service organizations, church groups, schools, legal and other professional associations. * Publishes a quarterly newspaper, The Sentry, that is distributed widely throughout the state and to other organizations working against the death penalty. * Mobilizes abolitionists for rallies, demonstrations, vigils and other public campaigns to oppose executions. * Sponsors the Legal Tracking and Research Project, which monitors and advises on pending death penalty prosecutions in California. The data collected by the Legal Tracking Project are used in research projects to examine racism, cost and other issues pertaining to death penalty. * Appeals to the public through newspaper advertisements on death penalty issues, including a series of full-page public education advertisements In The New York Times. the San Francisco Bay Guardian and L.A. Weekly. Board members and other spokespersons also engage in active media campaigns, including broadcast and print reviews and speeches on capital punishment in a diverse range of public forms.

For further information, please contact Pat Clark, Executive Director; Death Penalty Focus of California, at 510-452-9505 THE DEATH A few cyanide pellets or jolts of electricity versus a lifetime of Imprisonment looks like a great savings to taxpayers. But virtually every study on the Issue of cost proves PENALTY that executions are far more expensive than life in prison without parole. From the moment a capital murder investigation begins, through the trial stages and finally to the COSTS punishment phase, a capital case is more expensive than a non-capital charge at every level. The potential savings are dramatic. In March 1988, the Sacramento Bee reported TAXPAYERS the state of California could save $90 million dollars a year by abolishing the death MORE penalty. THAN LIFE In a 1992 study, the Dallas Morning News determined that executions in Texas cost $2.3 million - $ 1.55 million more than 40 years in Texas* highest security prison. The Miami IN PRISON Herald calculated that one execution in costs $3.2 million. The New York State Public Defenders Association concluded executions in that state were three times as expensive as life in prison.

Capital cases are an expensive luxury in the criminal Justice system. Since 1990, the state government shifted much of the financial burden of death cases to the county level. In the current economic climate, counties in California are planning or are in the process of cutting essential social services to pay for exorbitantly expensive death penalty trials. Monterey County is pursuing three capital trials with a total price tag of $ 1.5 million to the county. Simultaneously, the county is considering cuts in sheriff and police protection to cover a projected $2.5 million budget shortfall.

Streamlining the appeals process will not result in substantial savings. It is unlikely to save much money or markedly reduce the time to execution. When the Supreme Court reintroduced the death penalty in 1976 it was with the understanding that "death is different." Because of its severity and finality the court insisted on systematic guarantees the trial would be as unbiased as possible. These guidelines , known as "Super Due Process," are expensive. Simply put, the time-honored, constitutionally- protected right of due process is irreconcilable with inexpensive capital trials.

Resources

Spangenberg, Robert and Walsh, Elizabeth. "Capital Punishment or Life Imprisonment: Some Cost Considerations." Loyola of Los Angeles Law Review. Vol. 23: 45-58, 1989. Tabak, Ronald J. and Lane, J. Mark. The Execution of Injustice: A Cost and Lack-of- Benefit Analysis of the Death Penalty." Loyola of Los Angeles Law Review. Vol. 23: 45- 58, 1989. Garey, Margot. The Cost of Taking a Life: Dollars and Sense of the Death Penalty." U.C, Davis Law Review. Vol. 18, No. 4, pp. 1221-1273, 1985. New York State Defenders Association, Inc. Capital Losses: The Price of the Death Penalty for New York State. Albany, NY: 1982.

Death Penally Focus of California 510-452-9505 Sunday, April 12, 1992

an 3ose Jflerotru Alameda County Serving Northern California Since 1851 Edition Taxpayers pay high price for Executions cost more than life imprisonment ty charge almost guarantees a don't deal with guilr or innocence, Schoo l 'Wha t they're saying is • DEATH COSTS long and costly court battle such as competency (if attorneys that Ihe way we should dea lwnh death penalty from Page IA Wherea s the overwhelmin gma- David Puglia . a spokesma nfor cost is noi be so (.ari'ful Krankly state agency has ined to calculate jority of felony case sare resolved the siale attorne y general' snl- I find tha t a very scary pros- the total cos t of imposing thi- with pretrial guilt ypleas ,often to fice. say sthe stale prosecuting pec t" Cost of one execution dwarfs death penalty, in pan becaus eof reduced charges ,few defendants attorneys 'foe salone for the liar Frank '/Cimring .directo rof the differing record-keepin gproce- are willing to plead guilty when ris appeal s tota l more Ihan Karl Warren 1-ega lInstitute at the cost of imprisonment for life dures of various office sinvolved the penally is death $760.000 That figure does not Universit yof California at Berke- and the confidentiality of certain include court costs, defense attor- ley's Boalt Hall, agrees "The BY MICHAE DORCAL N Longer pretrial Investigations ney fees , the prosecutin gattor- Utmry Nlwi Suff WnUr expenses. problem wilh all of this is that But every recent stud yindi- At the pretrial stage, the inves- neys 'support staff or the $2E>.000the way t odrive the cos tdown i.t People might reasonably assume that the cost of cates that executions com ewith tigations of both the defense and a year it costs to house an inmate to pay less attention to due pro- an execution is little more than the price of a few big price tags: prosecution typically take three at San Quenlin Prison cess matters and to drive the vol poison pellets. The Dallas Mornin g News cas- ume up The more we execute • to five times longe rin capital Taxpayers foot the bill But the death penalty is an expensive luxury item last month calculated that the 46 es than non-capita l cases ,accord- the cheape rit cosis on a per case in the criminal justice system. If the additional court executions in Texas since 1977 ing ro Robert Spangenberg a. Bos- Because ihe majority of death basis." tal- each cost an average of $23 mil- ton-based legal consultan twho penalty defendanl sdon' t have costs, attorney fees and appeals expenses are money . California laxpayers of- Jim Thomson, past chairman (if lion. That compares to $760.000 has done studie s for numerous the death penalty committe eof lied, each of the California executions likely to take len fool ihe bill for ihe entire for locking someone up for 40 governmen tentities the n.OOO-mcmbe Californir a Ai place in the coming years will cost millions of dol- defense case , which include sthe years in the highest-security Tex- One reason lawyers lorneys for Criminal Justice, lars — many times the cost of life imprisonment. is that fees of two attorneys as prison blames part of the costs on over "They're a differen t animal," Robert Bryan, a San must prepare for a trial that con- Supporters (if the death penal- • A review of Klonda execu- zealou sprosecutors li,e says only Francisco attorney who has tried more than 100, sists of two distinc t proceedings ty, including stale Attorne yGen- tions by the Miami Herald in 1088 one out of 10 death penalty <-;i.srs says of death penalty cases. "The politics of death is The firsi determine * a defen- eral Dan l.iingri'n, don'i di.spiur concluded that death penally cas- dant's guilt or innocence ;the sec- ends with a death vcrdu- l and a bottomless pit that sucks everybody in." es there cost at least $32 million the high cost of capita l case sItut ond decides whethe rthe defen- they argue thai ihose costs are cites that ai evidenc ethat prose- Precise costs are impossible to determine. No each. cutors "overcharge" many crimes dant goes to prison or the gas due 10 inefficiencies • In the only recent, compre- in part in ihe becaus ethey view death-penalty . See DEATH COSTS, Bock Page chamber slate and federa l systems hensive review of death penalty cases as beneficia l to their ca- costs in California, the Sacramen- The two-liered irials often last Uungren said in an interview for severa lmonths, at an estimat- lhal he thinks the lime between reers to Bee in 1988 estimated that a Even if savings can be return to the historical rate of six ed cost of more than $7,000 per conviction and executio ncan be day in California. And even when shortened to aboul two years if achieved ,Lungren concedes that executions per year would cost ihe death penalt ywill continue to $90 million per year — $16 mil- the outcome is a death sentence, state and federa l courts further punish taxpayer sas well as mur- lion per execution. That com- the battle has barely begun All streamline procedures Among derers pared to less than $1 million to death verdicts are automatically the changes he would like to see "1 look at from a cost- imprison an inmate for 40 years, appealed to the stale Supreme at the state level are quicker ap- don'l it effectiv estandpoint." he said the average life expectancy Coun. and mosl resull in numer- pointments of defense attorneys "The death penalty shoul dnot be The reason behind the high cost ous petitions to federal courts to handle appeal sand rule alter- imposed becaus eit's cheape r to of capita lcases is that lives are ai For example, Robert Alto nHar- ations regardin gcertification of people than keep them stake .Even though it has stream- ris — who on April 21 is sched- trial records At the federal level, kill to in prison but becaus eit's appropri- lined procedures ,the US . Su- uled to become the first person to he called for courts to include all preme Court has repeatedly ruled be executed in California in 26 habeas corpus issues in one filing ate punishmen l for heinous that special safeguards must be years — was convicted of a dou- Uungren says such changes crimes and because u is a deter- in place when prosecutors seekble murder in 1978 His execution would not threaten constitutional rent." the ultimate punishment. has been delayed by the filing of protections. Many legal experts, On those points, too. Zimnng All of those safeguards cost eight stale habeas corpu speti- however ,are deeply skeptica lof and others disagree Noting thai money At every leve l— pre-tri- tions, which look three years to streamlining death penally cases only I percen t of all murderers resolve. They were followed by end up on dealh row. Zimnng de- al, trial and post-trial — death prospect' cases tend to require greater par- three federa lhabeas corpus peti- 'Very scary scribed ihe dealh penally as a ticipation from investigators ,de- tions, which look 10 years to re- "Much crilicism (of court inef- "dislracuon" from the search for fense attorneys , prosecutors, ex- solve. Habea scorpus petitions ficiencies) is a hidden agenda," answers 10 the underlying prob- pens, jurors and judges. are used to challenge verdicts by says Gerald Uelmcn, dea nof the lems of crime and ihc criminal Just the filing of a death-penal- raising a variety of issues that Sanla Clara Universit y Law justice system ' \ 1 ' \ \ No Study I he death penalty will not save innocent lives by reducing the numbers of Proves murders. Most studies on this issue conclude there is no evidence to suggest that fewer murders are committed out of fear of the death penalty. In fact, some studies point to Conclusively higher murder rates following executions. The The widely respected Thorsten Sellin studies conducted in the United States in 1962, Death 1967 and 1980 concluded the death penalty has no deterrent effect. Furthermore, FBI statistics from 1978 to 1988 show that murder rates in 12 states, that routinely carried Penalty out executions, is exactly twice that of 13 states with no death penalty (106 per million, Deters Crime versus 53 per million). The 12 death penalty states also have the highest rate of police officers being murdered (4.9 per million population), while the 13 states with no death penalty, like Massachusetts, have the lowest rate (nearly 50 percent lower, at 2.7 per million). Another study showed that within one month of every execution in New York since 1930 there were two to three more murders than the murder rate predicted, possibly due to a "brutalizing effect" state sponsored killing encourages. Since abolishing the death penalty in 1976, Canada's murder rate has declined. In 1987 the Canadian Parliament rejected an attempt to reinstate the death penalty. The British Royal Commission on Capital Punishment analyzed statistics from seven European and three non-European countries which reported no evidence that linked abolition of the death penalty to increased homicide rates. The 1988 Report to the United Nations Committee on Crime Prevention and Control, a detailed international study, found that all of its documented research "has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment." "The Death Penalty makes a good sound bite, but it does not make the streets safer," Georgia State Senator Gary Parker told the House Judiciary Subcommittee on Civil and Constitutional Rights in May 1990. The death penalty has symbolic and political value to politicians, but it has no value to black neighborhoods that are plagued with violent crime. Concentration of resources on a few high-profile capital cases helps a prosecutor, attorney general or governor get re-elected or advance to higher office, but it hurts the fight against crime by diverting resources from hundreds of other cases, as well as from problems that are affecting the day-to-day lives in the black community." Crimes of passion, crimes committed by the mentally handicapped and economically motivated crimes are not deterred by the death penalty. There are, however, proven ways to reduce these crimes through social programs such as counseling, mental health services, job training and employment opportunities. Money could also be spent on proven anti-crime measures such as more — and better equipped — police. The time has come for those who talk of concern for crime deterrence to put their money where it will have proven results.

Death Penalty Focus of California 510-452-9505 San Jose Mercury News • News « Tuesday, March 24,1992

