- 11/07/2001

The Broken Machinery Of Death

by Alan Berlow             

No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.

--Gregg v. Georgia

Twenty-five years ago this month, on July 2, 1976, the U.S. Supreme Court voted 7-2 in Gregg v. Georgia to reinstate the death penalty after a brief official hiatus. Implicit in the Gregg decision was the optimistic belief that the many problems identified by a previous Supreme Court decision, Furman v. Georgia, could be fixed. In 1972 the Furman Court had struck down hundreds of state laws that the justices deemed "arbitrary and capricious." But the majority in Gregg argued that "clear and objective standards" would minimize juror caprice and reduce discrimination. In an age of science, a "maturing society" could have a death penalty to be proud of.

A quarter-century and more than 700 executions later--including, last month, the first two federal executions in four decades--the promise of Gregg seems preposterously naive. Gregg's ambition was to rationalize sentencing and ensure that death sentences would be applied more equitably and only to the most egregious offenders. It hasn't worked out that way. Today in the United States more than 3,700 men and women await execution on death row. The overwhelming number of those put to death will be poor, members of a minority, uneducated, or of questionable sanity, and they will have been represented by some of the worst lawyers available. Clearly, it was absurd to assume that the state legislatures that had crafted the multitude of unconstitutional abominations decried by the Furman decision would suddenly fix them.

The nation has made a few important improvements since 1976. Concurrent with Gregg, the Supreme Court outlawed mandatory death sentences. The following year, it banned capital punishment in cases of nonhomicidal rape--a huge blow against one particularly racist aspect of the death penalty (between 1930 and 1972, of the 455 individuals executed in this country for rape, nine of every 10 were black). And all but three of the 38 death penalty states now offer "life without parole" as an alternative to the death sentence (although jurors frequently ignore the option, mistakenly believing that it doesn't work). During the past year, nearly half of the death penalty states have approved some sort of reform legislation, most often relating to DNA testing for prisoners who claim to be innocent. A few have also enacted new laws designed to improve the quality of representation provided to indigents, and five have approved bills banning execution of the mentally retarded.

Despite such efforts to "tinker with the machinery of death," as Justice Harry Blackmun once put it, growing numbers of Americans have begun to question the rationality of the system that executes people in their name. True, a majority of Americans support capital punishment and overwhelmingly supported the execution of Timothy McVeigh (including 58 percent of those who consider themselves death penalty opponents!). Yet recent polls reveal that 40 percent of the public also think that the penalty is not applied fairly and half think that there should be no more executions until a government commission thoroughly examines the system's fairness.

This growing skepticism stems from a combination of factors. First, 96 individuals since 1973 have been released from state death rows either because they were proved innocent (10 of them on the basis of DNA) or because courts found unconscionable due-process violations. Second, ample documentation has revealed how poorly the system works. Columbia Law School professor James S. Liebman's study A Broken System: Error Rates in Capital Cases, 1973-1995 found such serious errors in 68 percent of death penalty cases that the death sentence or underlying conviction was overturned. Third, many people are anxiously aware that the man currently occupying the Oval Office presided with unnerving nonchalance over a record 152 executions while governor of Texas, including several cases in which there were real questions of innocence and due process. And finally, skepticism about the death penalty was given bipartisan legitimacy last year when Illinois Governor George Ryan, a Republican supporter of the death penalty, halted executions in his state after learning that 13 innocent persons had been found on its death row.

But while overall support for the death penalty has declined in recent years, it is still as strong as it was when Gregg was decided in 1976 (66 percent then, 67 percent in February of this year). And the moral-absolutist arguments that once gave strength to the abolitionist movement have receded. While the Catholic Church and other religious organizations continue to argue that taking a life is morally wrong, the most common line of resistance to the death penalty has become, in effect: "You can have your death penalty if you meet certain preconditions that will effectively guarantee that innocent people won't be put to death."

That was the approach represented in the American Bar Association's 1997 call for a nationwide freeze on capital punishment until states can ensure that "death penalty cases are administered fairly and impartially, in accordance with due process." To date, however, not a single state has fully embraced the ABA's standards (which specifically call for competent counsel, restoration of the right to litigate constitutional claims after conviction, reforms to eliminate racial discrimination, and outlawing execution of juveniles and the mentally retarded). Meanwhile, much of whatever progress individual states have made in increasing fairness has been rolled back by Supreme Court rulings and congressional actions that undermine the rights of defendants.

Even the paramount achievement of Gregg--the repudiation of absolute juror discretion in sentencing--has been diluted by the current Court, which last year allowed the state of Virginia to execute an inmate despite the fact that jurors in the case clearly didn't understand that they could reject a death sentence if they believed there was substantial mitigating evidence. This was precisely the pre-Furman problem: Jurors could impose death without considering mitigation.

Twenty-five years after Gregg, obvious racial discrimination in the administration of the death penalty remains routine--notwithstanding U.S. Attorney General John Ashcroft's recent denial of that fact. Nearly 90 percent of the federal inmates on death row are minorities. According to a Justice Department study released in September 2000, more than 76 percent of the cases in which federal prosecutors had sought the death penalty during the previous five years involved a defendant who belonged to a minority group. In the same study, U.S. attorneys were nearly twice as likely to recommend death for a black defendant if the victim was nonblack than if the victim was black. (In North Carolina, death sentences were imposed three and a half times more frequently when the victim was white rather than black.)

Under the tenets established by Gregg, you might conclude that this would be unconstitutional. You would be wrong. In the Gregg decision, the Supreme Court said that a constitutional violation was established if a plaintiff demonstrated a "pattern of arbitrary and capricious sentencing." Since then, however, the Court appears to have abandoned this logic. In 1987, for example, it ruled in McCleskey v. Kemp that racial disparities are "an inevitable part of our criminal justice system." Thus, a defendant in a capital case now has a harder time demonstrating discrimination than someone arguing an employment discrimination case does.

In Gregg the Court also asked states to eliminate disparities in criminal sentences through what is known as "proportionality review." But can there be any greater disparity than between life and death? In 1983, John Eldon Smith died in Georgia's electric chair while his wife, Elizabeth--the "mastermind" behind the murders the Smiths committed--received the proportionally less significant sentence of life in prison only because her lawyer thought to object to the composition of the jury pool (women were underrepresented) while her husband's lawyer did not.

Though the Court at the same time ruled that the death penalty must "be imposed fairly and with reasonable consistency or not at all," it's hard to find consistency in the case of Jesse Tafero. Tafero was executed in Florida's electric chair in 1990 while his co-defendant, Sonia Jacobs--convicted and sentenced to death on exactly the same evidence--was released two years later after a U.S. appeals court found prosecutorial suppression of exculpatory evidence and perjury by the actual killer. Had Tafero lived another two years, he too would probably be free.

For most members of Congress, ensuring fairness in the death penalty process is less urgent than demonstrating that they're "tough on crime." How else to explain Congress's decision to defund postconviction defender organizations that once provided a useful mechanism to check legally flawed death sentences? Or Congress's passage, one year after the Oklahoma City bombing, of the Anti-Terrorism and Effective Death Penalty Act, which decimated habeas corpus review not just for death row inmates but for everyone else as well?

Proponents of the Effective Death Penalty Act said that the law was needed to shorten the time between conviction and execution to as little as four to six years (the average is now 7.9 years). But it has taken 11 years, on average, to establish reversible error in capital cases. Among the 20 innocent people Florida has discovered on its death row was James Richardson, whose innocence was established only in 1989, after he'd spent 21 years in prison. And last year, after Frank Lee Smith died of cancer in his 14th year on Florida's death row, DNA tests established that another man had been guilty of the rape and murder of an eight-year-old girl for which Smith had been sentenced to die.

@Drop Cap:hat is wrong with the death penalty system as it functions in this country today? Just about everything. But with more than 700 executions under our belts since 1976, the political difficulty of owning up to the fact that at least some of these people were unfairly executed--that the system is broken and has been for a long time--cannot be underestimated.

Nevertheless, with Democrats now in control of the Senate, it should be possible to gain passage of the Innocence Protection Act, which would impose a DNA-testing requirement, pressure states to improve counsel for indigent capital defendants, and address such other important issues as procedural barriers to habeas corpus review and the execution of juveniles and the mentally retarded. Meanwhile, the best near-term hope for reform of the nation's death penalty laws resides with state moratorium initiatives and in the seven states where special commissions have been set up to examine capital punishment. The most significant of these is in Illinois, where a diverse panel appointed by Governor Ryan is preparing a comprehensive appraisal of the state's disastrous death penalty machinery. Ryan came close to executing Anthony Porter, an innocent man, and says he wants a system that will provide a "moral certainty" that anyone condemned to death is truly guilty. Ryan seems fully aware of just how difficult it may be for human institutions to provide the kind of certainty he seeks. With any luck, his commission will conclude that it's impossible. Alan Berlow.