How states rank Death penalty riddle lingers on executions One hundred, loriy-three peo- ple were executed in the Unit- No solid answer on whether executing a killer might.deter others ed States from 1976 through 1990. Execution* BY JACK FISCHER x severely punished, 60 percent to Mf miry Kw* Suff Writer 70 percent of the public national- SUte* that have executed If California executes Robert ly have supported the death pen- people since 19^6: Alton Harris next month as alty for years. Texas 37 planned, it will do so without In California, according to Florida 25 knowing the answer to perhaps Mark DiCamillo of the Field poll, Louisiana 19 the single most important ques- support has grown steadily since Georgia 14 tion about capital punishment — the first polls were taken in the will Harris' death deter even one 1960s. In a 1986 Field poll, slight- Virginia 11 other would-be killer? ly more than 80 percent of those Alabama 8 questioned supported the death Nevada 5 The public favors the death Missouri penalty and many politicians em- penalty. 5 brace it, but despite decades of The first important study of Mississippi trying, social scientists have been the deterrence of capital punish- South Carolina unable to prove that capital pun- ment was conducted in 1959 by ishment has any clear effect in Thorsten Sellin, a nationally re- Utah deterring murder. nowned sociologist at the Univer- Arkansas With the state's decision to exe- sity of Pennsylvania hired by the Indiana cute Harris on April 21, ending a American Law Institute, which Illinois 25-year hiatus in California's im- wanted help deciding whether to position of the death penalty, de- include a death penalty statute in bate about capital punishment its model criminal code. Stales with death penalty but has been revived. SelHn compared homicide rates no execution* tince 1976: While common sense suggests in death penalty states with those California, Maryland, that the greater the penalty, the in states lacking it. By using Tennessee, New Mexico, greater the deterrence, attempts neighboring states with similar Arizona, Kentucky, to prove that theory have bogged social and cultural values, he at- Pennsylvania, Ohio, New down in the complexities of the tempted to minimize extraneous Jersey, Connecticut, Delaware. factors, such as widely differing Montana, Washington, real world, social scientists say. Wyoming. Colorado, Oregon, What you find, it seems, de- incomes, employment rates and styles of administering justice. Idaho, Nebraska, South pends on xvhat you go looking for. Dakpta. New Harnpshira The deterrent value of capital Next, he studied states that en- punishment has been "dis- acted or abolished death penal- Without the death penalty: proved," "proved" and "dis- ties. District ol Columbia, New proved" again since the first seri- "The inevitable conclusion," he York, Michigan, Alaska, West ous studies of the issue in the !ate wrote, "is that executions have Virginia, Rhode Island, 1950s. no discernible effect on homicide Wisconsin, Massachusetts, death rates." Hawaii, Kansas, Minnesota, Massaging the data Maine, Vermont, iowa. North The unknown "It's possible to massage the Dakota. data to make it appear there is a Critics said unknown variables Sourca: Sourcaboc* of Criminal Justlc* deterrent effect and then, by may have skewed the results and Slatfctfct, Work) Almanac ; changing the approach, to make they suggested that there may be the evidence go away," said Tufts no two areas similar enough to University philosopher Hugo Be- avoid such distortions. But the first serious challenge dau, who has studied the death MAX RAMRCZ — CAJFORMA LAWYER MAGAZINE study, tod, was flawed, saying penalty for more than 30 years. to Sellin's work didn't come until "provides no useful evidence The problem, researchers say, Robert Alton Harris, who is scheduled to die on April 21, finds himself 1976, when University of Chicago the deterrent effect of capii is that no study yet devised has the focus of a recurring debate; is the death penalty a deterrent? - researcher Isaac Erhlich used a punishment." isolated the effects of the death sophisticated mathematical and Ultimately, says Zimring, virt penalty on homicide rates from the nature of the U.S. justice sys- Unless revenge is the motive, statistical approach similar to one ally all countries thut have ab- other social factors that may af- tem makes that unlikely. Zimring argues, the real debate is used by economists. islied the death penalty hn fect the reasons people kill each "Maybe if we had 10,000 exe- not whether the death penalty Ehrlich's study, an econometric done so because of changing at other, such as unemployment cutions," it might make a differ- deters murder but whether it de- model that considered far more tudes about the morality and el rates or the availability of guns. ence, Franklin Zimring, a death ters better than other punish- variables then Sellin's, stunned ics of capital punishment — n Since social scientists can't con- penalty expert and law professor ments, such as life imprisonment. the academic community. Accord- academic debates. duct a cor ,-ntional, controlled at the University of California, But that hasn't been shown ei- ing to Ehrlich, "the empirical "There is nowhere in the woi study they . * turned to a variety Berkeley, has said. "But we don't ther, he said. analysis" showed that every exe- where abolition has occurr of less-rei:a!.ie research methods live in that kind of world." "There are two things that we cution during the years he stud- principally because of the sue that haven't proved equal to the Zimring added that even when do know: If there is any provable ied — 1933 through 1967 — tific findings," Zimring said. "T complexity of the task. executions peaked in the 1930s, marginal deterrence out there, it saved eight innocent victims from biggest question is always . That's not to say the death pen- with 199 carried out nationwide has to be small enough to have being murdered. should it be within a gover alty could never deter a crime. in one year, no deterrent effect escaped detection in a whole se- The findings sent shock waves ment's power to take a citizei Some criminologisls speculate was demonstrated. And even in ries of experiments over the through academic and public poli- life? That's the real debate." that if the death penalty were that record year, there was still years," he said. cy circles, prompting the National imposed immediately and inevita- only one execution for every 100 But because of either a contin- Academy of Sciences to name a RELATED STORY. PAGE 4B ~ bly for murder, it might have an criminal homicides. Today, the ued belief in deterrence, or simple panel to review the study. That • Gov, Wilson says he'd *• observable deterrent effect, but ratio is about one in a thousand. . satisfaction in seeing wrongdoers panel concluded that Erhlich's clemency for Rob**** ALTERNATIVES Despite objections to the death penalty, many people support executions fearing that overly-lenient parole boards will put murders back on the street. This misconception TO THE persists even though California has sentenced over 1000 people to life in prison without the possibility of parole since 1977. As with Inmates sentenced to death, only In DEATH extraordinary circumstances will the governor Intervene to release any of those SENTENCE prisoners. Since the Supreme Court re-authorized the use of the death penalty In 1976, most media attention on the Issue assumes capital punishment enjoys overwhelming popular support. Admittedly, many reputable studies have put the approval rating as high as 80 percent among California voters. However, when confronted with specific alternatives that keep murderers in prison, the apparent maj ority evaporates. In a Field Institute study, only 26 percent of Californians agreed with the death penalty when given the option of "life in prison for keeps." The Gallup Poll shows similar responses nationwide. Support for the death penalty drops from 76 percent to 53 percent when life in prison without parole is offered as an alternative. Several have conducted polls about support for alternatives. In Florida, 70 percent said they preferred a sentence of life without parole and financial restitution to the victim's family. In New York, 62 percent of voters preferred life plus restitution, hi Virginia, 59 percent preferred a sentence of 25 years before parole, plus financial restitution; In Nebraska, 58 percent preferred this arrangement. Even where restitution is not part of the life without parole option, a plurality of those polled in Kentucky and Oklahoma still prefers it over the death penalty. Life in prison without parole is cheaper; more in-tune with the evolving worldwide standard of decency; prevents executing Innocents; is as effective In deterring crime; keeps criminals from repeatedly harming society; and is popularly demanded.

Resources

Rev. Virginia Mackay. "Restorative Justice: Toward Nonviolence," Louisville, KY: Presbyterian Church (USA), 1990. Zlmring, Franklin E. and Hawkins, Gordon. "Capital Punishment and the American Agenda," New York, NY: Cambridge University Press, 1986. von Hirsch, Andrew. "Doing Justice: The Choice of Punishments," Boston, MA: Northeastern University Press, 1986. The Fellowship of Reconciliation, "Instead of the Death Penalty." Nyack, NY: Capital Punishment Project. Wood, Arthur Lewis. The Alternatives to the Death Penalty," The Annals of the American Academy, Vol. 284, November 1952.

Death Penalty Focus of California 510-452-9505 Los Angeles, CA (Los Angeles Co.) Daily Journal (Cir. 5xW. 20,000)

APR 2 4 1992

JUien's P. C.B. Est. 1888 - The LWOP Alternative Public Favors Life in Prison as the Ultimate Sanction By Mary.EII.enJjeqry. ^ftia but there are 977 serving the irrevo- put the costs of the death penalty for cable life terms. the taxpayer at two to three times that alifornia's execution of ^Robert One thing the jurors know that the of a life sentence. Recent moves to is general public may not is just how tight speed up the process and limit appeals Cwidely expected~to~open the California's sentencing law now is. In may save only a portion of the costs floodgates to public executions across 1978 the legislature redefined life with- now incurred by legal appeals. 1 the United States. Yet even as five out parole to require 30 years in prison Beyond these pragmatic consider- more men were added to San Quentin's before any move for clemency can be ations, there is also the impact a grow- death row in the scant few days it took made, a clemency that is the exclusive ing repugnance towards capital punish- Governor to reject Harris' prerogative of the governor, not the ment worldwide may have on sensitiz- clemency petition, a growing number of courts. This is far stronger and more ing public attitudes here at home. Vir- Californians appear to favor substitut- explicit than in most states. tually every European democracy has ing life without possibility of parole for Even ordinary life sentences, which abolished the death penalty except Po- the death sentence. can gain parole, are restrictive in Cali- land (which is currently debating the The latest Gallup Poll shows support fornia. No one serving life for first de- subject as it rewrites its former com- nationally for the death penalty drops gree murder can be paroled until after munist criminal law code). Even the from 76 percent to 53 percent if life serving 25 years in prison. Some 3,849 former Soviet republics and South Af- without parole — or LWOP — is of- prisoners are currently categorized as rica are now pondering abolition. In the fered as an alternative. In California, ordinary "lifers" and none has yet Americas, only Chile, the English- this view is strikingly stronger. While reached the point when parole could be speaking Caribbean and the U.S. retain 80 percent of those polled by the Field considered. capital punishment. Its greatest use is Institute said they favored the death Anti-death penalty advocates believe in Iran, Iraq and China. penalty, the proportion dropped to only the frenzy of appeals and last minute Such shifts in societies abroad are 26 percent when the option of "life in stays in the Harris case, on top of a 14- bound to affect public thinking in Cali- prison for keeps" was offered. year wait, may actually boost support fornia, opponents of the death penalty for the life without parole option in the While the Field Poll also found a large predict. Alice Miller, director of Am- state. It offers one obvious advantage in nesty International USA's program to proportion of the public had doubts that that the sentence takes effect promptly abolish capital punishment points to a life without parole really means what it upon a judge's order, rarely getting tan- growing number of civil rights, human says, California juries seem to believe it gled in appellate delays. It also gives the rights and women's rights organiza- works. Since 1978 three times as many victim's family the satisfaction of know- tions that have recently begun to focus persons found guilty of first degree ing that the offender's fate is sealed. on the death penalty issue. murder have been sentenced to life And the criminal drops into the ano- 'Vhile such groups are by no means without parole as have been ordered to nymity of prison life rather than becom- unanimous in advocating life without die. There are now 322 men and two ing what many in the public now regard possibility of parole as a substitute to women waiting on death row in Califor- as a mock-hero in dramatized final bat- capital punishment, they are helping tles to stave off death. create a climate of public opinion that, Mary Ellen Leary, a West Coast corre- Another factor favoring life without at least in California, is increasingly re- spondent for the Economist, wrote this parole is cost. Studies now show delays ceptive to a water-tight prison alterna- article for Pacific News Service for appeal and frequent court hearings tive to death. Ill San Francisco, CA Death (San Francisco Co.) Examiner (Cir. D. 158,711)

penalty APR 9 W92

support DEATH from A-l Nearly two out of three Califor- nians, for instance, said they would prefer a sentence of life without Support for death parole and financial restitution to penalty questioned the victim's survivors. In Florida, an open 70 percent prefer that alternative; years. in New York, 62 percent; Virginia, Bowers, principal research sci- 59 percent; and Nebraska, 58 per- entist in criminal justice at North- cent. eastern and author of two books on issue Bowers said the 26 percent of the death penalty, challenges the notion that the polls represent Califomians who stuck with the "continuing strong support" for death penalty (7 percent were un- When alternatives the death penalty, as pollster Mer- decided) did so because they be- vyn Field declared, or that they lieve life imprisonment is no guar- given, respondents reflect "deep-seated pro-death antee that convicted murderers will stay in prison. penalty attitudes." tend to shy away "To be sure, four out of five "If the public is right, then en- Califomians have not renounced forcing the sentences imposed by from executions, death as punishment," Bowers the courts would remove what may said. "But this support is hardly be the foremost source of support researcher says strong or deep-seated. To the con- for the death penalty among those trary, it is remarkably soft and who would stick with it, and what By Larry D. Hatfield is surely a source of ambivalence OF THE EXAMINER STAFF shaky." When specific alternatives to among those who are presently Four out of five Califomians say death are offered, Bowers said in a ready to accept this alternative," they "favor" the death penalty, but telephone interview, the number of Bowers said. most of that support appears to those supporting executions "goes Tip Kendall, spokesman for the evaporate if citizens are offered an well below 50 percent." state Department of Corrections, alternative to execution. The same is true in other states, says Northeastern University's William J. Bowers, where support said the department does not keep for the death penalty drops dra- statistics on how many inmates matically when an alternative such who receive such sentences are as life without parole is offered, subsequently released on appeal. and even more when the alterna- According to Phyllis Scott, tive is life without parole and resti- spokeswoman for the state Board tution to the victim's family. of Prison Terms, there currently Bowers blames "the recent po- are 977 inmates in California pris- ons serving life terms without pos- litical stampede on execution" on pollsters failing to ask the right sibility of parole. questions and pollsters, the media Bowers believes that polls over and legislatures misreading the the last several years indicate clear- meaning of answers to the ques- ly that the people want an alterna- tions that are asked. tive to capital punishment. "But pollsters are telling their A California Poll released last would-be leaders that death penal- week showed 80 percent of those ty support is strong and deep-seat- surveyed support the death penalty ed," he said. while 14 percent oppose it. The "Califomians do want brutal results closely parallel a poll of Cal- murders punished harshly (84 per- ifornians two years ago by the Field cent), and they do worry1 about lif- Institute, which was taken just be- ers getting out of prison at some fore the scheduled execution of point (64 percent). But they are murderer Robert Alton Harris. looking for a better way than the Two years and a series of unsuc- offender's execution to compensate cessful court battles later, Harris is the loss to the victim's family and again scheduled to die on April 21, to collect the offender's debt to the first execution in the state in 25 society." [SeeDEATH, A-16] In 1971, the U.S. Supreme Court invalidated all existing death penalty statutes THE because the Court determined they were arbitrarily applied. Six years later the Court allowed for its re-introduction if states engaged in a rigorous "Super Due Process" to ~ CRUELEST assure that there would be no arbitrary assignment of the death penalty. Despite the „ LOTTERY supposed heightened scrutiny, the death sentence remains a roll of the dice. If shuffled together, no one could determine which of any 100 murder defendants received death or life sentences, noted one Georgia Pardons Board official. Extraneous variables such as venue, political posturing, economics, race and quality of legal counsel determine the outcome. U.S. Supreme Court Justice Byron White, in voting to overturn all death sentences in 1972, said: "...there is no meaningful basis for distinguishing the few cases in which (the death penalty) is imposed from the many In which it is not." Of every 100 people arrested for murder in this county, just one is executed. In California, where a small percentage of murder cases include the possibility of the death penalty, just 10 out of every 100 capital cases end with a death judgment. "It would be one thing to say that ten murderers deserve to be executed for their crimes," says David Bruck of the South Carolina Office of Appellate Defenders. "But it is quite another thing to say that of those ten we will choose three at random, allow one to live because he is white and another because his victim was black, and then execute only the one who remains. In essence, that is what the death penalty does today." Some mass murderers and serial killers are sent to Death Row. But the vast majority are there for other reasons: their victims are white (particularly if the defendant is black); the judges and juries that condemn them are white; they must deal with a prosecutor's political posturing; they are severely mentally handicapped; or they are defended by grossly inadequate counsel. Approximately20,OOOpeoplecommitmurderintheU.S. everyyear. The approximately 200 persons sentenced to death are not necessarily the most dangerous criminals. Ninety percent of those on Death Row had no involvement in a prior killing, and many are first-time criminal offenders. i Accomplices Get Death While Triggerman Gets Life Death Row also includes many people who never intended, or anticipated, killing someone in the course of a or other offense. Their accomplices in the crime did the actual killing. For example, in August 1987, Beauford White was executed in Florida although he did nut kill or intend to use lethal force. He objected to any killing before his accomplices started shooting. In July of 1992, Willy Andrews was executed for a murder he did not commit. He was in another room at the time of the shooting. The arbitrariness of the death penalty system has led to case after case where the triggerman was sentenced to hie imprisonment.while the accomplice was sentenced to die. The actual killer often plea bargains his case.in exchange for a life sentence and testifying against his co- defendant.

Death Penalty Focus of California 510-452-9505 T THE SENTRY, Winter 1992 The Death Penalty: A Lethal Lottery By Merrilee Morrow A young, black man is accused of after attempting a reconciliation. He young marines to kill her husband, murdering two prominent, elderly white knew the law, what the consequences intending to pay them with insurance citizens in a rural county with few were for murder, and killed anyway. The proceeds. Three marines pled guilty to minorities. He faces the death penalty 45-year-old white male was eligible for first degree murder and were sentenced after an overzealous district attorney, up the death penalty since he was charged to 25 years to life. One marine stood trial for re-election, charges him with every with lying in wait for his victim. But he that resulted in a hung jury. The wife and possible infraction of the penal code. evaded the and was the final marine were convicted of A middle aged white man is accused of sentenced to 27 years to life. murder including special circumstances murdering two prostitutes in another Despite his education, place in society and sentenced to life without possibility of county with a floundering economy, and his ability to hire his own attorney parole. forcing massive cuts in governmental rather than relying on a public defender, If the jury couldn't stomach the service. The defendant does not face the the defendant still had trouble getting an thought of putting a woman to death death penalty because the county can no adequate defense. He fired his attorney (there are just two females on death row) longer afford to prosecute capital cases during the sanity phase of the trial and or a young marine - individuals to whom The Legal Tracking Project of Death filed a motion for a new trial based on they might relate — questions emerge Penalty Focus is attempting to piece ineffective counsel after they clashed over when the scenario differs slightly. Would together this crazy quilt of random factors the psychiatric defense. the outcome change if a black woman that can literally mean life or death for hired someone to kill her white husband capita] defendants. or if the husband paid someone to murder Why is it that for every 100 cases in Race of J White his wife? California where the district attorney Death Row * Sometimes the values society places seeks the death penalty, 10 receive a death Ek Black on the murder victim can affect sentences, judgement? Inmates in B Mexican American even if the crime is particularly gruesome. The answer often depends on who the California In two Los Angeles County cases defendant is -- his race, sex, background D Other involving victims who were gay men, and ability to secure good legal both defendants avoided the gas chamber. representation. It can also depend on the One defendant shot a male prostitute victim's race, age and prominence in the and dismembered the body with a chain community. The biases and attitudes of saw. The death penalty special judges, prosecutors and juries also figure circumstance charges included murder in the mix. during a robbery and one specifically The goals of the Legal Tracking aimed at heinous crimes. The defendant, Project include gathering statistical a 58-year-old white male with a PhD., was information that illustrate these kinds of found guilty of first degree murder and biases and providing research and sentenced to 25 years to life. The heinous experienced'litigators as consultants to charge was dropped prior to trial and the assist attorneys in presenting the best robbery allegation was dismissed. possible defense. The chances that a defendant gets The second case involved a defendant The project gathers information on the death penalty often hinge on who the who befriended the victim and let him live every murder case filed since 1987 that prosecutor wants to pursue and who is in his home for "considerations." He include "special circumstances" — charges offered a plea bargain. In a Los Angeles stabbed the victim 30 times and took his which make the defendant eligible for the County case, the victim's wife hired two car and credit cards. The defendant pled death penalty or life without the police officers to kill her husband for to second degree murder and was possibility of parole. The most common of $20,000. Again, two officers who knew sentenced to 15 years to life. these include murder in the course of a the law were not deterred by the death The ability of a jury to relate to the robbery or burglary and multiple murder. penalty. The prosecutor decided to go victim, regardless of that person's race, Working with the State Public after the two errant policemen. The wife age, social status or sexual preference, can Defender office in Sacramento and the turned state's evidence and did not face affect the outcome and influence California Appellate Project, the cases are the possibility of the death penalty even prosecutors. The district attorney may tracked through questionnaires sent to though she hired the killers. The two opt for a plea bargain if he thinks he can't defense attorneys, news clippings and officers were sentenced to life without get a death sentence from a jury reviews of court records. possibility of parole. •unsympathetic to a gay victim. Although much work needs to be done, * If a wife kills her husband herself, The Tracking Project will continue to individual case studies chip away at she usually isn't eligible for the death monitor capital cases to determine how myths that the death penalty is a deterrent penalty. But, if she hires someone else to pervasive the bias is through more in reserved for the most heinous crimes: do the killing because she just can't pull depth research. the trigger, the gas chamber can be the Merrilee Morrow is the Legal Tracking * A longtime criminal justice professor Project Coordinator of Death Penalty with six years experience as a police result. Focus. officer was convicted of killing his ex-wife In County a wife hired five Racism: The evidence Is clear: justice Isn't color-blind when It comes to the death penalty. ^People Blacks who commit murder are far more likely to be put to death than whites . The Government Accounting Office reviewed all the recent studies on this subject and Of Color concluded: "Our synthesis of the 28 studies shows a pattern of evidence Indicating racial disparities in the charging, sentencing, and imposition of the death penalty after Are More the (1976) Furman decision," which reinstated capital punishment In this country. "Likely Studies reveal: • Only one white person has been executed for killing a black In the past 50 Executed years. Of the 16,000 recorded executions in U.S. history, only 31 involved a Than Whites white killing a black. • More than 85 percent of those executed in this country since 1976 had killed whites (153 of 179), while almost half of all homicide victims were black. • In a 1983 study of Georgia sentencing, capital defendants who kill white victims are 11 times more likely to receive the death sentence than are those who kill black victims. Among those indicted for killing whites, black " defendants receive death sentences three times as often as white defendants. • A 1973 study of 1,265 cases from Florida, Georgia, Louisiana, South Carolina and Tennessee demonstrated nearly seven times as many blacks were sentenced to death as were whites. Of 882 blacks convicted of rape, 110 were sentenced to death. Among the 442 whites convicted of the same crime, only 9 received a death sentence. • In Florida, between 1972 and 1977, black offenderswho killed whites werefour times more likely to be sentenced to death than those who murdered blacks. Blacks who killed whites were five times more likely to receive the death penalty than whites who killed whites. • In South Carolina, over a four-year period, prosecutors In murder trials involving white victims and black killers sought the death sentence in 38 percent of the cases. When the killer was white and the victim was black, the figure dropped to 13 percent. • A study of sentencing patterns in Texas In the 1970s showed that, where a Chicano killed a white, 65 percent of the defendants were tried for murder while only 25 percent of whites who killed black or Chlcanos faced the death penalty. Resources Baldus, David, George Woodworth, and Charles Pulaskl. Equal Justice and the Heath Penalty: A Legal and Empirical Analysis. Boston: Northeastern University Press, 1990. Bowers, William. "The Pervasiveness of Arbitrariness and Discrimination under Post-Furman Capital Statutes." Journal of Criminal Law and Criminology. Vol. 74. No. 3 (Fall 1983) 1067- 1100. Ekland-Olson, Sheldon. "Structured Discretion, Racial Bias and the Death Penalty: The First Decade After Furman in Texas." Social Science Quarterly. Vol. 69 (December 1988) 853-873. Gross, Samuel and Robert Mauro. "Patterns of Death: An Analysis of Racial Disparities In Capital Sentencing and Homicide Victimization." Stanford Law Review. Vol. 37 (1984) 27-153. Nakell, Barry and Kenneth Hardy. The Arbitrariness of the Death Penalty. Philadelphia: Temple University Press, 1987.

Death Penalty Focus of California 510-452-9505 ¥ Law

Race and the Death Penalty A high-court move to halt repeated appeals stirs concern about an arbitrary process

ByJILLSMOLOWE used a jailhouse informer to obtain a con- the criminal-justice system that are going fession from him; this time the court was awry," says Randall Kennedy, a professor he death penalty symbolizes even sterner in its rejection. In a 6-to-3 rul- at Harvard Law School. "W'ho's going to whom we fear and don't fear, ing, the majority said such repeated peti- shine a light on the way the system works "T whom we care about and tions as McCleskey's "threatened" to un- other than the people enmeshed in it?" whose lives are not valid," says Bryan Ste- dermine the integrity of the habeas corpus Gerald Chaleff, one of Southern Califor- venson, the director of Alabama's Capital process." Then the court set tough new nia's top criminal-defense attorneys, Representation Resource Center. Fair standards that severely curtail a state pris- warns, "You judge a society by how it im- enough. Just whom do Americans fear— oner's ability to bring claims of violations. poses its harshest penalty, and in the U.S. and whom do they care we are now in a rush to see about? The answers to that it happens quickly these questions of life and rather than that it happens death lie in a set of dry but fairly." startling statistics: In many of the 36 states ••Of the 144 executions that have capital-punish- since the 1976 reinstate- ment statutes, the decision ment of the death penalty concerning who shall live in the U.S., not one white and who shall die often has person has been executed disturbingly little to do with for the killing of a black. the heinousness of the Mn those 144 killings, 86% crime. More pertinent fac- of the victims were white, tors commonly involve the although roughly half of all race of the victim and the murder victims in the U.S. competence of the defen- are black. dant's counsel. Many legal >-Of the 16,000 executions experts believe the race of in .U.S. history, only 30 the defendant also plays a cases involved a white sen- role—12% of the U.S. pop- tenced for killing a black. ulation is black, though Yet when Warren blacks constitute 50% of McCleskey. a black death- death-row inmates —but row inmate in Georgia, pe- the evidence is equivocal. titioned the Supreme Court "The trouble with the death in 1987, arguing that his penalty is that it's like a lot- capital sentence should be tery," says law professor overturned because the Steven Goldstein of Florida race of his white victim State University. "There played a significant role in are so many discretionary his sentencing, his claim stages: whether the prose- was rejected. Presented cutor decides to seek the with data demonstrating death penalty, whether the that murderers of whites jury recommends it. wheth- are four times as likely to er a judge gives it." receive the death penalty as Nowhere is that point il- murderers of blacks, the lustrated more starkly than court allowed that the link in Columbus, Ga. Since between a victim's race and Georgia adopted its current the imposition of the death death-penalty law in 1973, penalty was "statistically four white men in the Co- significant in the system as A stark symbol of whom Americans fear—and whom they care about lumbus district attorney's a whole." But, the court office have decided which concluded, no petitioner could rely exclu- of his constitutional rights before a federal murders will be prosecuted as capital sively on such statistics to show that "he re- court. crimes. To date, 78% of their cases have in- ceived the death sentence because, and Legal experts who believe the death volved white victims, although blacks are only because, his victim was white." penalty in the U.S. is applied in an unjust the victims in 65% of the community's ho- Last week McCleskey again petitioned and arbitrary fashion are further alarmed micides. Among the other factors that may the Supreme Court. This time he sought to by this latest ruling. "When you cut back create greater sympathy for a white victim have his conviction reviewed on the on procedural grounds, you're talking or defendant: all four judges in the state ground that his constitutional right to about preventing discussion of disputes superior court, which tries capital cases, counsel had been violated when the police that may shine a light on various areas of are white, and often the juries are all white,

68 TIME, APRIL29,1991 although blacks account for 35% | Protesting capital punishment in of the Columbus population. Austin: many legal experts Given the odds stacked contend that death sentences against black defendants who are doled out in an unjust and kill whites, the results are per- discriminatory fashion haps predictable. Last February two men were convicted of mur- the day of arraignment. More der in separate trials in Colum- than half the lawyers are han- 'bus. James Robert Caldwell, a dling a capital case for the first white defendant, was found time. Some have drinking prob- guilty of raping and murdering lems; others have decided bias- his 12-year-old daughter and re- es. One Louisiana defendant peatedly stabbing his 10-year- learned that his lawyer was living old son. His sentence: life im- with the prosecutor. A Florida prisonment. Jerry Walker, a man discovered that his public black, was convicted of murder- defender was a deputy sheriff. In ing the 22-year-old son of a Georgia, Eddie Lee Ross was white Army commander at near- defended by a white attorney by Fort Benning during a conve- who referred to Ross as a "nig- nience-store robbery. His sen- ger" and had been the Imperial tence: death. Caldwell's trial Wizard of the local Ku Klux lasted five weeks. Walker's last- Klan for 50 years. Ross now ed 12 days. His jury deliberated awaits the electric chair. for 97 minutes. Says Stephen Even court-appointed law- Bright of the Atlanta-based yers with good intentions are Southern Prisoners' Defense hampered by stingy allowances. Committee: "The death penalty Many work in states where there was imposed not for the crime in is a cap on both fees and legal Walker's case but because of the expenses. Arkansas imposes a race and prominence of the vic- S100 limit on expenses and a tim's family." 51,000 maximum on lawyer's Columbus is not alone in its fees. California, by contrast, skewed application of justice. A routinely approves two lawyers 1990 report prepared by the gov- for capital cases, pays them each ernment's General Accounting an average of S75 an hour, and Office found "a pattern of evi- covers expert services, such as dence indicating racial disparities in the ly. The result, says Bright, is that "people private investigators, which typically add charging, sentencing and imposition of the aren't sentenced for committing the worst 55,000 a month more to the defense tab. death penalty." A midterm assessment of crimes; they're sentenced for having the The state bill in an uncomplicated case the Bush Administration's civil rights track worst lawyers." comes to about 525,000, whereas in Arkan- record issued last week by the independent Often the lawyers tossed into capital sas, says Stevenson of the Resource Cen- Citizens Commission on Civil Rights cases are either the most inexperienced, ter, "we're asking lawyers to work for SI an found a similar "pattern of inequity" in the most jaded or the most unethical. A hour." Next month two Arkansas attorneys death sentencing. Richard Burr of the 1990 investigation conducted by the Na- will challenge the cap before the state su- NAACP Legal Defense and Educational tional Law Journal found that lawyers who preme court. Fund's capital-punishment project puts it represented death-row inmates in six This week the U.S. Supreme Court will more bluntly, "Prosecutors frequently pay Southern states had been disciplined, sus- hear arguments in the case of Payne v. Ten- no attention to the families of black homi- pended or disbarred at a rate of up to 46 nessee about the value of "victim-impact cide victims. They don't even stay in touch times that of other attorneys in those evidence." On two prior occasions, the with them." Later this year Congress will states. In Louisiana, the state with the high court ruled that at the time of sen- consider a measure that aims to enable de- highest rate of disciplinary action against tencing in capital cases, it is improper to in- fendants to quash death-penalty sentences death-row trial lawyers, the average troduce testimony dealing with the impact if they can provide evidence demonstrating length of a capital trial is just three days, of a crime on a victim's family. The Bush a racial bias in sentencing patterns. and the average penalty phase lasts just Administration is sending no less a figure While Congress deliberates, defen- 2.9 hours. than Attorney General Dick Thornburgh dants in capital cases must make the best of Small wonder, given how ill-prepared to the court to argue for Tennessee's posi- often terrible circumstances. According to many of the ri ense lawyers are when they tion allowing such impact evidence. After the Washington-based Death Penalty' In- enter the co,;rroom. Some of these attor- last week's ruling in the McCieskey case, formation Center, more than 90% of the neys meet their clients for the first time on many legal experts are concerned that the 2.400 men and women currently Justices this time will side with on death row were financially Tennessee. "The court is quite unable to hire an attorney to systematically knocking out reg- represent them at trial. A few ulations, streamlining the road states, most notably California, to the electric chair," says Har- take pains to ensure that defen- vard's Kennedy. In the rush to dants receive competent coun- make the process more efficient, sel. But in many states, particu- the rights of criminal defendants larly in the South, there are no are getting battered. —Reported safeguards. Because most states by Jonathan Beaty/Los Angeles, Cathy lack a public-defender system, Booth/Miami and Julie Johnson/ courts appoint lawyers arbitrari- Washington TIME, APRIL 29.1991 69 Despite permanent limitations on their ability to learn and reason, hundreds of MENTAL mentally retarded inmates sit on Death Row. The mentally retarded, due to their immature notions of cause and blame, often accept responsibility for acts in which they RETARDATION, had little involvement. They are more susceptible both to coercion and a desire to please, MENTAL making them considerably more likely to confess to crimes they didn't commit. ILLNESS The case of Jerome Bowden, a young black man charged with murder in Georgia, is typical. Bowden had been consistently diagnosed over many years as severely retarded. AND All the physical evidence implicated a co-defendant who agreed to testify against Bowden in exchange for a life sentence. With no physical evidence, fingerprints or THE eyewitnesses implicating Bowden, the entire case was based on his own confession and the plea-bargained testimony of his co-defendant. Bowden later explained that the DEATH detective who had interrogated him said he was a "friend" who would help Bowden. The PENALTY detective asked him to "sign here" and Bowden did. The court determined that Bowden was competent to waive his constitutional right against self-incrimination and that his confession—which he could not write — was voluntary and reliable. He was executed in 1986. Many mentally retarded defendants condemned to death do not function at Bowden's limited level. According to Stephen Bright, director of the Southern Prisoners' Defense Committee in Atlanta, many capital defendants "cannot perform such basic functions as making change. One of our clients who was sentenced to death had an IQ of 49. He could not tell you whether he's American or Chinese." The American Bar Association in February 1989 adopted a resolution that the mentally retarded should not be subject to execution; they argued that executing"a person with mental retardation violates contemporary standards of decency." At least seven people diagnosed as mentally retarded have been executed in the U.S. since 1984. In the general population, 2.5 percent are mentally retarded. On Death Row, the numbers range between 10- and 30 percent. Five states — Tennessee, Georgia, Maryland, Kentucky and New Mexico — now expressly prohibit the execution of the mentally retarded. In June 1989, the U.S. Supreme Court held the Constitution does not bar the execution of the mentally retarded.

Mental Illness Often Goes Undetected During Trial Alarming evidence of this neglected aspect in many capital cases emerged from a 1986 study of Death Row inmates. In the study, 15 inmates were selected for psychological examination because their executions were imminent — not because of evident psychopathology or mental illness. All 15 had histories of severe head injury, 12 had neurological problems (five had major neurological impairment), most had attempted suicide and six had forms of schizophrenia.

References

"Sentencing the Mentally Retarded to Death: An Eighth Amendment Analysis" John Blume and David Bruck, 1988 Arkansas Law Review, vol. 41:725-764. "Psychiatric, Neurological, and Psychoeducational Characteristics of 15 Death Row Inmates in the United States" Dorothy Otnow Lewis, et al. American Journal of Psychiatry. June, 1986.

Death Penalty Focus of California 510-452-9505 A-4 Sund.y, May 10, 1992 * * * SAN FRANCISCO EXAMINER

In 1989, the U.S. Supreme Should retarded convicts Court upheld the execution of mentally retarded defendants in the landmark case of Penry vs. Lynaugh, but left the door open for reconsideration if more states be executed for crimes? ban such executions. In Penry, 10 professional and voluntary associations interested examination, Sawyer was asked to in people with mental retardation 5 states ban their explain "reasonable doubt." He argued in a frlend-of the-court crushed a lighted cigarette, pointed brief against the execution of death-row status; to the smoke and said: "The smoke mentally retarded defendants. ain't reasonable out." 21 others are At least 250 mentally retarded The argument men sit on death row nationwide, I The disabilities that considering it according to the Southern Center accompany mental retardation for Human Rights in Atlanta. But are directly relevant to the issue By Karen MacPhertoh other experts dispute that number, of criminal responsibility and to and John Bennett saying no one knows for sure how the choice of punishment for SCfllPPS HOWARD N€WS SERVICE many of the 2,500 death row in- those convicted of crimes. Earl Washington Jr., 31, doesn't mates are developmentally disa- II The degree of reduction in know the colors of the American bled because a comprehensive moral blameworthiness caused flag. He can't define "evidence." study has never been done. by a defendant's mental Nor can he explain why he's Those pushing for a ban on exe- retardation renders imposition of sitting on Virginia's death row, cutions of the developmentally dis- the death penalty convicted of raping and stabbing to abled make clear they do not ques- unconstitutional. death a 19-year-old mother of tion the need to punish the men for III The execution of a person three. their crimes. with mental retardation serves He is one of what experts be- "Society needs to be protected. no valid penological purpose. lieve are hundreds of mentally re- Families and other victims need to IV A ruling that the Eighth tarded prisoners — men with the 1966 FLE PHOTO feel that justice has been done," Amendment to the Constitution, minds of children — sitting on Jerome Bowden's mental retarda- said John McGee, an associate pro- which prohibits the imposition of death rows across the nation. tion wasn 't revealed until after his fessor of psychiatry at Creighton cruel and unusual punishment, These are men who can't count execution in Georgia. University. "However, the death of bars the execution .of people with change. They can't tell the time of a person with mental retardation mental retardation is appropriate day or recite the alphabet. They row. In fact, much of life is a puzzle has no meaning other than sheer and necessary. have the social maturity of 7- to to Washington, who has an IQ of vengeance. It holds no significance SOURCE: Scrtppt HowBrd News Service 69; the average person has an IQ of to the person with mental retarda- 10-year-olds. EXAMINER GRAPHICS All have been convicted of some 100. tion." of the most heinous crimes imagin- A psychiatrist who was asked by Liht killing able. defense attorneys to evaluate down to, 'Do they know right from Adam Stein, a North Carolina wrong?'... There are a lot of men- Most grew up in poverty, and Washington said: "This man is defense attorney, argued that exe- many were subjected to often un- easily led.... It was my impression tally retarded people who do not cuting developmentally disabled commit crimes." speakable physical and mental that if, on the evening of his execu- defendants is akin to killing child- abuse as children of troubled par- tion, the electric chair were to fail ren. Virginia Smith, mother of the ents. to function, he would agree to as- "Like children, mentally retard- young woman murdered by Saw- sist in its repair." ed defendants don't have the abili- yer, symbolizes the anger of many Troubled by these facts, five victims' families when she scorns states have adopted bans on the ty to really appreciate what they execution of the developmentally IQofM are up to," Stein said. his claim to be mentally retarded. disabled. Similar legislation has Hundreds of miles away, Robert Not surprisingly, prosecutors "It isn't true, for one thing," been introduced in another 21 Wayne Sawyer lives in a 6-foot-by- disagree. Smith said. "He's not a genius, but states. (There is no such ban in 9-foot cell on Louisiana's death "If (a defendant) is found com- he knows how to take care of him- California, nor has legislation been row, sentenced to die for the brutal petent, has a rational understand- self." in : oduced.) 1979 murder and burning of a 23- ing of the proceedings and is found in many cases, advocates don't year-old woman. legally sane, then certainly he is question the guilt of the develop- Like Washington, Sawyer has eligible for the death penalty," said mentally disabled on death row. been diagnosed as developmentally Arthur Eads, a district attorney in 'But they do question a system of disabled, with an IQ of 68. Expert* Belton, Texas, who has been a na- justice that would execute men hired by his attorneys say Sawyer'g tional voice on the issue. who don't understand the basic le- retardation, coupled with serious "The people who commit those gal concepts upon which they were organic brain damage, have made types of crimes aren't normal any- convicted. it virtually impossible for him to way," Eads said. That's certainly the case for comprehend important legal con- Dorothy Pendergast, the prose- Washington, who has spent the cepts. cutor now involved in Robert Saw- last nine years on Virginia's death During a recent psychological yer's case, said "The issue comes Little attention to cases Until recent years, the courts paid little attention to develop- mentally disabled defendants. The. focus of the legal system was on those found to be mentally ill rath- er than mentally retarded. If a de- fendant — mentally retarded or not — knew right from wrong in a capital murder case, then the death sentence could be imposed. In a landmark 1989 decision, the U.S. Supreme Court upheld such executions, as long as a jury weighs the defendant's mental capacity as a mitigating factor against the crime. The court, however, said it might readdress the issue if more states prohibit the execution of the developmentally disabled. Georgia, . Kentucky, Maryland, New Mexico and Tennessee have such bans. Georgia's law was sparked by public outrage over the fact that the mental retardation of con- victed killer Jerome Bowden wasn't revealed until after his exe- cution. Bowden's IQ ranged from 59 to 65, according to the tests adminis- tered. His conviction for the stab- bing death of a 55-year-old woman during a burglary was based solely on a confession that Bowden's at- torney said Bowden had signed simply because the detective inter- rogating him indicated he would help Bowden. To proponents of similar bans, Morris Mason, a developmentally disabled man executed in Virginia in 1985 for the rape and murder of two elderly women, provides graphic evidence of the inability of many developmentally disabled people to understand even the fi- nality of their death sentences. Before his death, Mason asked a friend what he should wear to his funeral. Mason also asked the friend to carry a message to anoth- er inmate that, "When I get back to the row x^ QOC^a *r> p\y baseball. -PUBLIC Uespite political posturing and common perceptions, the public's desire for capital » SUPPORT punishment is far weaker than initial readings of opinion polls suggest. -FOR Most Americans accept the death penalty in principle when asked "do you favor or oppose the death penalty for convicted murderers." However, the results change • THE DEATH dramatically when people are given an option — a life sentence without possibility of parole plus financial restitution to the victim's family. The option, available in -PENALTY California, commands an absolute majority. -is A widely quoted poll conducted shortly before Robert Harris' execution in April 1992 "• DISTORTED indicated that 80 percent of Californians supported the death penally. A Northeastern University researcher challenged these findings with another survey . When specific alternatives to the death penalty are offered, support for the death penalty drops below 50 percent. Two out of three Californians said they preferred life in prison without parole plus restitution over the death penalty. The findings are consistent with those in other states: • In Florida, 70 percent said they preferred a sentence of life without parole and financial restitution to the victim's family. • In New York, life plus restitution was preferred by 62 percent. • In Virginia, 59 percent preferred a sentence of 25 years before parole, plus financial restitution; In Nebraska, 58 percent preferred this arrangement. • Even where restitution is not part of the life without parole option, a plurality of those polled in Kentucky and Oklahoma still prefer it over the death penalty. Other evidence that public support for the death penalty is waning includes: • In Texas, the state with the most executions in the modem era, during the last gubernatorial elections the two most strident pro-death penalty candidates both lost. • In Louisiana, where eight people were executed in as many weeks in 1987, the number of jury verdicts for death remained nearly zero for a long period following this wave of executions. • In March 1991, New Mexico became the fifth state—after Georgia, Maryland, Kentucky and Tennessee — to prohibit the execution of the mentally retarded, a significant population on any Death Row. • In September 1990, the two New York assemblymen who had most recently converted to a pro-death penalty position were defeated in the primary election by anti-death penalty candidates, prompting this headline in the Albany Times Union newspaper: "Support for Death Penalty Fatal for Assemblymen." Because most Americans incorrectly assume that killers will be out on the streets again in a few years, apparent support for the death penalty is exaggerated. However, in 31 states — most recently Oregon, Florida, Maryland and Oklahoma — have adopted a life prison term with no chance of parole for certain offenses. According to the California governor's office, not a single prisoner sentenced to life without parole has walked out of prison since the state provided for that option in 1977. (Sections reprinted with permission of the Death Penalty Information Center)

Death Penalty Focus of California 510-452-9505 Death Penalty Opposition Seen as Impolitic in '92 Strong Public Backing Frustrates Liberal Foes

By Thomas B. Edsall of the 1960s, a plurality of voters WnH HUM tv* Sue Wite opposed the death penalty. Since then, with rising crime rates and Support for the death penalty has growing distrust of liberal policies become so strong that liberal adver- on crime, public opinion has moved saries increasingly believe elective decisively in favor of imposing the politics is an almost hopeless ave- ultimate sanction on murderers. nue in their drive to end capital In terms of public opinion, the punishment. death penalty has become a virtu- "My analysis of this is that, with ally one-sided issue. There is a the possible exception of [New York dear consensus that the death pen- Gov.j Mario Cuomo, there is no alty is a legitimate punishment for way the Democrat* can nominate the most lerloui crimes," Demo- somebody agalnit the death penalty cratic pollster Geoffrey Girin Mid. and make It and be viable.* uld Ste- According to Gillup surveyi, a phen Bright, director of the South- strong majority supported the death em Center for Human Rights in penalty through the 1950s to the Atlanta. Cuomo is one of the few start of the 1960s. By 1965, how- prominent Democrats to oppose the ever, the public was effectively death penalty. split, 45 percent in favor and 43 Interviewed after yesterday's percent opposed. And in one year, execution of Robert Alton Harris, 1966, opposition reached 47 per- Bright, who has devoted 10 years to cent and support fell to 42 percent. an increasingly futile effort to pre- Public opinion then moved vent use of the death penalty, steadily to the right on the issue. By voiced deep frustration with liber- 1969, 51 percent supported the als' inability to convince politicians death penalty and 40 percent op- or voters to support spending on posed it, and by 1981, when Pres- education, jobs and gun control in- ident Reagan first took office, the stead of "spending millions of dol- margin of support was 66 to 25— lars so we can engage in ritualistic better than 2 to 1. When Bush ran executions." in 1988, the margin had moved to "Unfortunately," said Vivian an overwhelming 79 to 16. Berger, vice dean of Columbia Law The Supreme Court in 1972 School and counsel on capital pun- barred the use of the death penalty, ishment to the American Civil Lib- but then reinstated it four years erties Union, "it is impossible to get later. There are now more than to the right of perceived public 2,500 people, almost all of them opinion on the death penalty..., men, on death rows in states across The ordinary day-to-day dialogue the country. [in politics] is death, death and The South, which has been a cru- more death." cial force in the emergence of a Both President Bush and Arkan- conservative presidential coalition, sas Gov. Bill Clinton, the likely op- has been the driving force in the ponents in the presidential election, revival of the death penalty. Texas favor the death penalty. Clinton, leads the nation in executions with who earlier this year oversaw the 46, followed by Florida with 27, Arkansas execution of Ricky Ray Louisiana, 20; Georgia 15; and Vir- Rector, a convicted murderer, yes- ginia with 13. terday reiterated his support for Garin argued that one of the ma- capital punishment under "appro- jor changes in recent years in the priate circumstance*." politics of the death penalty is that Democratic opponents of Clinton, "it no longer is the kind of litmus- including Sen. Tom Harkin CD- test issue on the left that it once Iowa) and former California govern- was," a development reflected in or Edmund G. "Jerry" Brown Jr., part in Clinton's success in Dem- sought to use the issue to win lib- ocratic primaries. One of the reasons for this shift, eral support in primary elections, he said, is that "black voters have with only modest success. become much more supportive of The prospect of a presidential the death penalty over the years so election in which the candidates that support for the death penalty is agree on the death penalty stands in much less of a racially charged is- direct contrast to the 1988 contest sue." when Bush repeatedly capitalized Garin would not go as far as on his support of executions, while Bright in describing opposition to Democrat Michael S. Dukakis ap- the death penalty as an almost guar- peared to pay a significant price for anteed signal of probable defeat. his opposition to the sanction. But, he said, "If someone opposes In Congress, the debate I* now the death penalty, he or she has to much less over the death penalty go out of their way to prove that than over the legal protection! and they are going to be tough." appeals available to those facing execution. Polling analyst Sharon Warden For a brief moment in the middle contributed to this report. THE Opponents of the death penalty have been accused of not having sympathy for the •victims of crime, even though many of the most outspoken abolitionists are crime VICTIMS victims. Most abolitionist groups favor comprehensive support services for victim's families — especially financial support when an income earner has been killed. But these groups oppose any further manipulation of the sorrow we all feel toward victim's families to justify executions. Instead, abolitionists encourage real assistance to victim's families, more effort to address the underlying roots of criminal activity and proven policies that protect us all from violent crime. The cause of criminal behavior has been at the center of the debate between liberals and conservatives for the last 40 years. Liberals stress the social causes of crime while conservatives point to individual moral failure as the main factor. During the 1950s and 1960s, liberals developed ideas to address the origins of criminal behavior poverty, alienation, lack of education and racial discrimination. Despite considerable power of the state, legal scholars built protections for the constitutional rights of the accused. These reformers found an ally in the U.S. Supreme Court, especially under Chief Justice Earl Warren. The Miranda ruling, which ensured people arrested by police were read their rights, is an example of the liberal Warren court's strict scrutiny of criminal procedure based on the Bill of Rights. In the late 1960s and 1970s, however, a rising chorus of conservative voices assailed the position of the high court. E. Van Allen wrote in 1968, "What good are our police... if a court like the U.S. Supreme Court continues to put what is tantamount to a premium on lawlessness while it in effect penalizes the victim.... We have seen what the criminal- protecting U.S. Supreme Court decisions have done to the cause of justice. They have made the criminal's rights superior to those of the victim." Conservatives saw an opportunity to challenge the Court's protection of the accused by championing the rights of the victim. The "'discovery* of the crime victim" gave conservatives a powerful tool to reshape criminal procedures "thus making it appear the balance was more 'equal.'" During the course of the 1980s, conservatives prevailed through groups representing crime victims and from legal theorists who favored a more conservative approach to the Judicial system.

Resources

"The Wrongs of Victim's Rights," 37 Stanford Law Review, citing Kelman, "Criminal Law: The Origins of Crime and Violence," The Politics of Law 214, 220 (D. Kairys ed. 1982). 943-945. Magee, Doug. What Murder Leaves Behind: The Victim's Family. (Dodd, Mead and Co: New York, NY, 1983).

Death Penalty Focus of California 510-452-9505 Law

What Say Should Victims Have? A boy's anguish at watching the murder of his sister may change the death-penalty laws

By WALTER SHAPIRO f, as the Declaration of Independence so I eloquently declares, "all men are creat- ed equal," then can society place an un- equal weight on the tragically lost lives of murder victims? This is not an exam question in a col- lege philosophy course hut a moral conun- drum at the core of perhaps the most in- tricuing case facing the U.S. Supreme Court. Payne v. Tennessee. Justice David question; in 1988 he was convicted by a tem," argues Richard Samp, a lawyer with I Souter. the court's swing vote, asked dur- Tennessee court. the conservative Washington Legal Foun- I ing oral argument last month whether "it Instead, what is at issue before the Su- dation, which is representing the Zvolanek really is legitimate to value victims differ- preme Court is the legal validity of evi- family. This political symbolism has not ently depending upon the circumstances of dence the prosecution presented to the been lost on the Bush Administration; At- the lives that they have chosen to lead." jury before it decreed death rather than life torney General Dick Thornburgh made a Tennessee Attorney General Charles Bur- imprisonment for Payne. The most contro- rare appearance before the Supreme son's response was unequivocal: "There versial testimony was provided by the boy's Court to argue that a jury should be given can be no doubt that the taking of the life grandmother, Mary Zvolanek, who re- "the full picture of the nature and extent of of the President creates much more soci- counted in heartrending fashion how Nich- the harm that's been caused to the family." etal harm than the taking of the life of the olas cries out almost daily for his dead Critics of the government's position homeless person." sister. The prosecutor ended his final argu- raise provocative philosophical and practi- Just 25 years ago. such stark legal rea- ment to the jury with this emotive passage: cal objections to an additional legal en- soning was virtually unknown in modern "Somewhere down the road, Nicholas ... shrinement of victims' rights. "It will take American jurisprudence. Punishment was is going to know what happened to his baby a giant step away from presumptions meted out because of the nature of the sister and his mother. He is going to know of equality in the worth of lives." broods crime, devoid of any reference to the social what type of justice was done. With your Tufts University philosophy professor identity of the victim. But since then, com- verdict, you will provide the answer." Hugo Beduu. "The criminal-justice system | passion and political calculation have com- has traditionally been held to the myth of bined to transform crime victims and their ut should young Nicholas' anguish equal treatment of all who come before it." advocates into a potent lobbying force. B have a direct bearing on Payne's pun- With serious questions of racial and Beginning with California in 1978, 47 ishment? Will a Supreme Court decision up- class bias already swirling around capital states now allow some form of so-called vic- holding Payne's sentence create a climate punishment, there are concerns that a de- tim-impact statements to be included where the wails of a murder victim's relatives cision upholding Payne's death sentence among the evidence weighed during the will ordain vengeance in the form of capital will produce further inequities. Hypotheti- sentencing phase of criminal trials. Con- punishment? During the oral argument, cal!)', the grieving family of a murdered gress endorsed the principle in 1982 by ap- Chief Justice William Rehnquist probably bank president would be persuasive wit- proving victim-impact statements in federal reflected his own views when he asked nesses for the death penalty, while no one cases. But the Supreme Court, by a 5-to-4 Payne's attorney, "Are you suggesting that would speak for a slain prostitute. Diann vote in 1987. carved out a crucial exception: the jury's feeling of sympathy or perhaps Rust-Tierney of the A.C.L.U. is worried neither the life of the victim nor the suffer- outrage at the crime and what it's left the vic- that the Supreme Court will "sanction dif- ing of his survivors could be a factor in any tim with is not a permissible factor at all?" ferent punishment based on the worth of 1 state or federal case punishable by death. Like the debate over capital punish- the victim and aggravate an already pro- Now the court appears about to reverse it- ment itself, the Payne case is rife with em- nounced discrimination in the way that the self in its forthcoming decision in Payne. blematic importance, yet it is only tangen- death penalty is applied." The details of the case are grisly: in tially connected with the nation's alarming There is, sad to say, no way society can 1987 a three-year-old boy, Nicholas Chris- murder rate. Currently, the death penalty ever provide more than token recompense topher, watched as his mother and baby is decreed in only 3% of all murder convic- to the relatives of murder victims. That is sister were stabbed to death in Millington, tions, and only a small percentage of these why it is an illusion—born of compassion, Tenn., a Memphis suburb. The murders lead to actual executions. "The signifi- it is true—that justice can be found by add- were committed by Pervis Tyrone Payne, a cance of Payne is more societal in terms of ing their pain to the calculus of retribution 20-year-old retarded man, who also badly what it says about the proper role of the in the courtroom. —Reportedby wounded the boy. Payne's guilt is not in crime victim in the criminal-justice sys- Julie Johnson/Washington

TIME, MAY 27,1991 61 THE Too often the death penalty is punishment not for committing the worst crime but for being assigned the worst lawyer," said Georgia attorney Stephen DEATH Bright. More than 90 percent of those on Death Row were financially unable PENALTY: to hire an attorney to represent them at trial. As a result, poor defendants often were defended by young, inexperienced or incompetent counsel — lawyers POOR willing to accept the low fees provided by many states, particularly those in the MAN'S South. Evidence supporting this travesty of justice is conclusive. The Houston JUSTICE Chronicle reported that in Kentucky, one-quarter of the attorneys who represented the 26 convicts on death row last year had been either disbarred or suspended. In Georgia, serious questions about the quality of legal counsel were raised in a majority of the 14 cases of men executed there. • In a Louisiana case, the defense attorney for Freddie Kirkpatrick had not noticed until the trial was underway that the murder victim was an old friend. The attorney missed this obvious conflict of interest earlier because he failed to do the appropriate pre-trial preparation. Obligated to finish, the defense attorney told jurors they would be "justified" in sentencing the defendant to death. They did. Kirpatrick's co-defendant, represented by a different lawyer, received a life sentence for the same crime. • Judy Haney and her family were abused by her husband for 15 years. The jury, however, was unaware of this mitigating circumstance because her attorney did not bring the evidence to trial. He was ordered to spend the night in jail because he was drunk in court. The attorney was released from jail the following morning to return to court but had been unable to prepare for trial. Haney was sentenced to death. • A Georgia lawyer who represents many poor defendants facing the death penalty was unable to give ajudge the name of one death penalty case. He named only two, one of which, the Dred Scott decision, was not a criminal case. Precedents are the basis of practicing law yet this attorney was not judged to be incompetent. Given the U.S. Supreme Court's stance on refusing death penalty appeals to federal courts because of incompetent lawyers, adequate trial-level counsel becomes critical. The high court reached this decision even though federal judges have found constitutional errors in more than 40 percent of the death penalty cases that reached them through the habeas corpus petitions in the last 16 years. Paying for adequate counsel is particularly serious in California since the $20 million allocated for public defenders for capital cases was cut from the state budget in 1990. Currently, counties pick up the tab for these costly cases, but money is scare.

Resources

Coyle, Marcia, et al. "Fatal Defense: Trial and Error in the Nation's Death Belt," The National Law Journal. June 11. 1990. Lacayo, Richard. "You Don't Always Get Perry Mason," Time. June 1, 1992. Death Penalty Focus of California 510-452-9505 YOU DON'T ALWAYS GET As Coleman goes to the chair, questions remain about his case— PERRY MASON and the quality of legal defenders

ByRICHARDLACAYO

WITH TWO POWERFUL JOLTS OF ELECTRIO ity, Roger Keith Coleman was executed last week in Virginia. But the questions about his guilt could not so easily be dis- posed of—in part because his court- appointed lawyers failed to put them to rest at his trial. On the night that Wanda Fay McCoy was murdered, Coleman claimed to have been at several points around the coal-mining town of Grundy. Shouldn't his lawyers have tried to retrace his steps on that night and search out wit- William Andrews nesses? Shouldn't they have ventured into Judy Haney NEXT TUESDAY MARKS THE McCoy's or Coleman's home? At the very NOW ON DEATH ROW IN ALABAMA latest hearing in a long appeals least, shouldn't they have presented to the and appealing her 1988 sentence, process for William Andrews, jury the bag of bloody sheets and two cow- Judy Haney admits paying her who has spent more than 17 boy shirts McCoy's neighbor found a few brother-in-law to kill her husband years on death row. In 1974 days after the murder? in 1984. Her motive, she says, was Andrews and Dale Selby held up Over six years ago, Jesus Romero was more than 15 years of physical an electronics store in Ogden, sentenced to death for taking part in the abuse. Haney s appeals attorney Utah, and kept five hostages in 1984 gang rape and murder of a 15-year- claims that her court-appointed the building's basement. The old in San Benito, Texas. He might have lawyers at the trial failed to obtain bystanders were tied up and been sent to a mental hospital instead if hospital records of treatment for forced to drink liquid drain his court-appointed attorney had present- injuries that she says were inflict- cleaner during a brutal torture ed available evidence to the jury that sup- ed by her husband. "If the jury session. Although Andrews left ported an insanity defense. "His lawyer had appreciated the role of the the room before Selby raped one had no idea there was information avail- abuse Haney and her children had woman and shot all the hostages, able that Romero was completely insane at suffered, it would have been a killing three of them, both men the tune of the crime," contends Nick very strong mitigating factor," were convicted of murder. Trenticosta, who handled Romero's ap- says Haney's new attorney, Ste- (Selby was executed in 1987.) peals. During the course of his appeals, a phen Bright. A hospital worker The Tenth Circuit Court of lower federal court ruled that Romero had initially said such records could Appeals ruled last year that received ineffective counsel at his trial, not be found; one of the trial attor- Andrews received competent but a higher appeals court reversed that neys, Gould Blair, finally located representation, but his current ruling. Last week Romero died by injec- them-after the sentencing. Dur- attorneys say the inexperienced tion in Huntsville, Texas. ing the trial, Blair was held in con- public defender assigned to the Accused killers don't tend to be attrac- tempt and jailed for a night after case made a number of tactical tive people. Quite a few of them, perhaps the judge concluded he was in- errors. They criticize the the overwhelming majority, are guilty. toxicated in court. "This kind of lawyer—who had been But even the most dubious characters are trial has no place in the legal sys- practicing just two months supposed to get a fair trial, in which their tem," says Bright. But since the before the case came to trial—for attorneys are equipped to make the best jury members did not witness not conducting a defense wholly possible case on their behalf. Because the Blair's drunkenness and weren't independent from Selby's, and majority of murder defendants are also told of it, it could not have influ- say he failed to effectively cross- broke, however, many of them get court- enced their verdict. Blair says he examine witnesses for the appointed lawyers who lack the resources, deeply regrets the drinking inci- prosecution, which could have experience or inclination to do their ut- dent. He insists, however, that helped Andrews avoid most. When the Supreme Court restored Haney undermined her own de- execution. If the state court does capital punishment in 1976, it did so in the fense by taking the stand, against not find a reason to delay the expectation that death sentences would be his advice, and leaving the im- sentence once again, it will order imposed in a fair and equitable manner. It pression that she had master- that Andrews die by lethal hasn't always worked that way. Some peo- minded the crime. Says he: "She injection or firing squad within ple go to traffic court with better prepared was not underrepresented one 60 days. lawyers than many murder defendants damn bit."

38 TIME. JUNE 1.1992 Olnce 1900, 350 Innocent people have been sentenced to death, according to a study In the Stanford Law Journal. At least 23 were executed for crimes the did not commit. Since the 1970s, WE 34 innocent people have been released after many years on Death Row — often following the accidental discovery of evidence clearing them of capital offenses. EXECUTE For example, deliberate misconduct by Los Angeles law enforcement officials secured capital THE murder convictions for Clarence Chance and Benny Powell. Powell and Chance served 17 years In prison for a murder they did not commit. In 1972, all death row inmates — including Powell INNOCENT and Chance — had their death sentences commuted after the U.S. Supreme Court struck down capital punishment laws as "freakish" and arbitrarily applied. Capital punishment was reinstated in 1976 after the laws were rewritten. Had Chance and Powell been tried today, they probably would have received death sentences. Despite the safeguards these new laws are supposed to provide, defendants aren't protected from willful miscarriages of justice by an overzealous criminal justice system. Both Chance and Powell were released from prison in the spring of 1992. The Rev. Jim McCIoskey, an investigator from Princeton, N. J., specializes in uncovering evidence which proves the innocence of Death Row inmates. He helped free Chance and Powell. Recently he worked on the Howard Colemen case in Virginia.

Without any physical evidence, Colemen was condemned to death for the murder of his sister- in-law. A fellow inmate claimed that Colemen had confessed to the murder while they were in prison together. Colemen was electrocuted in May 1992. "The criminal justice system in the United States is a far leakier cistern where many people slip through a wider crack than the public would care to believe," said McCIoskey. A dramatic example of this death penalty travesty is the case of Randall Dale Adams. A movie about his case, "The Thin Blue Line," helped demonstrate his innocence. He was released after 12 years in prison. Other recent examples include: • Gary Nelson was convicted of raping and murdering a 6-year-old girl in 1978. After working for 11 years without pay. Nelson's lawyers secured his release In November 1991. The state's case rested on the knowing use of false testimony and the willful suppression of evidence pointing to Nelson's innocence.

• James Richardson was sentenced to die In Florida before the Furman U.S. Supreme Court decision invalidated capital punishment in 1972. He was released in 1989 after 21 years In prison. Volunteer legal counsel showed the prosecution had knowingly introduced false evidence and withheld information which would have resulted in an acquittal.

• Clarence Brandley was released in January 1990 after a decade on Death Row in Texas when two white prosecution witnesses admitted that a white man had committed the crime. Like Richardson, Brandley is black.

Discovery of these errorsoften Is cited as proof the system works. In truth, most of these problems were found accidentally and only through the persistence of volunteer investigators. Standard legal procedures designed to safeguard against such lethal errors failed. Today, even the meager protection for the innocent that time provides is in doubt. Congress is considering procedures that would speed up the appeals process — changes strongly endorsed by William Rehnquist, chief justice of the U. S. Supreme Court. (sections reprinted with permission of Death Penalty Information Center)

Resources "Miscarriages of Justice in Potentially Capital Cases" Hugo Adam Bedau and Michael L. Radelet, Stanford Law Review. Vol 40: 21-179,1987. "The Execution of the Innocent..." Robert Bryan, NYU Review of Law and Social Change. Vol 18, numbers, 1991.

Death Penalty Focus of California 510-452-9505 Coleman's lawyers, believing from the obligations of the at- OBERT ALTON Harris,-- the decision left open the right . torney-client privilege and executed the week be- to a hearing on a substantial ' should reveal Raul's statement. . fore last in San Quen-_ Will the clnim of actual innocence, filed a !The courts, however, were not ;tin, was not innocent, but Lloyd new federal petition on April 22. persuaded by the lawyer's hear- Miller and Randall Adams and But whether Coleman ever say recitation of his deceased others were. It is doubtful that gets his hearing may depend on client's statement. any of them would be alive to- two questionable assumptions: Then, last December, Raul day if the courts had applied the that his lawyers can obtain a Herrera's son, Raul Jr. came rules that Chief Justice Rehn- innocent be forward. Raul Jr. was 9 years . stay of execution or a commuta- quist is attempting to invoke in tion to keep him alive until the old in 1981. According to his . the handling of death-penalty Supreme Court decides a case statement, his father had taken cases in the future. r- involving Texas inmate Leonel him along on the trip the day of His determination to limit thi Herrera; and that the court will the murders, and he had wit- availability of habeas corpu;_ executed? hold in that case that the Con- nessed both killings. Raul Jr. and remove the federal courts" stitution requires consideration swears that his father killed from most death-penalty deci- What the Rehnquist court has wrought of a substantial claim of inno- both police officers, and that his sions is certain to have an enor- cence based on evidence uncov- uncle Leonel was not even in mous impact on the 2,594 pris"" . Continued from Forum 1 ered after the judgment of con- By John Tucker the car. oners on death rows across th ; process and leave the accused to viction becomes final. country, some of whom are al- the not-so-tender mercies of HE EVENTS leading to Leonel Herrera was convicted most certainly innocent. state court judges and gover- and sentenced to death for the HILE THE vast ma- the execution of Robert nors who may in turn be subject jority of Americans Alton Harris in San 1981 murder of two police offi- T to the pressures of an aroused cers, primarily on the basis of W now favor the death Quentin's gas chamber at dawn electorate that wants someone eyewitness identifications and penalty, presumably most of us on April 21 dramatically fo- j punished for the crime. would oppose executing an in- cused public attention on the fi- Federal review of state crimi- proof that the killer was driving nocent man for his brother's nal stages of Chief Justice Wil- nal cases occurs primarily un- a car owned by Hen-era. Three : crimes. And we probably would liam Rehnquist's long crusade der the federal habeas corpus • years later, in a privileged con- be shocked to leam that our le- to limit the power of federal statute, which empowers feder- versation with his lawyer, Leo- gal system provides no proce- courts over the execution of al courts to order a state to re- nel's brother Raul allegedly con- dure for considering evidence of prisoners sentenced to death by lease a citizen held in violation fessed that he, not Leonel, innocence once a conviction is fi- the states. I of due process and other consti- killed the policemen. nal, even if the result is to exe- While public attention was fo- ! tutional protections. The lawyer's subsequent affi- cute an innocent man. cused on the drama inside San i If a defendant can show that a davit presented this account: Quentin and the concurrent Raul stated that he had driven And yet that is the position coerced confession was used the state courts have taken in drama in Washington as the Su- against him, for example, a fed- his brother's car to South Padre preme Court dissolved lower Island for an appointment - in- both Texas and Virginia, and eral court can order the state ei- I the lower federal courts have court stays of execution as fast ther to retry him without the volving drug smuggling - that as they could be entered, a his brother was too ill to keep. , said the same thing in the Her- confession or release him out- rera case. broader and ultimately more right. Raul said the first policeman significant story was gathering Beginning in the early 1950s, killed was a participant in the Many legal observers expect force in less visible cases in Vir- the Supreme Court substantial- the Rehnquist court to affirm drug ring, and the killing result- , that view when it decides the ginia and Texas. ly broadened the availability of ed from a dispute between the habeas corpus to provide more Herrera case next fall, leaving two of them; the second officer Leonel Herrera and Roger Cole- O ONE seriously con- protection against unfair state was killed when he stopped tended that Harris was man - if he's still alive - with- court trials. But for the past two Raul for speeding as he fled the out any court to consider the N innocent of the murders decades, and with increasing scene of the first murder. (The substantial evidence that they for which he was convicted, and success, Rehnquist has cam- second officer signaled his iden- in the end the question was only paigned in opinions and are innocent. tification of Leonel as the killer In Illinois, Lloyd Eldon Miller speeches to limit federal court on his hospital deathbed, but when and how he would be exe- use of habeas corpus to review came within a day of execution cuted. But for Roger Coleman in other witnesses have testified numerous times during the 11 Btate criminal cases - especially the brothers look much alike.) Virginia and Leonel Hen-era in in death-penalty cases. years he spent on death row. Fi- Texas, for hundreds of other According to his lawyer's affi- nally a federal court ordered a davit, Raul said he and Leonel death-row inmates across the N RECENT weeks, consid- new trial when it was revealed country - and for thousands had always believed Leonel that a pair of "blood-stained" erable attention has been would ultimately be exonerated, more who will be sentenced to focused on Roger Coleman, . undershorts the prosecutor had death in years to cotne - the is- I since he was in fact miles away displayed to the jury were a Southside Virginia coal miner sues are quite different. Simply convicted of murder and sched- from the scene of the crime. Sev- stained with paint, as the prose- stated, they are these: uled to die on May 20. Cole- eral weeks after making his cutor knew from a laboratory « Whether the federal courts man's lawyers have developed confession, Raul himself was report he had concealed from will continue to play a signifi- not only examples of unfair gov- murdered during an argument the defense. cant role in protecting defen- ernment conduct at his trial, with another alleged member of Thereafter, it was shown that dants from the unfair trials and but also substantial evidence the ring - and the stage was set his confession was coerced and erroneous convictions that occur that he is innocent. for ultimate appeal to the Su- that the testimony of the only with surprising frequency in the But thus far Coleman has preme Court. witness against him was false, emotional and political crucible been unable to obtain a federal Leonel's appointed lawyers and Miller was released. created when someone is prose- hearing on his claims, because learned of Raul's confession and In the case that gave rise to cuted for a heinous murder. in 1986 one of his appointed in late 1990 succeeded in per- the widely praised documentary • Or whether the courts in- • lawyers mistakenly filed a pa- suading the lawyer who had film 'The Thin Blue Line," Ran- stead will withdraw from the per one day late. Last term the heard it - a former Texas state dall Adams was released by the Rehnquist court held that the judge - that in light of Raul's state of Texas in 1989 after 13 Pleas* ft* WHAT, Forum 6 lawyer's mistake required dis- death and the imminent execu- years in prison when there missal of Colcman's petition for tion of Leonel, he was released could no longer be any serious a writ of habeas corpus in feder- doubt that the murder for which al court he had been sentenced to die was in fact committed by his ac- \r> "Bee. cuser. Standing outside the gates of San Quentin Prison the night before Robert Harris' MYTH: execution, numerous protesters for and against the death penalty carried placards with THE BIBLE biblical passages supporting th eir respective views on the death penalty. Understanding the Judeo-Christian teachings on capital punishment, however, cannot be reduced to SUPPORTS media bites: It has a long history with a clear evolution that points against using death THE DEATH as a punishment. Many of the pro-death penalty passages come from the Torah, the first five books of the PENALTY bible. Yet those books have some confusing and conflicting teachings on the death penalty. For example, a passage in Exodus calls for "a life for a life, an eye for an eye and a tooth for a tooth." But the Torah also mandates execution for children who curse their parents (Exodus 21:17), adults who have sex during menstruation (Leviticus 21:18), and Sabbath breaking (Exodus 31:14 andNumbers 15:32-36). While the Torah Insists on the most severe punishment for minor offenses, it also tells the story of Cain, the first murderer, who God forgave for the premeditated and unprovoked murder of his brother Abel. A later period of Judaism is recorded in the Misnah (roughly 200 B.C. to about 200 A.D.). In this era. Death Penalty trials required 23 judges and two eye witnesses to the commission of the crime. The testimonies of near relatives, slaves, women and those with a bad reputation were not allowed in these trials. These carefully constructed rules prevented executions except in the rarest cases. In the books that follow the Torah, there are few references to the Death Penalty. By the time of the Misnah, capital punishment was discouraged. Israel has never had capital punishment — reflecting how today's Jewish state interprets pro-Death Penalty passages in the Torah. The American Jewish Congress says "capital punishment degrades and brutalizes the society which practices it; ... the death penalty is cruel, unjust, and incompatible with the dignity and self respect of men." Other churches opposing the death penalty include: the Catholic Church, the American Baptist Churches, American Ethical Union, American Friends Service Committee, The Episcopal Church, Friends United Meeting, The Lutheran Church, The Mennonite Church, The Moravian Church, National Board YWCA, the Presbyterian Church, United Methodist Church and many other religious organizations.

The teachings of Jesus in the New Testament are clear in their condemnation of capital punishment. Jesus said: "You have heard it said, 'an eye for an eye and a tooth for a tooth.' But I say to you do not set yourself in violent or revengeful resistance against an evildoer. But If any one strikes you on the right cheek, turn the other also" (Matthew 5:38). Mother Theresa, in her appeal to Governor Wilson to grant clemency to Robert Harris recalled Jesus' call for mercy — even to the apparently undeserving. Jesus said: "Inasmuch as you have done it to one of the least, you have done it unto me." Jesus was confronted by the death penalty directly in John 8. The Scribes and Pharisees made a woman stand before him to be judged. They said. Teacher, thk woman was caught in the very act of committing adultery. In the law, Moses commanded us to stone such women. Now what do you say?" They were plotting against Jesus, and "they said this is to test him, so that they might have some charge to bring against him." If he said flatly, "God's mercy forbids the death penalty," they could charge him with the blasphemy of disagreeing with Moses and stone him. Jesus answered, "Let anyone among you who is without sin throw the first stone." The woman lived.

Death Penalty Focus of California 510-452-9505 T While it is true that some passages in the Bible seem to support capital punishment, they all come from the earliest writings — writings that call for the execution of murderers and disobedient children. Judeo-Christian support for death sentences began to wane several hundred years before Christ. The theme of mercy, forgiveness and redemption that pervades the New Testament specifically denounces executions. Jesus himself was a wrongfully-convicted victim of capital punishment. From the cross Jesus said, "Father, forgive them, for they know not what they do." Byron Eshelman, the San Quentin Death Row chaplain during the 1950s and 1960s, uttered a similar prayer during each execution: "It would end up with words only a little different from those spoken on the cross. 'Oh God, have mercy upon this morning as we prepare to take the life of this man.... Father, forgive us, for we know not what we do.*"

Resources Yoder, John Howard. The Christian and Capital Punishment (Newton, KS: Faith and Life Press, 1961). Doss, Joe Morris. "The Death Penalty—Law and Morality" (Cincinnati: Forward Movement Publications, 1988). Zehr, Howard. "Death as a Penalty: A Moral, Practical and Theological Discussion" ~ (Ekhart, IN: MCC U.S. Office of Criminal Justice, Capital Punishment: What the Religious Community Says (New York: 475 Riverside Drive, Room 170QA, New York, NY 10027).

Death Penalty Focus of California 510-452-9505 APR 18 1992 JUlm'i '•*•••"• Punishment Paradox • Execution: Supporters and opponents of tbe_dejth poor, has joined the chorus. A virtual listing of "who's who" penalty cite biblical passages to justify their stands. in other mainline Christian and Jewish denominations have also finishing their half-eaten ham- By TAMMERLIN DRUMMOND issued statements condemning the TIMES STAFF WRITER burgers. Harris and his brother death penalty: The World Council Daniel used the boys' car in a bank of Churches. The Organization of robbery. n eye for an eye, a Conservative Rabbis. The North- Ironically, Harris' execution is ern California Ecumenical Council. tooth for a tooth." scheduled to occur barely a day So goes the of ten - Amnesty International and other after Easter—the Christian holiday death penalty foes have printed up i quoted ancient bib- commemorating the Resurrection lica"Al code of justici e and retribution shock posters depicting Jesus on of Christ, who Christians believe the cross, with the caption: "Maybe in the Old Testament. was a victim of capital punishment. But in the New Testament, Jesus the death penalty should have Although theological consider- been abolished a long time ago." says something entirely different: ations have generally not been the "You have heard that it was said, main arguments for or against .espite the activism on the 'an eye for an eye, a tooth for a Harris' execution, the Bible is a tooth' but I tell you . . . whoever | part of the clergy, there is a weapon that has been frequently tremendous gap between slaps you on your right cheek turn employed by both camps in the D! the pulpit and the pews. the other to him also." highly charged debate. This apparent biblical paradox According to a recent California "I think what happens is that Poll, a majority of people who mirrors a split in the religious people already have their own community over the morality and consider themselves to be spiritu- values and conclusions, then they ally minded support the death ethics of capital punishment. Does go back to the Bible to find the the first passage, from Deuterono- penalty. The poll found 887c of evidence," said Marvin Meyer, a Protestants and 77% of Catholics my 19:2). mean that the Bible professor of religion at Chapman condones the death penalty? Or is in favor of capital punishment. College in Orange County and a (The margin of error was 4%. Jews The second example, from the "Ser- death penalty opponent. "But you mon on the Mount" in Matthew and other people with religious can prove all sorts of things by affiliations other than Protestant or 6-.3S, truer to God's teachings? How manipulating the text and taking it Is a devout Christian to decide? Catholic were not sampled in large out of context. People used the enough numbers to provide an As the execution date of Robert Bible to justify slavery." Alton Harris draws near, both pro- accurate measure of their opinion.) and anti-death penalty forces are "ost of the outcry comes "There is such an overwhelming Recalling these and other Scripture from within the Catholic majority of Californians who favor passages to rationalize their posi- Mi. clergy. Cardinal Roger M. the death penalty that it doesn't tions. Mahony in Los Angeles has stated really matter what their religious Harris, 39, has been sentenced to the Catholic church's unequivocal background is," said Mark DiCam- die in the gas chamber Tuesday for opposition. illo. associate director of the Cali- the July 5, 1978, murders of two San Francisco Archbishop John fornia Poll. 16-year-old boys in San Diego. A Quinn has appealed to Gov. Pete Consequently, many religious jury found him guilty of forcing the Wilson to cancel the execution. leaders find themselves in an un- boys to drive their car to an Even Mother Teresa, the Catholic comfortable situation as bearers of isolated spot, shooting them, then nun famous for feeding India's an extremely unpopular message. "In upholding this position, we recognize that we are clearly in the minority," Mahony said. "None- theless, moral and ethical princi- Religious Preference ples cannot and will not be dictated and the Death Penalty by public opinion polls." The Rev. Bill Fling, one of the The California Poll, directed by Mervin Field, surveyed f>?5 few religious leaders to publicly California adults in March and found overwhelming support for support the death penalty, said the capital punishment, regardless of religious preference. The margin of opposition has strayed from the error is4.1%. teachings of the Bible. Because the percentages polled of Jews and people with religious He has been maintaining a vigil affiliations other than Protestant or Catholic were smaller than the in front of San Quentin prison for margin of error, their views could not be measured with any degree of the last few days—a determined accuracy. advocate of the death penally amid a sea of opponents. FAVtW OPPOSE NOOPMON U ' Ve seen that a lot of these people demonstrating • AllCalrfomians 80% 14% 6% li. against capital punishment • Protestants 88% 9% 3% are preachers and I wonder: 'How can they do that?' " said Fling, a • Catholics 77% 14% 9% Church of Christ pastor in Orange- • No Religious Preference 71% 26% 3% vale, just outside Sacramento. "If people believe the Bible to be the real, inspired word of God, then SOURCE The California Pal. Marcti. 1992 they believe that capital punish- ment is ordained by God." . ., r (k

In a recenl interview .Fling cited time afte r lime show that it was Jesus would have done," but Wil- several biblica versel s in support of God's view that a murdere rhas to son rejected Harris 'clemency plea. his theologica viewsl . pay with his life, "Fling said. "Not Fling acknowledge sthat a man There is Genesis 9:6: "Who so only does God |punish| people with can receive divine forgivenes sfor sheddelh man's blood ,by man shall death in the Bible but he com- his sins if he repents ."Bui forgive- his blood be shed for in th eimage mands man to do that to murderers ness from God means thai the man of God made he man." because huma n lif eis sacred and won'l have lo suffe rIhe nexl death Or. Number s35:16-17 : "And if God made us in his image." penally , which is hell." Fling said. he strike him with an instrumen tof However, death penalty foes "Jesus never marie forgiveness a iron, so that he die , he is a counter that this view strike sat license for a pardon from a civil murderer : The murderer shall the core of the Christian doctrin oef penally for murder." surely be put to death." forgiveness .Christians learn that The San Quenlin chaplain who And. Deuteronomy 19:21 ,in its God sacrificed his son, Jesus Christ, has counseled Harris for the last extended version. to atone for the sins of mankind. nine years agrees that divine for- "And thine eye shall not pity but The Bible says Jesus asked God to giveness canno terase the murders life shal lgo fo r life ,eye fo reye. forgive his killers because "they or the anguish tha t Harris has tooth for tooth, hand for hand ,foot know not what they do." Death inflicte don Ihe families of his for foot." penalty opponents have urged Gov. viclims. "All of these things repeated Pete Wilson to spare Harris "as New MC rARADOk, S6

S6 SATURDAY APRI. L18. 1992 LOS ANGELES TIMES PARADOX: Supporters, Foes of Death Penalty Cite Biblical Passages ConHnuwiriim SI that a criminal should receiv ethe ly, David repenled and God al- Arizona , Fowler was among the Yel the Rev. Earl Smit hsaid in same injuries that he inflicte dupon lowed him lo relurn lo his king- wilnesses at the April 6 execution an interview thi sweek that he does his victim as his punishment .In dom. of 43-year-old Donald Eugene not believe thai Harris shoul dbe early Palestine , the dispute was 'The Gospel has the Doss, Ihe founder of Death Pen- Harding ,who was sentenced to die execuled . He cited the abuse lhal usually selllcd privately between alty Focus, an organization work- for killin gthree businessmen in Harris received as a child and Ihe Ihe viclim and Ihe accused , nol by power to transform ing lo abolish capita lpunishment, 1980. Fowler ,who once considered remorse he has shown during pris- Ihe slale. anyone's life no matter believes that David' ssaga is a himsel f a "law and order man." on Bible sludy meelings as reasons Evenlually . Ihe leaders decided strong biblical argumen tagainst said the "nightmarish" 10-minute. Wilson should have spared him. lhal two people could nol suffe rIhe how terrible. Capital the dealh penalty. 32-second ordeal has made him exacl same bodily injurie s and punishment says we "The Gospe l has the power lo rethink his position. eferring lo the harsh code set changed the law. From then on, a don't believe transform anyone's life no mailer Rout in Deuteronomy, Smith person could no longer deman dan it and this how lerrible." Doss said. "Capital "Tdon'l have all Ihe answer*," said: "If we take the eye after the eye from the person who caused strikes at the heart of the punishmen tsays we don't believe A said Fowler, who served ae victim has expired , who are we Ihe loss of his eye bul could Gospel.' il and Ihis strikes at the heart of Harding's paslor for nine monlHs taking Ihe eye for? When we gel il, demand the monetary valu eof his Ihe Gospel." before his death. "Bu tmy slatq- does il replace lhal which has been eye. 'According to historians ,by 5th Dealh penally foe salso cite John menl lo people who'v enever been taken? I can't see where it has." Century BC. fine s had begun to 8:1 -11 lo supporl Iheir cause. lo an execulion is when you'r efar The Deuteronomy verse is prob- replace lex talionis in most instanc- The Rev. JOE M. DOSS The passages lei I Ihe slory of a away from Ihe details, it's a lot ably the passage most often quoted es. (bunder of Dealh Penalty Focus woman who wa sarresled for adul- easier to be dogmalic on things." in support of the death penalty .Al Dealh penally opponcnls main- lery. She was broughl befor eJesus He is nol Ihe firsl clergy member Harris' clemency hearing Wednes- tain lhal this ancient law, take nin by Ihe Scribes and Pharisees, who lo be deeply affecle dby an execu- day. Andy Mayeski brolhe, r of one its proper biblica lconlexl, was reminded Jesus lhat under Mosaic lion. ; victim ,referred to it in a letter to never meant lo endorse capital JOKI'IICI.IKS , K law. the woman mus tbe stoned lo The late Byron E. Eshelman, Gov. Wilson urgin gthat the execu- punishment. dealh. who served as San Quenlin's Dealh tion go forward. Sister Mary Anne Vincent a, Los have quid pro quo. You don't kill crimes. However , Jesus lold Ihem : "He Row chaplain in Ihe 1950s and According to historians, the "eye Angeles nun whose brothe r was someone because they crippled According to the Bible. David lhat is withou tsin among you ,let 1960s, became an ardenl crilic of for an eye" principle , formally murdered 10 years ago. believes your cow or knocked oul your sent Uriah ,a soldier in his army, to them cast the firs tslone." Ihe dealh penally. known as In talionis, originated in that the law was aimed al keeping loolh. If Ihey knock oul your tooth, Ihe fron tlines in Ihe hopes that he Bul no one did. and ,according lo During each execulion, Eshel- ancient Babylon aroun d1792 BC. It violence from escalaling al a lime knock out theirs." would be kille dbecause David had the passage, "when they heard it, man wrole in his 1962 book ,"Dealh comes from the Code of Hammu- when people were roulinely pul lo impregnate dthe man's wife ,Bath- being convicted by their own con- Row Chaplain, "he would say ti rabi , a set of 282 case laws that dealh for killin ga neighbor's live- n fact ,said the Rev. Joe M. Doss, sheba. Uriah ,who had just re- science, (they ] wenl out one by silenl prayer. covered a range of civi land crimi- slock. Ian Episcopa lpriesl in Palo Allo, turned home from another long one. beginnin gat the eldest . . . "Il would end wilh words only a nal issues from slavery to murder. "This was something written some of the most famou sfigure sin battle , had nol had se xwith his and Jesus was lef talone |with| the lilllc differen lfrom Ihose spoken Crimina l penaltie swere by no more than 1,000 years before biblica l histor y were murderers. wife in a long lime and David woman standing in his midst."' on Ihe cross," Eshelman wrote. means uniform: The ydepended Chrisl in a lime when 'an eye for an These include dMoses , who deliv- feared thai his secrel woul d be The Rev. Ralph Fowler knows "Oh God, have mercy upo nthis upon nol only Ihe sevcrily of the eye' was an improvemen lon the ered the Jews oul of Egypt ,and exposed. better than mosl how the theologi- morning as we prepare to take the offens e but Ihe slalus of Ihe existing situalion," said Vincent, David ,one of th egreat King sof Afte r Uriah was killed ,God cal arguments ove rthe dealh pen- life of this man .. . . Father, for- wrongdoe ras well. who opposes the death penally. ancien tIsrael .Bolh were forgiven forced Davi dto wander the Earth ally play oul i n real life . An give us. for we know nol whal we The basic idea of lex talionis was "What God was saying was ,let's by God aflcr repenling for their pursued by his enemies. Evenlual- Assemblie s of God paslor from do." ^ SAN

*.' 'r"i<:. ;•*:' !r V- .••'•**•.• r^; -i-fev :,.J: t y '.>Sv'\S?l V^-ft.,;:;^-'^;. -* •J'iv't^^v^- -:"2£-i i^gEi^»">„* ^t^~.-"-f "".;£-;*»*.*^- ?-•«,£ • •*» it * ••. •*• •-.,.':.'..v '- ..*--. j;. v«. ---- • - -,-•]'.:.. -..•...••' j,"- . v^J. ^: S.-'v • ';:-^^ ,',4 ^/:,O?M! '"ll" ""•' —" "- '— -'—" i •' ™ i" ii n.ii.i i».«HiiII iHIIIM -MMB^^^^^^^^^^^B^^— .^^•^^•^^•(••••^••••.•iwHM.^^^^^^^MMMaHa No death penalty Special circumstances TOTAL: 21 In keeping with the U.N. classification Date of Last The following countries' laws provide system, all of these countries and terri- Country abolition execution for the death penalty only in exception- tories can be considered abolitionist in Andorra 1990 1943 al cases such as military crimes or that they have not carried out execu- Australia 1985 1967 crimes committed in wartime. tions for the past 10 years or more. However, death sentences continue to Austria 1968 1950 Date of abolition Date of be imposed in some places, and not all Cambodia 1989 N/A for "ordinary" last Country crimes execution of them have a policy of regularly com- Cape Verde 1981 1835 muting sentences. Argentina 1984 Colombia 1910 1909 Brazil 1979 1855 Costa Rica 1877 N/A In use Canada 1976 1962 Czechoslovakia 1990 1988 Countries and territories which retain Cyprus 1983 1962 and use the death penalty for crimes. Denmark 1978 1950 El Salvador 1983 1973' Most of these places have carried out Dominican Republic 1966 N/A Fiji 1979 1964 executions during the past 10 years. Ecuador 1906 N/A Israel 1954 1962 Finland 1972 1944 tional has no record of executions but Italy 1947 1947 France 1981 1877 is unable to ascertain whether or not Malta 1971 1943 executions have been carried out. Germany 1949/19872 19492 Mexico 1937 Haiti 1987 1972' Country Nepal 1990 1979 Honduras 1956 1940 Peru 1979 1979 Afghanistan, Albania, Algeria, Angola, Hungary 1990 1988 Antigua and Barbuda, Armenia, Azerbai- Seychelles 1 Iceland 1928 1830 jan, Bahamas, Bangladesh, Barbados Spain 1978 1975 Ireland 1990 1954 Belarus, Belize, Benin, Botswana, Switzerland 1942 1944 Kiribati 1 Bulgaria, Burkina Faso, Burma, Burundi, United Kingdom 1973 1964 Cameroon, Central African Republic Liechtenstein 1987 1785 TOTAL: 16 countries Chad, Chile, China, Congo, Cuba, Luxembourg 1979 1949 Dominica, Egypt, Equatorial Guinea, Es- Marshall Islands 1 tonia, Ethiopia Micronesia 1 Not used Gabon, Gambia, Georgia, Ghana. Monaco 1962 1847 Countries and territories which retain Grenada, Guatemala, Guinea, Guinea- the death penalty for "ordinary" crimes Mozambique 1990 1986 Bissau, Guyana, India but have not executed anyone during Namibia 1990 1988' Indonesia, Iran, Iraq, Jamaica, Japan, the past 10 years or more. Jordan, Kazakhstan, Kenya, Kuwait, Netherlands 1982 1952 Date of Kyrgyzstan 1957 New Zealand 1989 Country last execution Laos, Latvia, Lebanon, Lesotho, Libe- Nicaragua 1979 1930 Bahrain 1977 ria, Libya, Lithuania, Malawi, Malaysia, Norway 1979 1948 Belgium 1950 Mali Panama 1903 Bermuda 1977 Mauritania, Mauritius, Moldova, Mon- Philippines 1987 1976 Bhutan 1964' golia, Morocco, North Korea, Nigeria, Oman Portugal 1976 1849' Bolivia 1974 Pakistan, Poland, Qatar, Russia, Romania 1989 1989 Brunei 1957 Rwanda, St. Chr stopher and Nevis, St. 1 San Marino 1865 1468' Comoros Lucia, St. Vincent and The Grenadines, Sao Tome 1990 1 Djibouti 1 Saudi Arabia Solomon Islands 1966 1 Greece 1972 Sierra Leone, Singapore, Somalia, Sweden 1972 1910 Hong Kong 1966 South Africa, South Korea, Sudan, Suri- Tuvalu 1 Ivory Coast name, Swaziland, Syria, Tadzhikistan Taiwan, Tanzania, Thailand, Tonga, Uruguay 1907 Madagascar 1958' Trinidad and tobago, Tunisia, Turkey, Vanuatu 1 Maldives 1952" Turkmenistan, Uganda, Ukraine Vatican City State 1969 Nauru 1 United Arab Emirates, United States Venezuela 1863 Niger 1976' of America, Uzbekistan, Vietnam, Ye- Papua New Guinea 1950 men, Yugoslavia Zaire, Zambia. Zimba- TOTAL: 44 countries Paraguay 1928 bwe

Senegal 1967 TOTAL: 106 countries and territories Sn Lanka 1976 'Date o* last knovvn e ecutio.n :Nc executions sir;;~ Togo West German, (FRG! 1949 and if Fast Ge.-rs-..' (GDR! in 1987 The las execute- ', tie FRG was >n Western Samoa 1 1949. the dale cl the s! executor in ;ne GL'- ;s r.-t SOURCE Amnesty Internation 1990 Death Penalty Returns in U.S., But Other Countries Spurn It

By Reynold* Balding cepted it," said Phillip Johnson, a backlash was that differences over Chronicle Stuff Writer professor at Boalt Hall School of the death penalty — like religion Many people thought Aaron Law and a former prosecutor in — break partly on cultural lines. Mitchell's execution in Califor- Visalia. "Instead, it created proce- Historically, strong support for the nia's gas chamber 25 years ago dural obstacles (to executions) and death penalty has come from peo- would be among the last in forfeited its moral leadership." ple who "resent elite culture — America. represented by academics, law- Swift BoiMoth The number of executions in yers and judges—that imposes its this country had dwindled from a The country jumped all over will on the rest of us," said John- high of 199 in 1935 to just one in the decision. Georgia Lieutenant son. 1966. Opinion polls in 1966 showed Governor Lester Maddox, a segre- • that a majority of Americans op- gationist of national notoriety, said Humon-Klghti Cenildtratlen posed capital punishment. Most of the Supreme Court decision offer- Other nations have encounter- the Western world had stopped ed "a license for anarchy, rape, ed similar resistance in their at- putting criminals to death. murder." Alabama Lieutenant tempts to abolish the death penal- But today, Robert Alton Harris Governor Jere Beasley said the jus- ty. Large majorities opposed aboli- is next in line on a U.S. death row tices "lost contact with the real tion of the death penalty by West that now includes 2,500 killers. world." Public support for the death penalty shot up to 67 percent Germany in the late 1940s, Britain The turning point came with in 1973. By 1974,28 states — includ- in the 1960s and Canada in the the U.S. Supreme ing California — had passed new 1970s. Court's 1972 deci- laws under which 100 people had The worldwide trend away sion striking down been sentenced to death. death penalty from capital punishment actually laws. The result- Today, many legal scholars sug- started in the United States in the ing public backlash pushed the gest that the court misread the rea- inid-1800s. Michigan, Rhode Island court into accepting capital pun- sons behind the backlash when it and Wisconsin all ended the prac- ishmont four years later, turning reinstated the death penalty. Many tice before Portugal, which in 1867 American law against an accelerat- factors that had nothing to do with became the first European nation ing trend among all but the capital punishment — namely, a to do so. world's most repressive govern- general resistance to the assertion Amnesty International, which ments to stop executing killers. of federal power — fueled the pub- considers the death penalty to be a Among the explanations for lic anger, according to scholars. violation of human rights, lists 81 the backlash: Other, bolder Western nations nations as "abolitionist countries." • CRIME: After declining for overcame such political concerns The death penalty remains in ef- decades, the murder rate doubled in their efforts to abolish the death fect mostly in the world's more re- in the United States between 1962 penalty, said William Bowers, prin- pressive nations, such as Iraq, Chi- and 1972. Americans were terri- cipal research scientist in the crim- le, Libya, North Korea and the fied of losing what many felt was inal justice department at North-"- People's Republic of China. the ultimate weapon against ruth- eastern University in Boston. less killers. QiiQlHled Support "The court got cold feet. It's • FRUSTRATION: American that simple," Bowers said. The latest U.S. polls on capital society was going through some of punishment show that support ap- its most dramatic social changes of proaches 80 percent. Abolitionists, the century, with the citizenry Seclol Frustration however, point out that support anxious and divided by fights over The nation's wrenching debate for the death penalty is qualified. civil rights, the Vietnam War, over the death penalty came at a For example, the numbers drop drugs, the then-fledgling women's time when its crime rate was high- dramatically when the public is movement and other matters. er — and rising faster — than al- asked whether it would still sup- Some analysts said the death pen- most anywhere else in the world. port executions if the inmate had alty provided an outlet for people In addition, violent demonstra- no possibility of parole or if the frustrated over the erosion of U.S. tions against the Vietnam War, ri- condemned had a mental illness. institutions. ots in Watts and Detroit and the assassinations of Martin Luther Some experts believe that cur- • STATES' RIGHTS: Having rent legal support for capital pun- fought a civil war to protect what King Jr. and John and Robert Ken- ishment is just a blip on this coun- they believed were their rights, nedy "made people feel like things were getting out of control," said try's historical screen. They main- Southern states recoiled at more tain that the United States will orders from the federal govern- Scott Sundby, a professor at Has- tings College of the Law. abolish the death penalty in the ment. Throughout the South, next two decades, especially as the America's execution belt, state leg- "The perception that crime is expansion of the death penalty islators reacted angrily to the high out of hand inevitably fuels the be- changes the debate from the theo- court's ruling. lief that we need to give govern- retical to a flesh-and-blood matter. Moreover, the high court had ment as much power to combat it left an opening for a return of the as possible," Sundby said. In the near term, the Harris ex- death penalty in its 1972 ruling on ecution is expected to increase the Georgia and Texas laws. The justic- Still, there is no direct correla- clamor for capital punishment. es stopped short of declaring exe- tion between the crime rate and 'There are those who say that cutions to be "cruel and unusual" public attitudes toward the death the state is justified in protecting punishment — and thus unconsti- penalty. For example, wide fluctu- its citizens from outlandish vio- tutional — in all cases. In essence, ations in crime rates since 1975 lence," said Eugene Sweeters, the the justices said the problem with have not caused corresponding San Francisco deputy district at- those laws was that they were of- movements in opinion polls on cap- torney in charge of prosecuting ten applied arbitrarily. ital punishment. "Night Stalker" Richard Ramirez, "If the Supreme Court had held In South Dakota, where the already convicted of 13 murders in the death penalty unconstitution- crime rate is low, support for the - Los Angeles. "If it is necessary to al, there would have been a fuss, death penalty is high. do that by exacting the ultimate but the country would have ac- Another factor in the public punishment, well so be it." 11 "It smacks of little more than a lottery •W "The one place that a man ought to get system." a square deal is in a courtroom, be he any The -Retired U.S. Supreme Court Justice color of the rainbow, but people have a way WUliam Brennan, Jr. of carrying their resentments right into a Ultimate Jury box." W "...we are the only Western democracy - Georgia State Senator Gary Parker, that still has capital punishment. In my Columbus Penalty view it should be abolished. Let me just add this: It does not deter murders. It W "It is the poor, the sick, the ignorant, the serves no purpose." powerless and the hated who are executed." -Retired U.S. Supreme Court Justice Lewis -Former U.S. Attorney General Ramsey R. Powell Jr. Clark A Dozen Quotes

¥ "The dea{h penalty differs from all other W "The discretion of judges and juries in forms of criminal punishment not in degree but in kind. It is unique in its total imposing the death penalty enables the Irrevocability. It is unique in its rejection penalty to be selectively applied, feeding of rehabilitation of the convict as the basic prejudices against the accused if he is poor purpose of criminal justice. And it is and despised, and lacking of political clout, unique, finally, in its absolute renunciation or if he is a member of a suspect or of all that is embodied in our concept of unpopular minority, and saving those who humanity." by social position may be in a more -Late U.S. Supreme Court Justice protected position. In ancient Hindu law, Potter Stewart a Brahman was exempt from capital punishment. . . We have, I fear, taken in * "We tolerate harsher, separate and practice that same position, partially as a unequal standards of justice for one half of result of making the death penalty the murderers in this country — those discretionary and partly as a result of the who have killed whites. By reserving the ability of the rich to purchase the services penalty of death for black defendants, for of the most respected and most resourceful the poor, or for those who have killed legal talent in the nation." whites, we perpetuate the ugly legacy of -Late U.S. Supreme Court Justice William slave times — teaching our children that O. Douglas some lives are inherently less precious than others. When we reserve capital ¥ The people have a constitutional right punishment for those who have no capital, to the death penalty and we'll do our best we tell all the world that justice in this to make it work rationally. But you can see country is bought, and not easily afforded what it's doing. Capital punishment is if your skin is black." destroying the system." -Joseph Lowery, President, Southern -Retired Chief Justice John Dixon, Christian Leadership Conference Louisiana Supreme Court "¥ "When a black man kills a white man or * "It is the deed that teaches, not the white woman, it's murder. When a white name we give it. Murder and capital man kills a black man or black woman, it's punishment are not opposites thr=t cancel justifiable homicide. And when a black one another, but similars that breed their man kills a black man or black woman, it's kind." just another dead nigger." -George Bernard Shaw -Georgia State Senator Gary Parker, Columbus W "Good people are always so convinced they're right." W "Remember, what you do to these men, -Last words of Barbara Graham, executed you do to God." June 3, 1955 'at San Quentin -Mother Theresa, speaking to a guard on San Quentin's Death Row WWW

r~ "The discretion ofjudges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the "" accused if he is poor and despised, and lacking of political clout, or if he ^ is a member of a suspect of unpopular minority, and saving those who _ by social position may be in a more protected position. In ancient Hindu law, a Brahman was exempt from capital punishment.... We have, I fear, r- taken in practice the same position, partially as a result of making the _^_^ death penalty discretionary and partly as a result of the ability of the rich I to purchase the services of the most respected and most resourceful legal ^ talent in the nation." •_-.

- Late U.S. Supreme Court Justice, William O. Douglas r

Prison during a vigil before the Robert Alton Harris execution. 4-20-92 photo by Alain Me Laughlin

\r photo: A anti-death penalty protester at sunset In front of San Quentl71 n State n